| SAUL CENTERS INC Item 1A Risk Factors RISK FACTORS Before investing in our securities, you should consider carefully the risks described in this prospectus, together with the other information incorporated by reference into this prospectus |
| If any of the following risks actually occur, our business, financial condition and operating results could be materially adversely affected |
| Revenue from our properties may be reduced or limited if the retail operations of our tenants are not successful |
| Revenue from our properties depends primarily on the ability of our tenants to pay the full amount of rent due under their leases on a timely basis |
| Some of our leases provide for the payment, in addition to base rent, of additional rent above the base amount according to a specified percentage of the gross sales generated by the tenants |
| The amount of rent we receive from our tenants generally will depend in part on the success of our tenants’ retail operations, making us vulnerable to general economic downturns and other conditions affecting the retail industry |
| Any reduction in our tenants’ ability to pay base rent or percentage rent may adversely affect our financial condition and results of operations |
| Our ability to increase our net income depends on the success and continued presence of our shopping center “anchor” tenants and other significant tenants |
| Our net income could be adversely affected in the event of a downturn in the business, or the bankruptcy or insolvency, of any anchor store or anchor tenant |
| Our largest shopping center anchor tenant is Giant Food, which accounted for 5dtta3prca of our total revenues for the year ended December 31, 2005 |
| The closing of one or more anchor stores prior to the expiration of the lease of that store or the termination of a lease by one or more of a property’s anchor tenants could adversely affect that property and result in lease terminations by, or reductions in rent from, other tenants whose leases may permit termination or rent reduction in those circumstances or whose own operations may suffer as a result |
| This could reduce our net income |
| We may experience difficulty or delay in renewing leases or re-leasing space |
| We derive most of our revenue directly or indirectly from rent received from our tenants |
| We are subject to the risks that, upon expiration, leases for space in our properties may not be renewed, the space may not be re-leased, or the terms of renewal or re-lease, including the cost of required renovations or concessions to tenants, may be less favorable than current lease terms |
| As a result, our results of operations and our net income could be reduced |
| 13 ______________________________________________________________________ [40]Table of Contents We have substantial relationships with members of The Saul Organization whose interests could conflict with the interests of other stockholders |
| Saul and his son and our President, B Francis Saul III, are members of The Saul Organization, and persons associated with The Saul Organization constitute four of the 12 members of our Board of Directors |
| In addition, as of December 31, 2005, Mr |
| Saul beneficially owned, for purposes of SEC reporting, 6cmam852cmam000 shares of our common stock representing 41dtta1prca of our issued and outstanding shares of common stock |
| Saul also beneficially owned, as of December 31, 2005, 5cmam310cmam000 units of the Partnership |
| In general, these units are convertible into shares of our common stock on a one-for-one basis |
| However, under the terms of the limited partnership agreement of the Partnership, at the current time, most of these units may not be converted into shares of our common stock because their conversion would cause Mr |
| Saul and his affiliates to exceed the ownership limitation under our articles of incorporation, which restricts the amount of our equity they may constructively or beneficially own, denoted by reference to provisions of the Internal Revenue Code of 1986, as amended, which we refer to as the Code |
| The ownership limitation set forth in our articles of incorporation, 24dtta9prca of our issued and outstanding equity securities (which includes both common and preferred stock), has by action of our Board of Directors been increased to 29dtta9prca |
| As calculated under the articles of incorporation, Mr |
| Saul beneficially owns approximately 29dtta0prca of our issued and outstanding equity securities |
| The Board has approved an amendment to our articles of incorporation to increase the ownership limitation that applied to Mr |
| Saul and his affiliates to 39dtta9prca |
| The amendment will be submitted to the Company’s stockholders for approval at the 2006 annual meeting of stockholder |
| As a result of these relationships, members of The Saul Organization will be in a position to exercise significant influence over our affairs, which influence might not be consistent with the interests of some, or a majority, of our stockholders |
| Management Time |
| Our Chief Executive Officer, President, Vice President-Chief Accounting Officer and Senior Vice President-General Counsel are also officers of various members of The Saul Organization |
| Although we believe that these officers spend sufficient management time to meet their responsibilities as our officers, the amount of management time devoted to us will depend on our specific circumstances at any given point in time |
| As a result, in a given period, these officers may spend less than a majority of their management time on our matters |
| Over extended periods of time, we believe that our Chief Executive Officer will spend less than a majority of his management time on Company matters, while our President, Vice President-Chief Accounting Officer and Senior Vice President-General Counsel may or may not spend less than a majority of their time on our matters |
| Exclusivity and Right of First Refusal Agreements |
| We will acquire, develop, own and manage shopping center properties and will own and manage other commercial properties, and, subject to certain exclusivity agreements and rights of first refusal to which we are a party, The Saul Organization will continue to develop, acquire, own and manage commercial properties and own land suitable for development as, among other things, shopping centers and other commercial properties |
| Therefore, conflicts could develop in the allocation of acquisition and development opportunities with respect to commercial properties other than shopping centers and with respect to development sites, as well as potential tenants and other matters, between us and The Saul Organization |
| The agreement relating to exclusivity and the right of first refusal between us and The Saul Organization (other than Chevy Chase Bank, FSB) generally requires The Saul Organization to conduct its shopping center business exclusively through us and to grant us a right of first refusal to purchase commercial properties and development sites in certain market areas that become available to The Saul Organization |
| The Saul Organization has granted the right of first refusal to us, acting through our independent directors, in order to minimize potential conflicts with respect to commercial properties and development sites |
| We and The Saul Organization have entered into this agreement in order to minimize conflicts with respect to shopping centers and certain of our commercial properties |
| We share with The Saul Organization certain ancillary functions, such as computer and payroll services, benefits administration and in-house legal services |
| The terms of all sharing arrangements, including payments related thereto, are reviewed periodically by our audit committee, which is comprised solely of independent directors |
| Included in our general and administrative expenses for the year ended December 31, 2005 are charges totaling dlra3cmam462cmam000, related to such shared services, which included rental payments for the Company’s headquarters lease, that were billed by The Saul Organization |
| Although we believe that the amounts allocated to us for such shared services represent a fair allocation between us and The Saul Organization, we have not obtained a third party appraisal of the value of these services |
| Related Party Rents |
| Chevy Chase Bank leases space in several of the shopping centers owned by us |
| The total rental income from Chevy Chase Bank for the year ended December 31, 2005 was dlra1cmam768cmam000, representing approximately 1dtta4prca of our total revenue for such period |
| Although we believe that these leases have comparable terms to leases we have entered into with third-party tenants, the terms of these leases were not set as a result of arm’s-length negotiation |
| In addition, because Chevy Chase Bank is a member of The Saul Organization, we may be less inclined to take an action or the timing of any action could be influenced if there is a default |
| The terms of any lease with Chevy Chase Bank are approved in advance by our audit committee, which is comprised solely of independent directors |
| In addition, the lease for our corporate headquarters, which commenced in March 2002, is with a member of The Saul Organization |
| The Company’s corporate headquarters lease is leased by a member of The Saul Organization |
| The 10-year lease provides for base rent escalated at 3prca per year, with payment of a pro-rata share of operating expenses over a base year amount |
| The Company and The Saul Organization entered into a Shared Services Agreement whereby each party pays an allocation of total rental payments on a percentage proportionate to the number of employees employed by each party |
| The Company’s rent payment for the year ended December 31, 2005 was dlra661cmam000 |
| Although the Company believes that this lease has comparable terms to what would have been obtained from a third party landlord, it did not seek bid proposals from any independent third parties when entering into its new corporate headquarters lease |
| Conflicts Based on Individual Tax Considerations |
| The tax basis of members of The Saul Organization in our portfolio properties which were contributed to certain partnerships at the time of our initial public offering in 1993 was substantially less than the fair market value thereof at the time of their contribution |
| In the event of our disposition of such properties, a disproportionately large share of the gain for federal income tax purposes would be allocated to members of The Saul Organization |
| In addition, future reductions of the level of our debt, or future releases of the guarantees or indemnities with respect thereto by members of The Saul Organization, would cause members of The Saul Organization to be considered, for federal income tax purposes, to have received constructive distributions |
| Depending on the overall level of debt and other factors, these distributions could be in excess of The Saul Organization’s bases in their Partnership units, in which case such excess constructive distributions would be taxable |
| Consequently, it is in the interests of The Saul Organization that we continue to hold the contributed portfolio properties, that a portion of our debt remains outstanding or is refinanced and that The Saul Organization guarantees and indemnities remain in place, in order to defer the taxable gain to members of The Saul Organization |
| Therefore, The Saul Organization may seek to cause us to retain the contributed portfolio properties, and to refrain from reducing our debt or releasing The Saul Organization guarantees and indemnities, even when such action may not be in the interests of some, or a majority, of our stockholders |
| In order to minimize these conflicts, decisions as to sales of the portfolio properties, or any refinancing, repayment or release of guarantees and indemnities with respect to our debt, will be made by the independent directors |
| Ability to Block Certain Actions |
| Under applicable law and the limited partnership agreement of the Partnership, consent of the limited partners is required to permit certain actions, including the sale of all or substantially all of the Partnership’s assets |
| Therefore, members of The Saul Organization, through their status as limited partners in the Partnership, could prevent the taking of any such actions, even if they were in the interests of some, or a majority, of our stockholders |
| 15 ______________________________________________________________________ [42]Table of Contents The amount of debt we have and the restrictions imposed by that debt could adversely affect our business and financial condition |
| As of December 31, 2005, we had approximately dlra482dtta4 million of debt outstanding, dlra471dtta9 million of which was long-term fixed rate debt and was secured by 32 of our properties |
| The remaining dlra10dtta5 million of outstanding debt was borrowed under the revolving credit facility |
| We currently have a general policy of limiting our borrowings to 50 percent of asset value, ie, the value of our portfolio, as determined by our Board of Directors by reference to the aggregate annualized cash flow from our portfolio |
| Our organizational documents contain no limitation on the amount or percentage of indebtedness which we may incur |
| Therefore, the Board of Directors could alter or eliminate the current limitation on borrowing at any time |
| If our debt capitalization policy were changed, we could become more highly leveraged, resulting in an increase in debt service that could adversely affect our operating cash flow and our ability to make expected distributions to stockholders, and in an increased risk of default on our obligations |
| We have established our debt capitalization policy relative to asset value, which is computed by reference to the aggregate annualized cash flow from the properties in our portfolio rather than relative to book value |
| We have used a measure tied to cash flow because we believe that the book value of our portfolio properties, which is the depreciated historical cost of the properties, does not accurately reflect our ability to borrow |
| Asset value, however, is somewhat more variable than book value, and may not at all times reflect the fair market value of the underlying properties |
| The amount of our debt outstanding from time to time could have important consequences to our stockholders |
| For example, it could: • require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing funds available for operations, property acquisitions and other appropriate business opportunities that may arise in the future; • limit our ability to obtain any additional financing we may need in the future for working capital, debt refinancing, capital expenditures, acquisitions, development or other general corporate purposes; • make it difficult to satisfy our debt service requirements; • limit our ability to make distributions on our outstanding common and preferred stock; • require us to dedicate increased amounts of our cash flow from operations to payments on our variable rate, unhedged debt if interest rates rise; • limit our flexibility in planning for, or reacting to, changes in our business and the factors that affect the profitability of our business, which may place us at a disadvantage compared to competitors with less debt or debt with less restrictive terms; and • limit our ability to obtain any additional financing we may need in the future for working capital, debt refinancing, capital expenditures, acquisitions, development or other general corporate purposes |
| Our ability to make scheduled payments of the principal of, to pay interest on, or to refinance, our indebtedness will depend primarily on our future performance, which to a certain extent is subject to economic, financial, competitive and other factors described in this section |
| If we are unable to generate sufficient cash flow from our business in the future to service our debt or meet our other cash needs, we may be required to refinance all or a portion of our existing debt, sell assets or obtain additional financing to meet our debt obligations and other cash needs |
| Our ability to refinance, sell assets or obtain additional financing may not be possible on terms that we would find acceptable |
| We are obligated to comply with financial and other covenants in our debt that could restrict our operating activities, and the failure to comply could result in defaults that accelerate the payment under our debt |
| Our secured debt generally contains customary covenants, including, among others, provisions: • relating to the maintenance of the property securing the debt; 16 ______________________________________________________________________ [43]Table of Contents • restricting our ability to assign or further encumber the properties securing the debt; and • restricting our ability to enter into certain new leases or to amend or modify certain existing leases without obtaining consent of the lenders |
| The covenants in our unsecured debt include, among others, provisions restricting our ability to: • incur additional unsecured debt; • guarantee additional debt; • make certain distributions, investments and other restricted payments, including distribution payments on our outstanding stock; • create certain liens; • increase our overall secured and unsecured borrowing beyond certain levels; and • consolidate, merge or sell all or substantially all of our assets |
| Our ability to meet some of the covenants in our debt, including covenants related to the condition of the property or payment of real estate taxes, may be dependent on the performance by our tenants under their leases |
| In addition, our line of credit requires us and our subsidiaries to satisfy financial covenants |
| The material financial covenants require us, on a consolidated basis, to: • limit the amount of debt so as to maintain a gross asset value in excess of liabilities of at least dlra400 million plus 90prca of our future net equity proceeds; • limit the amount of debt as a percentage of gross asset value (leverage ratio) to 60prca or less; • limit the amount of debt so that interest expense coverage is not less than 2dtta1 to 1 on a trailing four quarter basis; • limit the amount of debt so that interest, scheduled principal amortization and preferred dividend coverage is not less than 1dtta55 to 1 on a trailing four quarter basis; and • limit the amount of variable rate debt and debt with initial loan terms of less than 5 years to no more than 40prca of total debt |
| As of December 31, 2005, we were in compliance with all such covenants |
| If we were to breach any of our debt covenants and did not cure the breach within any applicable cure period, our lenders could require us to repay the debt immediately, and, if the debt is secured, could immediately begin proceedings to take possession of the property securing the loan |
| Some of our debt arrangements are cross-defaulted, which means that the lenders under those debt arrangements can put us in default and require immediate repayment of their debt if we breach and fail to cure a covenant under certain of our other debt obligations |
| As a result, any default under our debt covenants could have an adverse effect on our financial condition, our results of operations, our ability to meet our obligations and the market value of our shares |
| Our development activities are inherently risky |
| The ground-up development of improvements on real property, as opposed to the renovation and redevelopment of existing improvements, presents substantial risks |
| In addition to the risks associated with real estate investment in general as described elsewhere, the risks associated with our remaining development activities include: • significant time lag between commencement and completion subjects us to greater risks due to fluctuation in the general economy; • failure or inability to obtain construction or permanent financing on favorable terms; • expenditure of money and time on projects that may never be completed; 17 ______________________________________________________________________ [44]Table of Contents • inability to achieve projected rental rates or anticipated pace of lease-up; • higher-than-estimated construction costs, including labor and material costs; and • possible delay in completion of the project because of a number of factors, including weather, labor disruptions, construction delays or delays in receipt of zoning or other regulatory approvals, or acts of God (such as fires, earthquakes or floods) |
| Redevelopments and acquisitions may fail to perform as expected |
| Our investment strategy includes the redevelopment and acquisition of community and neighborhood shopping centers that are anchored by supermarkets, drugstores or high volume, value-oriented retailers that provide consumer necessities |
| The redevelopment and acquisition of properties entails risks that include the following, any of which could adversely affect our results of operations and our ability to meet our obligations: • our estimate of the costs to improve, reposition or redevelop a property may prove to be too low, and, as a result, the property may fail to achieve the returns we have projected, either temporarily or for a longer time; • we may not be able to identify suitable properties to acquire or may be unable to complete the acquisition of the properties we identify; • we may not be able to integrate new developments or acquisitions into our existing operations successfully; • properties we redevelop or acquire may fail to achieve the occupancy or rental rates we project at the time we make the decision to invest, which may result in the properties’ failure to achieve the returns we projected; • our pre-acquisition evaluation of the physical condition of each new investment may not detect certain defects or identify necessary repairs until after the property is acquired, which could significantly increase our total acquisition costs; and • our investigation of a property or building prior to our acquisition, and any representations we may receive from the seller, may fail to reveal various liabilities, which could reduce the cash flow from the property or increase our acquisition cost |
| Our ability to grow will be limited if we cannot obtain additional capital |
| Our growth strategy includes the redevelopment of properties we already own and the acquisition of additional properties |
| Because we are required to distribute to our stockholders at least 90prca of our taxable income each year to continue to qualify as a real estate investment trust, or REIT, for federal income tax purposes, in addition to our undistributed operating cash flow, we rely upon the availability of debt or equity capital to fund our growth, which financing may or may not be available on favorable terms or at all |
| The debt could include mortgage loans from third parties or the sale of debt securities |
| Equity capital could include our common stock or preferred stock |
| Additional financing, refinancing or other capital may not be available in the amounts we desire or on favorable terms |
| Our access to debt or equity capital depends on a number of factors, including the market’s perception of our growth potential, our ability to pay dividends, and our current and potential future earnings |
| Depending on the outcome of these factors, we could experience delay or difficulty in implementing our growth strategy on satisfactory terms, or be unable to implement this strategy |
| Our performance and value are subject to general risks associated with the real estate industry |
| Our economic performance and the value of our real estate assets, and, consequently, the value of our investments, are subject to the risk that if our properties do not generate revenues sufficient to meet our operating expenses, including debt service and capital expenditures, our cash flow and ability to pay distributions to our stockholders will be adversely affected |
| As a real estate company, we are susceptible to the following real estate industry risks: • economic downturns in the areas where our properties are located; • adverse changes in local real estate market conditions, such as oversupply or reduction in demand; 18 ______________________________________________________________________ [45]Table of Contents • changes in tenant preferences that reduce the attractiveness of our properties to tenants; • zoning or regulatory restrictions; • decreases in market rental rates; • weather conditions that may increase energy costs and other operating expenses; • costs associated with the need to periodically repair, renovate and re-lease space; and • increases in the cost of adequate maintenance, insurance and other operating costs, including real estate taxes, associated with one or more properties, which may occur even when circumstances such as market factors and competition cause a reduction in revenues from one or more properties, although real estate taxes typically do not increase upon a reduction in such revenues |
| Many real estate costs are fixed, even if income from our properties decreases |
| Our financial results depend primarily on leasing space in our properties to tenants on terms favorable to us |
| Costs associated with real estate investment, such as real estate taxes and maintenance costs, generally are not reduced even when a property is not fully occupied, rental rates decrease, or other circumstances cause a reduction in income from the investment |
| As a result, cash flow from the operations of our properties may be reduced if a tenant does not pay its rent or we are unable to rent our properties on favorable terms |
| Under those circumstances, we might not be able to enforce our rights as landlord without delays, and may incur substantial legal costs |
| Additionally, new properties that we may acquire or develop may not produce any significant revenue immediately, and the cash flow from existing operations may be insufficient to pay the operating expenses and debt service associated with that property until the property is fully leased |
| Competition may limit our ability to purchase new properties and generate sufficient income from tenants |
| Numerous commercial developers and real estate companies compete with us in seeking tenants for properties and properties for acquisition |
| This competition may: • reduce properties available for acquisition; • increase the cost of properties available for acquisition; • reduce rents payable to us; • interfere with our ability to attract and retain tenants; • lead to increased vacancy rates at our properties; and • adversely affect our ability to minimize expenses of operation |
| Retailers at our shopping center properties also face increasing competition from outlet stores, discount shopping clubs, and other forms of marketing of goods, such as direct mail, internet marketing and telemarketing |
| This competition may reduce percentage rents payable to us and may contribute to lease defaults and insolvency of tenants |
| If we are unable to continue to attract appropriate retail tenants to our properties, or to purchase new properties in our geographic markets, it could materially affect our ability to generate net income, service our debt and make distributions to our stockholders |
| We may be unable to sell properties when appropriate because real estate investments are illiquid |
| Real estate investments generally cannot be sold quickly |
| In addition, there are some limitations under federal income tax laws applicable to real estate and to REITs in particular that may limit our ability to sell our assets |
| We may not be able to alter our portfolio promptly in response to changes in economic or other conditions |
| Our inability to respond quickly to adverse changes in the performance of our investments could have an adverse effect on our ability to meet our obligations and make distributions to our stockholders |
| 19 ______________________________________________________________________ [46]Table of Contents Our insurance coverage on our properties may be inadequate |
| We carry comprehensive insurance on all of our properties, including insurance for liability, fire, flood, terrorism and rental loss |
| These policies contain coverage limitations |
| We believe this coverage is of the type and amount customarily obtained for or by an owner of real property assets |
| We intend to obtain similar insurance coverage on subsequently acquired properties |
| As a consequence of the September 11, 2001 terrorist attacks and other significant losses incurred by the insurance industry, the availability of insurance coverage has decreased and the prices for insurance have increased |
| In addition, insurance companies may no longer offer coverage against certain types of losses, such as losses due to terrorist acts and toxic mold, or, if offered, the expense of obtaining these types of insurance may not be justified |
| We therefore may cease to have insurance coverage against certain types of losses and/or there may be decreases in the limits of insurance available |
| If an uninsured loss or a loss in excess of our insured limits occurs, we could lose all or a portion of the capital we have invested in a property, as well as the anticipated future revenue from the property, but still remain obligated for any mortgage debt or other financial obligations related to the property |
| Material losses in excess of insurance proceeds may occur in the future |
| Also, due to inflation, changes in codes and ordinances, environmental considerations and other factors, it may not be feasible to use insurance proceeds to replace a building after it has been damaged or destroyed |
| Events such as these could adversely affect our results of operations and our ability to meet our obligations, including distributions to our stockholders |
| Environmental laws and regulations could reduce the value or profitability of our properties |
| All real property and the operations conducted on real property are subject to federal, state and local laws, ordinances and regulations relating to hazardous materials, environmental protection and human health and safety |
| Under various federal, state and local laws, ordinances and regulations, we and our tenants may be required to investigate and clean up certain hazardous or toxic substances released on or in properties we own or operate, and also may be required to pay other costs relating to hazardous or toxic substances |
| This liability may be imposed without regard to whether we or our tenants knew about the release of these types of substances or were responsible for their release |
| The presence of contamination or the failure to properly remediate contamination at any of our properties may adversely affect our ability to sell or lease those properties or to borrow using those properties as collateral |
| The costs or liabilities could exceed the value of the affected real estate |
| We are not aware of any environmental condition with respect to any of our properties that management believes would have a material adverse effect on our business, assets or results of operations taken as a whole |
| The uses of any of our properties prior to our acquisition of the property and the building materials used at the property are among the property-specific factors that will affect how the environmental laws are applied to our properties |
| If we are subject to any material environmental liabilities, the liabilities could adversely affect our results of operations and our ability to meet our obligations |
| We cannot predict what other environmental legislation or regulations will be enacted in the future, how existing or future laws or regulations will be administered or interpreted or what environmental conditions may be found to exist on the properties in the future |
| Compliance with existing and new laws and regulations may require us or our tenants to spend funds to remedy environmental problems |
| Our tenants, like many of their competitors, have incurred, and will continue to incur, capital and operating expenditures and other costs associated with complying with these laws and regulations, which will adversely affect their potential profitability |
| Generally, our tenants must comply with environmental laws and meet remediation requirements |
| Our leases typically impose obligations on our tenants to indemnify us from any compliance costs we may incur as a result of the environmental conditions on the property caused by the tenant |
| If a tenant fails to or cannot comply, we could be forced to pay these costs |
| If not addressed, environmental conditions could impair our ability to sell or re-lease the affected properties in the future or result in lower sales prices or rent payments |
| The Americans with Disabilities Act of 1990 could require us to take remedial steps with respect to newly acquired properties |
| The properties, as commercial facilities, are required to comply with Title III of the Americans with Disabilities Act of 1990 |
| Investigation of a property may reveal non-compliance with this Act |
| The requirements of the Act, or of other federal, state or local laws, also may change in the future and restrict further renovations of our properties with respect to access for disabled persons |
| Future compliance with the Act may require expensive changes to the properties |
| 20 ______________________________________________________________________ [47]Table of Contents The revenues generated by our tenants could be negatively affected by various federal, state and local laws to which they are subject |
| We and our tenants are subject to a wide range of federal, state and local laws and regulations, such as local licensing requirements, consumer protection laws and state and local fire, life-safety and similar requirements that affect the use of the properties |
| The leases typically require that each tenant comply with all regulations |
| Failure to comply could result in fines by governmental authorities, awards of damages to private litigants, or restrictions on the ability to conduct business on such properties |
| Non-compliance of this sort could reduce our revenues from a tenant, could require us to pay penalties or fines relating to any non-compliance, and could adversely affect our ability to sell or lease a property |
| Failure to qualify as a REIT for federal income tax purposes would cause us to be taxed as a corporation, which would substantially reduce funds available for payment of distributions |
| We believe that we are organized and qualified as a REIT, and currently intend to operate in a manner that will allow us to continue to qualify as a REIT for federal income tax purposes under the Code |
| However, the IRS could successfully assert that we are not qualified as such |
| In addition, we may not remain qualified as a REIT in the future |
| Qualification as a REIT involves the application of highly technical and complex Code provisions |
| The complexity of these provisions and of the applicable income tax regulations that have been issued under the Code by the United States Department of Treasury is greater in the case of a REIT that holds its assets in partnership form |
| Certain facts and circumstances not entirely within our control may affect our ability to qualify as a REIT For example, in order to qualify as a REIT, at least 95prca of our gross income in any year must be derived from qualifying rents and other income |
| Satisfying this requirement could be difficult, for example, if defaults by tenants were to reduce the amount of income from qualifying rents |
| Also, we must make annual distributions to stockholders of at least 90prca of our net taxable income (excluding capital gains) |
| In addition, new legislation, new regulations, new administrative interpretations or new court decisions may significantly change the tax laws with respect to qualification as a REIT or the federal income tax consequences of such qualification |
| If we fail to qualify as a REIT: • we would not be allowed a deduction for dividend distributions to stockholders in computing taxable income; • we would be subject to federal income tax at regular corporate rates; • we could be subject to the federal alternative minimum tax; • unless we are entitled to relief under specific statutory provisions, we could not elect to be taxed as a REIT for four taxable years following the year during which we were disqualified; • we could be required to pay significant income taxes, which would substantially reduce the funds available for investment and for distribution to our stockholders for each year in which we failed to qualify; and • we would no longer be required by law to make any distributions to our stockholders |
| We believe that the Partnership is treated as a partnership, and not as a corporation, for federal income tax purposes |
| If the IRS were to challenge successfully the status of the Partnership as a partnership for federal income tax purposes: • the Partnership would be taxed as a corporation; • we would cease to qualify as a REIT for federal income tax purposes; and • the amount of cash available for distribution to our stockholders would be substantially reduced |
| We may be required to incur additional debt to qualify as a REIT As a REIT, we must make annual distributions to stockholders of at least 90prca of our REIT taxable income |
| We are subject to income tax on amounts of undistributed REIT taxable income and net capital gain |
| In addition, we 21 ______________________________________________________________________ [48]Table of Contents would be subject to a 4prca excise tax if we fail to distribute sufficient income to meet a minimum distribution test based on our ordinary income, capital gain and aggregate undistributed income from prior years |
| We intend to make distributions to stockholders to comply with the Code’s distribution provisions and to avoid federal income and excise tax |
| We may need to borrow funds to meet our distribution requirements because: • our income may not be matched by our related expenses at the time the income is considered received for purposes of determining taxable income; and • non-deductible capital expenditures or debt service requirements may reduce available cash but not taxable income |
| In these circumstances, we might have to borrow funds on unfavorable terms and even if our management believes the market conditions make borrowing financially unattractive |
| The structure of our leases may jeopardize our ability to qualify as a REIT If the IRS were to challenge successfully the characterization of one or more of our leases of properties as leases for federal income tax purposes, the Partnership would not be treated as the owner of the related property or properties for federal income tax purposes |
| As a result, the Partnership would lose tax depreciation and cost recovery deductions with respect to one or more of our properties, which in turn could cause us to fail to qualify as a REIT Although we will use our best efforts to structure any leasing transaction for properties acquired in the future so the lease will be characterized as a lease and the Partnership will be treated as the owner of the property for federal income tax purposes, we will not seek an advance ruling from the IRS and do not intend to seek an opinion of counsel that the Partnership will be treated as the owner of any leased properties for federal income tax purposes |
| Thus, the IRS could successfully assert that future leases will not be treated as leases for federal income tax purposes, which could adversely affect our financial condition and results of operations |
| The Code imposes certain limitations on the ownership of the stock of a REIT For example, not more than 50prca in value of our outstanding shares of capital stock may be owned, actually or constructively, by five or fewer individuals (as defined in the Code) |
| To protect our REIT status, our articles of incorporation restrict beneficial and constructive ownership (defined by reference to various Code provisions) to no more than 5prca in value of our issued and outstanding equity securities by any single stockholder with the exception of members of The Saul Organization, who, prior to actions discussed below, were restricted to beneficial and constructive ownership, of no more than 24dtta9prca in value of our issued and outstanding equity securities |
| The constructive ownership rules are complex |
| Shares of our capital stock owned, actually or constructively, by a group of related individuals and/or entities may be treated as constructively owned by one of those individuals or entities |
| As a result, the acquisition of less than 5prca or 24dtta9prca in value of our issued and outstanding equity securities, by an individual or entity could cause that individual or entity (or another) to own constructively more than 5prca or 24dtta9prca in value of the outstanding stock |
| If that happened, either the transfer or ownership would be void or the shares would be transferred to a charitable trust and then sold to someone who can own those shares without violating the respective ownership limit |
| The Board of Directors may waive these restrictions on a case-by-case basis |
| In September 1999, our Board of Directors agreed to waive the ownership limit with respect to Wells Fargo Bank, National Association and US Bank National Association, the pledges of certain shares of our common stock and units issued by the Partnership and held by members of The Saul Organization |
| In addition, in March 2000, the Board of Directors agreed to increase the ownership limit with respect to members of The Saul Organization, allowing the members to beneficially and constructively own up to 29dtta9prca in value of our issued and outstanding equity securities |
| As of March 9, 2006, Wells Fargo, US Bank and members of The Saul Organization owned 0prca, 0prca and 29dtta0prca of the issued and outstanding equity securities, respectively |
| The Board has approved an amendment to our articles of incorporation to increase the ownership limitation that applied to member of the Saul Organization to 39dtta9prca in value of our issued and outstanding equity securities, while at the same time decreasing the ownership limitation to all other stockholders to 2dtta5prca in value of our issued and outstanding equity securities |
| The amendment will be submitted to the Company’s stockholders for approval at the 2006 annual meeting of stockholder |
| 22 ______________________________________________________________________ [49]Table of Contents The ownership restrictions may delay, defer or prevent a transaction or a change of our control that might involve a premium price for our equity stock or otherwise be in the stockholders’ best interest |
| The lower tax rate on dividends of regular corporations may cause investors to prefer to hold stock of regular corporations instead of-REITs |
| On May 28, 2003, the President signed into law the Jobs and Growth Tax Relief Reconciliation Act of 2003 (which we will refer to as the Act) |
| Under the Act, the maximum tax rate on the long-term capital gains of non-corporate taxpayers is 15prca (applicable to sales occurring from May 7, 2003 through December 31, 2008) |
| The Act also reduced the tax rate on “qualified dividend income” to the maximum capital gains rate |
| Because, as a REIT, we are not generally subject to tax on the portion of our REIT taxable income or capital gains distributed to our stockholders, our distributions are not generally eligible for this new tax rate on dividends |
| As a result, our ordinary REIT dividends generally continue to be taxed at the higher tax rates applicable to ordinary income |
| Without further legislation, the maximum tax rate on long-term capital gains will revert to 20prca in 2009, and dividends will again be subject to tax at ordinary rates |
| We cannot assure you we will continue to pay dividends at historical rates |
| Our ability to continue to pay dividends on our common stock at historical rates or to increase our common stock dividend rate will depend on a number of factors, including, among others, the following: • our financial condition and results of future operations; • the performance of lease terms by tenants; • the terms of our loan covenants; and • our ability to acquire, finance, develop or redevelop and lease additional properties at attractive rates |
| If we do not maintain or increase the dividend rate on our common stock, it could have an adverse effect on the market price of our common stock and other securities |
| Payment of dividends on our common stock may be subject to payment in full of the dividends on any preferred stock or depositary shares and payment of interest on any debt securities we may offer |
| Certain tax and anti-takeover provisions of our articles of incorporation and bylaws may inhibit a change of our control |
| Certain provisions contained in our articles of incorporation and bylaws and the Maryland General Corporation Law may discourage a third party from making a tender offer or acquisition proposal to us |
| If this were to happen, it could delay, deter or prevent a change in control or the removal of existing management |
| These provisions also may delay or prevent the stockholders from receiving a premium for their stock over then-prevailing market prices |
| These provisions include: • the REIT ownership limit described above; • authorization of the issuance of our preferred stock with powers, preferences or rights to be determined by the Board of Directors; • a staggered, fixed-size Board of Directors consisting of three classes of directors; • special meetings of our stockholders may be called only by the Chairman of the Board, the president, by a majority of the directors or by stockholders possessing no less than 25prca of all the votes entitled to be cast at the meeting; • the Board of Directors, without a stockholder vote, can classify or reclassify unissued shares of preferred stock; • a member of the Board of Directors may be removed only for cause upon the affirmative vote of 75prca of the Board of Directors or 75prca of the then-outstanding capital stock; • advance notice requirements for proposals to be presented at stockholder meetings; and 23 ______________________________________________________________________ [50]Table of Contents • the terms of our articles of incorporation regarding business combinations and control share acquisitions |
| We may amend or revise our business policies without your approval |
| Our Board of Directors may amend or revise our operating policies without stockholder approval |
| Our investment, financing and borrowing policies and policies with respect to all other activities, such as growth, debt, capitalization and operations, are determined by the Board of Directors or those committees or officers to whom the Board of Directors has delegated that authority |
| The Board of Directors may amend or revise these policies at any time and from time to time at its discretion |
| A change in these policies could adversely affect our financial condition and results of operations, and the market price of our securities |