| SL GREEN REALTY CORP ITEM 1A RISK FACTORS Declines in the demand for office space in New York City, and in particular, in Midtown Manhattan, resulting from general economic conditions could adversely affect the value of our real estate portfolio and our results of operations and, consequently, our ability to service current debt and to pay dividends to stockholders |
| Most of our office properties are located in Midtown Manhattan |
| As a result, our business is dependent on the condition of the New York City economy in general and the market for office space in Midtown Manhattan, in particular |
| Weakness in the New York City economy could materially reduce the value of our real estate portfolio and our revenues, and thus adversely affect our ability to service current debt and to pay dividends to stockholders |
| We may be unable to renew leases or relet space as leases expire |
| When our tenants decide not to renew their leases upon their expiration, we may not be able to relet the space |
| Even if tenants do renew or we can relet the space, the terms of renewal or reletting, including the cost of required renovations, may be less favorable than current lease terms |
| Over the next five years, through the end of 2010, leases will expire on approximately 49dtta6prca and 39dtta4prca of the rentable square feet at our wholly-owned and joint venture properties, respectively |
| As of December 31, 2005, approximately 4dtta6 million and 3dtta3 million square feet are scheduled to expire by December 31, 2010 at our wholly-owned and joint venture properties, respectively, and these leases currently have annualized escalated rental income totaling dlra179dtta4 million and dlra155dtta2 million, respectively |
| If we are unable to promptly renew the leases or relet this space at similar rates, our cash flow and ability to service debt and pay dividends to stockholders would be adversely affected |
| The expiration of long term leases or operating sublease interests could adversely affect our results of operations |
| Our interest in six of our commercial office properties is through either long-term leasehold or operating sublease interests in the land and the improvements, rather than by a fee interest in the land |
| Unless we can purchase a fee interest in the underlying land or extend the terms of these leases before their expiration, we will lose our right to operate these properties and our interest in the improvements upon expiration of the leases, which would significantly adversely affect our results of operations |
| These properties are 673 First Avenue, 420 Lexington Avenue, 1140 Avenue of the Americas, 461 Fifth Avenue, 711 Third Avenue and 625 Madison Avenue |
| The average remaining term of these long-term leases, including our unilateral extension rights on six of the properties, is 44 years |
| 7 ______________________________________________________________________ Pursuant to the operating sublease arrangements, we, as tenant under the operating sublease, perform the functions traditionally performed by landlords with respect to our subtenants |
| We are responsible for not only collecting rent from our subtenants, but also maintaining the property and paying expenses relating to the property |
| The annualized escalated rents of these properties at December 31, 2005 totaled dlra138dtta4 million, or 39prca, of our total annualized revenue associated with wholly-owned properties |
| Reliance on major tenants and insolvency or bankruptcy of these and other tenants could adversely affect our results of operations |
| Giving effect to leases in effect as of December 31, 2005 for wholly-owned and joint venture properties as of that date, our five largest tenants, based on square footage leased, accounted for approximately 26dtta1prca of our share of portfolio annualized rent, and other than three tenants, Viacom International Inc, Teachers Insurance Annuity Society, and Credit Suisse Securities (USA), LLC, who accounted for 8dtta5prca, 6dtta4prca and 5dtta4prca of our share of portfolio annualized rent, respectively, no tenant accounted for more than 3dtta2prca of that total |
| Our business would be adversely affected if any of these tenants or any other tenants became insolvent, declared bankruptcy or otherwise refused to pay rent in a timely fashion or at all |
| We may suffer adverse consequences if our revenues decline since our operating costs do not necessarily decline in proportion to our revenue |
| We earn a significant portion of our income from renting our properties |
| Our operating costs, however, do not necessarily fluctuate in relation to changes in our rental revenue |
| This means that our costs will not necessarily decline even if our revenues do |
| Our operating costs could also increase while our revenues do not |
| If our operating costs increase but our rental revenues do not, we may be forced to borrow to cover our costs, we may incur losses and we may not have cash available for distributions to our stockholders |
| We face risks associated with property acquisitions |
| Since our initial public offering, we have made large acquisitions of properties and portfolios of properties |
| We intend to continue to acquire properties and portfolios of properties, including large portfolios that could continue to significantly increase our size and alter our capital structure |
| Our acquisition activities and their success may be exposed to the following risks: • we may be unable to acquire a desired property because of competition from other well capitalized real estate investors, including publicly traded REITs, institutional investment funds and private investors or at all; • even if we enter into an acquisition agreement for a property, it is usually subject to customary conditions to closing, including completion of due diligence investigations to our satisfaction; • even if we are able to acquire a desired property, competition from other real estate investors may significantly increase the purchase price; • we may be unable to finance acquisitions on favorable terms or at all; • acquired properties may fail to perform as we expected; • our estimates of the costs of repositioning or redeveloping acquired properties may be inaccurate; • acquired properties may be located in new markets where we may face risks associated with a lack of market knowledge or understanding of the local economy, lack of business relationships in the area and unfamiliarity with local governmental and permitting procedures; and • we may be unable to quickly and efficiently integrate new acquisitions, particularly acquisitions of portfolios of properties, into our existing operations, and as a result our results of operations and financial condition could be adversely affected |
| We may acquire properties subject to liabilities and without any recourse, or with only limited recourse, with respect to unknown liabilities |
| As a result, if a liability were asserted against us based upon those properties, we might have to pay substantial sums to settle it, which could adversely affect our cash flow |
| Unknown liabilities with respect to properties acquired might include: • liabilities for clean-up of undisclosed environmental contamination; • claims by tenants, vendors or other persons dealing with the former owners of the properties; • liabilities incurred in the ordinary course of business; and • claims for indemnification by general partners, directors, officers and others indemnified by the former owners of the properties |
| We rely on three large properties for a significant portion of our revenue |
| As of December 31, 2005, three of our properties, 420 Lexington Avenue, 1221 Avenue of the Americas and 1515 Broadway, accounted for over 30prca of our portfolio annualized rent, including our share of joint venture annualized rent, and 1221 Avenue of the Americas alone accounted for approximately 11prca of our portfolio annualized rent, including our share of joint venture annualized rent |
| Our revenue and cash available for distribution to our portfolio stockholders would be materially adversely affected if the groundlease for the 420 Lexington Avenue property were terminated for any reason or if one or all of these properties were materially damaged or destroyed |
| Additionally, our revenue and cash available for distribution to our stockholders would be materially adversely affected if our tenants at these properties experienced a downturn in their business which may weaken their financial condition and 8 ______________________________________________________________________ result in their failure to timely make rental payments, defaulting under their leases or filing for bankruptcy |
| The continuing threat of terrorist attacks may adversely affect the value of our properties and our ability to generate cash flow |
| There may be a decrease in demand for space in New York City because it is considered at risk for future terrorist attacks, and this decrease may reduce our revenues from property rentals |
| In the aftermath of a terrorist attack, tenants in the New York City area may choose to relocate their business to less populated, lower-profile areas of the United States that are not as likely to be targets of future terrorist activity |
| This in turn would trigger a decrease in the demand for space in the New York City area, which could increase vacancies in our properties and force us to lease our properties on less favorable terms |
| As a result, the value of our properties and the level of our revenues could materially decline |
| A terrorist attack could cause insurance premiums to increase significantly |
| The real estate industry witnessed a sharp rise in property insurance costs after the terrorist attacks on September 11, 2001 |
| While there was some stabilizing of these costs, primarily as a result of the Terrorism Risk Insurance Act, or TRIA, enacted in November 2002, that required insurance companies to provide certain forms of terrorism coverage while providing a financial backstop in the event of a non-domestic terrorist attack, it was unclear whether Congress would extend or modify TRIA, which was set to expire on January 1, 2006 |
| Accordingly, there could be disruption/repricing to the reduced cost |
| On January 1, 2006, Congress extended TRIA, now called TRIEA (Terrorism Risk Insurance Extension Act) until 2007 |
| Our debt instruments, consisting of mortgage loans secured by our properties (which are generally non-recourse to us), mezzanine loans, ground leases and our unsecured revolving credit facility and unsecured term loans, contain customary covenants requiring us to maintain insurance |
| There can be no assurance that the lenders or ground lessors under these instruments will not take the position that a total or partial exclusion from “all risk” insurance coverage for losses due to terrorist acts is a breach of these debt and ground lease instruments that allows the lenders or ground lessors to declare an event of default and accelerate repayment of debt or recapture of ground lease positions |
| In addition, if lenders insist on full coverage for these risks, it could result in substantially higher insurance premiums |
| We carry comprehensive “all-risk” (including fire, flood, extended coverage and rental loss insurance) and liability insurance with respect to our property portfolio |
| The property coverage has a blanket limit of dlra600 million per occurrence for all the properties in our portfolio with a sublimit of dlra450 million for terrorism |
| The primary property policy expires in July 2007 and all other policies expire in October 2006 |
| We have a minority interest in the property at 1221 Avenue of the Americas, where we participate with the Rockefeller Group Inc, which carries a blanket policy providing dlra1dtta0 billion of “all-risk” property insurance, including terrorism and in the “Bellemead” portfolio in NJ, where we participate with Gale Properties, which carries a blanket policy providing dlra200 million of “all-risk” property insurance including terrorism |
| Although we consider our insurance coverage appropriate, in the event of a major catastrophe, such as resulting from an act of terrorism, we may not have sufficient coverage to replace a significant property |
| In addition, our policies do not cover properties that we may acquire in the future and insurance will need to be obtained if added to our portfolio prior to October 2006 |
| Our dependence on smaller and growth-oriented businesses to rent our office space could adversely affect our cash flow and results of operations |
| Many of the tenants in our properties are smaller, growth-oriented businesses that may not have the financial strength of larger corporate tenants |
| Smaller companies generally experience a higher rate of failure than large businesses |
| Growth-oriented firms may also seek other office space, including Class A space, as they develop |
| Dependence on these companies could create a higher risk of tenant defaults, turnover and bankruptcies, which could adversely affect our distributable cash flow and results of operations |
| Debt financing, financial covenants, degree of leverage, and increases in interest rates could adversely affect our economic performance |
| Scheduled debt payments could adversely affect our results of operations |
| The total principal amount of our outstanding consolidated indebtedness was dlra1dtta5 billion as of December 31, 2005, dlra32dtta0 million under our 2005 unsecured revolving credit facility, dlra325dtta0 million under our unsecured term loan, dlra200dtta0 million under our secured term loan, dlra100dtta0 million under our junior subordinated deferrable interest debentures and dlra885dtta3 million of non-recourse mortgage loans on twelve of our properties |
| Cash flow could be insufficient to pay distributions at expected levels and meet the payments of principal and interest required under our current mortgage indebtedness, credit facilities and term loans |
| Our 2005 unsecured revolving credit facility matures in September 2008 |
| Our unsecured term loan matures in August 2009 |
| Our secured term loan matures in May 2010 |
| As of December 31, 2005, the total principal amount of non-recourse indebtedness outstanding at the joint venture properties was dlra2dtta3 billion, of which our proportionate share was dlra1dtta0 billion |
| 9 ______________________________________________________________________ If we are unable to make payments under our unsecured credit facility and unsecured term loan, all amounts due and owing at such time shall accrue interest at a rate equal to 4prca higher than the rate at which each such loan was made |
| Foreclosure on mortgaged properties or an inability to make scheduled payments under our secured and unsecured term loans and unsecured credit facility would have a negative impact on our financial condition and results of operations |
| We may not be able to refinance existing indebtedness, which in all cases requires substantial principal payments at maturity |
| In 2006, no debt on our wholly-owned buildings, and one loan on our joint venture properties will mature |
| If any principal payments due at maturity cannot be refinanced, extended or paid with proceeds of other capital transactions, such as new equity capital, our cash flow will not be sufficient in all years to repay all maturing debt |
| At the time of refinancing, prevailing interest rates or other factors, such as the possible reluctance of lenders to make commercial real estate loans, may result in higher interest rates |
| Increased interest expense on the refinanced debt would adversely affect cash flow and our ability to service debt and make distributions to stockholders |
| Financial covenants could adversely affect our ability to conduct our business |
| The mortgages on our properties contain customary negative covenants that limit our ability to further mortgage the property, to enter into new leases or materially modify existing leases, and to discontinue insurance coverage |
| In addition, our 2005 unsecured revolving credit facility contain customary restrictions and requirements on our method of operations |
| Our 2005 unsecured revolving credit facility and unsecured term loan also require us to maintain designated ratios of total debt-to-assets, debt service coverage and unencumbered assets-to-unsecured debt |
| Restrictions on our ability to conduct business could adversely affect our results of operations and our ability to make distributions to stockholders |
| Rising interest rates could adversely affect our cash flow |
| Advances under our 2005 unsecured revolving credit facility and unsecured term loan and certain property-level mortgage debt bear interest at a variable rate |
| These variable rate borrowings totaled dlra287dtta1 million at December 31, 2005 |
| Borrowings under our 2005 unsecured revolving credit facility bear interest at a spread equal to the 30-day LIBOR, plus 95 basis points |
| Borrowings under our unsecured term loan and secured term loan bear interest at spreads equal to the 30-day LIBOR plus 125 basis points, respectively |
| As of December 31, 2005 borrowings under the 2005 unsecured revolving credit facility and secured and unsecured term loans and junior subordinated deferrable interest debentures totaled dlra32dtta0 million, dlra200dtta0 million, dlra325dtta0 million and dlra100dtta0 million, respectively, and bore interest at 4dtta90prca, 4dtta37prca, 4dtta64prca, and 5dtta61prca, respectively |
| We may incur indebtedness in the future that also bears interest at a variable rate or may be required to refinance our debt at higher rates |
| Accordingly, increases in interest rates above that which we anticipated based upon historical trends could adversely affect our ability to continue to make distributions to stockholders |
| At December 31, 2005, a hypothetical 100 basis point increase in interest rates along the entire interest rate curve would increase our annual interest costs by approximately dlra2dtta7 million and would increase our share of joint venture annual interest costs by approximately dlra6dtta0 million |
| Failure to hedge effectively against interest rate changes may adversely affect results of operations |
| The interest rate hedge instruments we use to manage some of our exposure to interest rate volatility involve risk, such as the risk that counterparties may fail to honor their obligations under these arrangements |
| In addition, these arrangements may not be effective in reducing our exposure to interest rate changes |
| Failure to hedge effectively against interest rate changes may adversely affect our results of operations |
| Our policy of no limitation on debt could adversely affect our cash flow |
| Our organizational documents do not contain any limitation on the amount of indebtedness we may incur |
| As of December 31, 2005, assuming the conversion of all outstanding units of the operating partnership into shares of our common stock, our combined debt-to-market capitalization ratio, including our share of joint venture debt of dlra1dtta0 billion, was approximately 41dtta2prca |
| However, our policy is to incur debt only if upon a conversion our consolidated debt to market capitalization ratio would be 60dtta0prca or less |
| Our board of directors can alter or eliminate this policy and would do so if our board of directors determines that this action is in the best interests of our business |
| If this policy is changed and we become more highly leveraged, an increase in debt service could adversely affect cash available for distribution to stockholders and could increase the risk of default on our indebtedness |
| In addition, any change that increases our debt to market capitalization percentage could be viewed negatively by investors |
| We have established our debt policy relative to the total market capitalization of our business rather than relative to the book value of our assets |
| We use total market capitalization because we believe that the book value of our assets, which to a large extent is the depreciated original cost of our properties, and our primary tangible assets, does not accurately reflect our ability to borrow and to meet debt service requirements |
| Our market capitalization, however, is more variable than book value, and does not necessarily reflect the fair market value of our assets at all times |
| We also will consider factors other than market capitalization in making decisions regarding the incurrence of indebtedness, such as the purchase price of properties to be acquired with debt financing, the estimated market value of our properties upon refinancing and the ability of particular properties and our business as a whole to generate cash flow to cover expected debt service |
| 10 ______________________________________________________________________ Structured finance investments could cause expenses, which could adversely affect our results of operations |
| We owned mezzanine loans, junior participations and preferred equity interests in eighteen properties with an aggregate book value of dlra400dtta1 million at December 31, 2005 |
| To the extent we invest in mezzanine loans, junior participations and preferred equity, such investments may or may not be recourse obligations of the borrower and are not insured or guaranteed by governmental agencies or otherwise |
| In the event of a default under these obligations, we may have to realize upon our collateral and thereafter make substantial improvements or repairs to the underlying real estate in order to maximize the property’s investment potential |
| Borrowers may contest enforcement of foreclosure or other remedies, seek bankruptcy protection against such enforcement and/or bring claims for lender liability in response to actions to enforce their obligation to us |
| Relatively high loan-to-value ratios and declines in the value of the property may prevent us from realizing an amount equal to our investment upon foreclosure |
| Joint investments could be adversely affected by our lack of sole decision-making authority and reliance upon a co-venturer’s financial condition |
| We co-invest with third parties through partnerships, joint ventures, co-tenancies or other entities, acquiring non-controlling interests in, or sharing responsibility for managing the affairs of, a property, partnership, joint venture, co-tenancy or other entity |
| Therefore, we will not be in a position to exercise sole decision-making authority regarding that property, partnership, joint venture or other entity |
| Investments in partnerships, joint ventures, or other entities may involve risks not present were a third party not involved, including the possibility that our partners, co-tenants or co-venturers might become bankrupt or otherwise fail to fund their share of required capital contributions |
| Additionally, our partners or co-venturers might at any time have economic or other business interests or goals, which are inconsistent with our business interests or goals |
| These investments may also have the potential risk of impasses on decisions such as a sale, because neither we nor the partner, co-tenant or co-venturer would have full control over the partnership or joint venture |
| Consequently, actions by such partner, co-tenant or co-venturer might result in subjecting properties owned by the partnership or joint venture to additional risk |
| In addition, we may in specific circumstances be liable for the actions of our third-party partners, co-tenants or co-venturers |
| As of December 31, 2005, we were participating in eight unconsolidated joint ventures encompassing eight properties and had an aggregate cost basis in the joint ventures totaling dlra543dtta2 million |
| As of December 31, 2005, our share of joint venture debt totaled dlra1dtta0 billion |
| Our joint venture agreements contain terms in favor of our partners that may have an adverse effect on the value of our investments in the joint ventures |
| Each of our joint venture agreements has been individually negotiated with our partner in the joint venture and, in some cases, we have agreed to terms that are favorable to our partner in the joint venture |
| For example, our partner may be entitled to a specified portion of the profits of the joint venture before we are entitled to any portion of such profits and our partner may have rights to buy our interest in the joint venture, to force us to buy the partner’s interest in the joint venture or to compel the sale of the property owned by such joint venture |
| These rights may permit our partner in a particular joint venture to obtain a greater benefit from the value or profits of the joint venture than us, which may have an adverse effect on the value of our investment in the joint venture and on our financial condition and results of operations |
| We may also enter into similar arrangements in the future |
| We are subject to possible environmental liabilities and other possible liabilities |
| We are subject to various federal, state and local environmental laws |
| These laws regulate our use, storage, disposal and management of hazardous substances and, wastes and can impose liability on property owners or operators for the clean-up of certain hazardous substances released on a property and any associated damage to natural resources without regard to whether the release was legal or whether it was caused by the property owner or operator |
| The presence of hazardous substances on our properties may adversely affect occupancy and our ability to develop or sell or borrow against those properties |
| In addition to potential liability for clean-up costs, private plaintiffs may bring claims for personal injury, property damage or for similar reasons |
| Various laws also impose liability for the clean-up of contamination at any facility (eg, a landfill) to which we have sent hazardous substances for treatment or disposal, without regard to whether the materials were transported, treated and disposed in accordance with law |
| Our properties may be subject to other risks relating to current or future laws including laws benefiting disabled persons, and other state or local zoning, construction or other regulations |
| These laws may require significant property modifications in the future for which we may not have budgeted and could result in fines being levied against us |
| The occurrence of any of these events could have an adverse impact on our cash flows and ability to make distributions to stockholders |
| We may incur significant costs complying with the Americans with Disabilities Act and similar laws |
| Under the Americans with Disabilities Act, or ADA, all public accommodations must meet federal requirements related to access and use by disabled persons |
| Additional federal, state and local laws also may require modifications to our properties, or restrict our ability to renovate our properties |
| We have not conducted an audit or investigation of all of our properties to determine our compliance |
| If one or more of our properties is not in compliance with the ADA or other legislation, then we would be required to 11 ______________________________________________________________________ incur additional costs to bring the property into compliance |
| We cannot predict the ultimate amount of the cost of compliance with ADA or other legislation |
| If we incur substantial costs to comply with the ADA and any other legislation, our financial condition, results of operations and cash flow and/or ability to satisfy our debt service obligations and to pay dividends to our stockholders could be adversely affected |
| Our charter documents and applicable law may hinder any attempt to acquire us, which could discourage takeover attempts and prevent our stockholders from receiving a premium over the market price of our stock |
| Provisions of our articles of incorporation and bylaws could inhibit changes in control |
| A change of control of our company could benefit stockholders by providing them with a premium over the then-prevailing market price of the stock |
| However provisions contained in our articles of incorporation and bylaws may delay or prevent a change in control of our company |
| These provisions, discussed more fully below, are: • staggered board of directors; • ownership limitations for tax purposes; • the board of director’s ability to issue additional common stock and preferred stock without stockholder approval; and • stockholder rights plan |
| Our board of directors is staggered into three separate classes |
| The board of directors of our company is divided into three classes |
| The terms of the class I, class II and class III directors expire in 2006, 2007 and 2008, respectively |
| Our staggered board may deter changes in control because of the increased time period necessary for a third party to acquire control of the board |
| We have a share ownership limit for REIT tax purposes |
| To remain qualified as a REIT for federal income tax purposes, not more than 50prca in value of our outstanding capital stock may be owned by five or fewer individuals at any time during the last half of any taxable year |
| For this purpose, stock may be “owned” directly, as well as indirectly under certain constructive ownership rules, including, for example, rules that attribute stock held by one family member to another family member |
| To avoid violating this rule regarding share ownership limitations and maintain our REIT qualification, our articles of incorporation prohibit ownership by any single stockholder of more than 9dtta0prca in value or number of shares of our common stock |
| Limitations on the ownership of preferred stock may also be imposed by us |
| The board of directors has the discretion to raise or waive this limitation on ownership for any stockholder if deemed to be in our best interest |
| To obtain a waiver, a stockholder must present the board and our tax counsel with evidence that ownership in excess of this limit will not affect our present or future REIT status |
| Absent any exemption or waiver, stock acquired or held in excess of the limit on ownership will be transferred to a trust for the exclusive benefit of a designated charitable beneficiary, and the stockholder’s rights to distributions and to vote would terminate |
| The stockholder would be entitled to receive, from the proceeds of any subsequent sale of the shares transferred to the charitable trust, the lesser of: the price paid for the stock or, if the owner did not pay for the stock, the market price of the stock on the date of the event causing the stock to be transferred to the charitable trust; and the amount realized from the sale |
| This limitation on ownership of stock could delay or prevent a change in control |
| We have a stockholder rights plan |
| We adopted a stockholder rights plan which provides, among other things, that when specified events occur, our stockholders will be entitled to purchase from us a newly created series of junior preferred shares, subject to our ownership limit described above |
| The preferred share purchase rights are triggered by the earlier to occur of (1) ten days after the date of a public announcement that a person or group acting in concert has acquired, or obtained the right to acquire, beneficial ownership of 17prca or more of our outstanding shares of common stock or (2) ten business days after the commencement of or announcement of an intention to make a tender offer or exchange offer, the consummation of which would result in the acquiring person becoming the beneficial owner of 17prca or more of our outstanding common stock |
| The preferred share purchase rights would cause substantial dilution to a person or group that attempts to acquire us on terms not approved by our board of directors |
| Maryland takeover statutes may prevent a change of control of our company, which could depress our stock price |
| Under Maryland law, “business combinations” between a Maryland corporation and an interested stockholder or an affiliate of an interested stockholder are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder |
| These business combinations include a merger, consolidation, share exchange, or, in circumstances specified in the statute, an asset transfer or issuance or reclassification of equity securities |
| An interested stockholder is defined as: • any person who beneficially owns 10prca or more of the voting power of the corporation’s shares; or • an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner of 10prca or more of the voting power of the then outstanding voting stock of the corporation |
| 12 ______________________________________________________________________ A person is not an interested stockholder under the statute if the board of directors approves in advance the transaction by which he otherwise would have become an interested stockholder |
| After the five-year prohibition, any business combination between the Maryland corporation and an interested stockholder generally must be recommended by the board of directors of the corporation and approved by the affirmative vote of at least: • 80prca of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and • two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or held by an affiliate or associate of the interested stockholder |
| The business combination statute may discourage others from trying to acquire control of us and increase the difficulty of consummating any offer, including potential acquisitions that might involve a premium price for our common stock or otherwise be in the best interest of our stockholders |
| We have opted out of these provisions of the Maryland General Corporation Law, or the MGCL, with respect to its business combination provisions and its control share provisions by resolution of our board of directors and a provision in our bylaws, respectively |
| However, in the future, our board of directors may reverse its decision by resolution and elect to opt in to the MGCL’s business combination provisions, or amend our bylaws and elect to opt in to the MGCL’s control share provisions |
| Additionally, Title 8, Subtitle 3 of the MGCL permits our board of directors, without stockholder approval and regardless of what is provided in our charter or bylaws, to implement takeover defenses, some of which we do not have |
| These provisions may have the effect of inhibiting a third party from making us an acquisition proposal or of delaying, deferring or preventing a change in our control under circumstances that otherwise could provide you with an opportunity to realize a premium over the then-current market price |
| Future issuances of common stock and preferred stock could dilute existing stockholders’ interests |
| Our articles of incorporation authorize our board of directors to issue additional shares of common stock and preferred stock without stockholder approval |
| Any such issuance could dilute our existing stockholders’ interests |
| Changes in market conditions could adversely affect the market price of our common stock |
| As with other publicly traded equity securities, the value of our common stock depends on various market conditions, which may change from time to time |
| Among the market conditions that may affect the value of our common stock are the following: • the extent of your interest in us; • the general reputation of REITs and the attractiveness of our equity securities in comparison to other equity securities, including securities issued by other real estate-based companies; • our financial performance; and • general stock and bond market conditions |
| The market value of our common stock is based primarily upon the market’s perception of our growth potential and our current and potential future earnings and cash dividends |
| Consequently, our common stock may trade at prices that are higher or lower than our net asset value per share of common stock |
| If our future earnings or cash dividends are less than expected, it is likely that the market price of our common stock will diminish |
| Market interest rates may have an effect on the value of our common stock |
| If market interest rates go up, prospective purchasers of shares of our common stock may expect a higher distribution rate on our common stock |
| Higher market interest rates would not, however, result in more funds for us to distribute and, to the contrary, would likely increase our borrowing costs and potentially decrease funds available for distribution |
| Thus, higher market interest rates could cause the market price of our common stock to go down |
| There are potential conflicts of interest between us and Mr |
| There is a potential conflict of interest relating to the disposition of the property contributed to us by Stephen L Green, and his family |
| Green serves as the chairman of our board of directors and is an executive officer |
| Green contributed appreciated property, with a net book value of dlra73dtta5 million, to the operating partnership in exchange for units of limited partnership interest in the operating partnership |
| He did not recognize any taxable gain as a result of the contribution |
| The operating partnership, however, took a tax basis in the contributed property equal to that of the contributing unitholder |
| The fair market value of the property contributed by him exceeded his tax basis by approximately dlra34dtta0 million at the time of contribution |
| The difference between fair market value and tax basis at the time of contribution represents a built-in gain |
| If we sell a property in a transaction in 13 ______________________________________________________________________ which a taxable gain is recognized, for tax purposes the built-in gain would be allocated solely to him and not to us |
| Green has a conflict of interest if the sale of a property, which he contributed, is in our best interest but not his |
| There is a potential conflict of interest relating to the refinancing of indebtedness specifically allocated to Mr |
| Green would recognize gain if he were to receive a distribution of cash from the operating partnership in an amount that exceeds his tax basis in his partnership units |
| His tax basis includes his share of debt, including mortgage indebtedness, owed by our Operating Partnership |
| If the Operating Partnership were to retire such debt, then he would experience a decrease in his share of liabilities, which, for tax purposes, would be treated as a distribution of cash to him |
| To the extent the deemed distribution of cash exceeded his tax basis, he would recognize gain |
| Limitations on our ability to sell or reduce the indebtedness on specific mortgaged properties could adversely affect the value of the stock |
| We have agreed to restrictions relating to future transactions involving 673 First Avenue and 470 Park Avenue South |
| During the period of time that these restrictions apply, our ability to manage or use these properties in a manner that is in our overall best interests may be impaired |
| In particular, these restrictions could preclude us from participating in major transactions otherwise favorable to us if a disposition of these restricted assets is required |
| These restrictions may also inhibit a change in control of our company even though a disposition or change in control might be in the best interests of the stockholders |
| Specifically, we have agreed not to sell our interest in these properties until August 20, 2009 without the approval of unitholders holding at least 75prca of the units issued in consideration for these properties |
| The current gross carrying value of the commercial real estate of these properties totaled dlra85dtta5 million at December 31, 2005 |
| We have also agreed not to reduce the mortgage indebtedness (dlra34dtta5 million at December 31, 2005), other than pursuant to scheduled amortization, on 673 First Avenue until one year prior to its maturity date without the same consent |
| In addition, we are obligated to use commercially reasonable efforts to refinance this mortgage prior to its maturity date in an amount not less than the principal amount outstanding on the maturity date |
| With respect to 673 First Avenue, Mr |
| Green controls at least 75prca of the units whose approval is necessary |
| With respect to 470 Park Avenue South, Mr |
| Green controls at least 65prca of the units whose approval is necessary |
| Finally, during this period, we may not incur debt secured by any of these properties if the amount of our new debt would exceed the greater of 75prca of the value of the property securing the debt or the amount of existing debt being refinanced plus associated costs |
| The maturity date for the mortgage loan for 673 First Avenue is February 11, 2013 |
| In addition, on May 15, 2002, we acquired the property located at 1515 Broadway, New York, New York |
| Under a tax protection agreement established to protect the limited partners of the partnership that transferred 1515 Broadway to us, we have agreed not to take certain action that would adversely affect the limited partners’ tax positions before December 31, 2011 |
| We also acquired the property located at 220 East 42nd Street, New York, New York, on February 13, 2003 and condominium interests in the property located at 125 Broad Street, New York, New York on March 28, 2003 |
| We have agreed not to take certain action that would adversely affect the tax positions of certain of the partners who held interests in these properties prior to the acquisitions for a period of seven years, in the case of 220 East 42nd Street, and a period of three years, in the case of 125 Broad Street, after the respective acquisitions |
| We also acquired the property located at 625 Madison Avenue, New York, New York, on October 19, 2004 and have agreed not to take certain action that would adversely affect the tax positions of certain of the partners who held interests in this property prior to the acquisition for a period of seven years after the acquisition |
| In connection with future acquisitions of interests in properties, we may agree to similar restrictions on our ability to sell or refinance the acquired properties with similar potential adverse consequences |
| We face potential conflicts of interest |
| Members of management may have a conflict of interest over whether to enforce terms of agreements with entities in which senior management, directly or indirectly, has an interest |
| Green’s sons, First Quality Maintenance, LP and Classic Security LLC, currently provide cleaning, exterminating and security services to all of our office properties, with the exception of cleaning services at one property |
| Our company and our tenants accounted for approximately 12dtta9prca of First Quality Maintenance, LP’s 2005 total revenue and 42dtta4prca of Classic Security LLC’s 2005 total revenue |
| Green’s sons, has provided messenger services at of our properties since May 1, 2002 |
| We accounted for approximately 29dtta9prca of Bright Star Courier, LLC’s 2005 total revenue |
| In addition, Onyx Restoration Works, a restoration company owned by one of Mr |
| Green’s sons, has provided restoration services at all of our properties since March 2005 |
| While the contracts pursuant to which these services are provided are reviewed by our board of directors, they are not the result of arm’s length negotiations and, therefore, there can be no assurance that the terms and conditions are not less favorable than those which could be obtained from third parties providing comparable services |
| 14 ______________________________________________________________________ Members of management may have a conflict of interest over whether to enforce terms of senior management’s employment and noncompetition agreements |
| Stephen Green, Marc Holliday, Gregory Hughes, Andrew Levine, Gerard Nocera and Andrew Mathias entered into employment and noncompetition agreements with us pursuant to which they have agreed not to engage in the acquisition, development or operation of office real estate in the New York City metropolitan area |
| For the most part these restrictions apply to the executive both during his employment and for a period of time thereafter |
| Each executive is also prohibited from otherwise disrupting or interfering with our business through the solicitation of our employees or clients or otherwise |
| To the extent that we choose to enforce our rights under any of these agreements, we may determine to pursue available remedies, such as actions for damages or injunctive relief, less vigorously than we otherwise might because of our desire to maintain our ongoing relationship with the individual involved |
| Additionally, the non-competition provisions of these agreements despite being limited in scope and duration, could be difficult to enforce, or may be subject to limited enforcement, should litigation arise over them in the future |
| Green has interests in two properties in Manhattan, which are exempt from the non-competition provisions of his employment and non-competition agreement |
| Our failure to qualify as a REIT would be costly |
| We believe we have operated in a manner to qualify as a REIT for federal income tax purposes and intend to continue to so operate |
| Many of these requirements, however, are highly technical and complex |
| The determination that we are a REIT requires an analysis of factual matters and circumstances |
| These matters, some of which may not be totally within our control, can affect our qualification as a REIT For example, to qualify as a REIT, at least 95prca of our gross income must come from designated sources that are listed in the REIT tax laws |
| We are also required to distribute to stockholders at least 90prca of our REIT taxable income excluding capital gains |
| The fact that we hold our assets through the operating partnership and its subsidiaries further complicates the application of the REIT requirements |
| Even a technical or inadvertent mistake could jeopardize our REIT status |
| Furthermore, Congress and the Internal Revenue Service, which we refer to as the IRS, might make changes to the tax laws and regulations, and the courts might issue new rulings that make it more difficult, or impossible, for us to remain qualified as a REIT If we fail to qualify as a REIT, we would be subject to federal income tax at regular corporate rates |
| Also, unless the IRS grants us relief under specific statutory provisions, we would remain disqualified as a REIT for four years following the year we first failed to qualify |
| If we failed to qualify as a REIT, we would have to pay significant income taxes and would therefore have less money available for investments or for distributions to stockholders |
| This would likely have a significant adverse effect on the value of our securities |
| In addition, the REIT tax laws would no longer require us to make any distributions to stockholders |
| Previously enacted tax legislation reduces tax rates for dividends paid by non-REIT corporations |
| Under certain previously enacted tax legislation, the maximum tax rate on dividends to individuals has generally been reduced from 38dtta6prca to 15prca (from January 1, 2003 through December 31, 2008) |
| The reduction in rates on dividends is generally not applicable to dividends paid by a REIT except in limited circumstances that we do not contemplate |
| Although this legislation will not adversely affect the taxation of REITs or dividends paid by REITs, the favorable treatment of regular corporate dividends could cause investors who are individuals to consider stock of non-REIT corporations that pay dividends as relatively more attractive than stocks of REITs |
| It is not possible to predict whether such a change in perceived relative value will occur or what the effect, if any, this legislation will have on the market price of our stock |
| We are dependent on external sources of capital |
| Because of distribution requirements imposed on us to qualify as a REIT, it is not likely that we will be able to fund all future capital needs, including acquisitions, from income from operations |
| We therefore will have to rely on third-party sources of capital, which may or may not be available on favorable terms or at all |
| Our access to third-party sources of capital depends on a number of things, including the market’s perception of our growth potential and our current and potential future earnings |
| In addition, we anticipate having to raise money in the public equity and debt markets with some regularity, and our ability to do so will depend upon the general conditions prevailing in these markets |
| At any time conditions may exist which effectively prevent us, and REITs in general, from accessing these markets |
| Moreover, additional equity offerings may result in substantial dilution of our stockholders’ interests, and additional debt financing may substantially increase our leverage |
| We face significant competition for tenants |
| The leasing of real estate is highly competitive |
| The principal means of competition are rent charged, location, services provided and the nature and condition of the facility to be leased |
| We directly compete with all lessors and developers of similar space in the areas in which our properties are located |
| Demand for retail space has been impacted by the recent bankruptcy of a number of retail companies and a general trend toward consolidation in the retail industry, which could adversely affect the ability of our company to attract and retain tenants |
| Our office building properties are concentrated in highly developed areas of midtown Manhattan |
| Manhattan is the largest office 15 ______________________________________________________________________ market in the United States |
| The number of competitive office properties in Manhattan could have a material adverse effect on our ability to lease office space at our properties, and on the effective rents we are able to charge |
| These competing properties may be newer or better located |
| In addition, we may compete with other property owners (including other REITs that currently invest in markets other than Manhattan) that are willing to pay higher prices to acquire properties in transactions that are more highly leveraged than we are willing to undertake and therefore, our ability to make future acquisitions may be limited |
| Loss of our key personnel could harm our operations |
| We are dependent on the efforts of Stephen L Green, the chairman of our board of directors and an executive officer, and Marc Holliday, our chief executive officer and president |
| A loss of the services of either of these individuals could adversely affect our operations |
| Our business and operations would suffer in the event of system failures |
| Despite system redundancy, the implementation of security measures and the existence of a Disaster Recovery Plan for our internal information technology systems, our systems are vulnerable to damages from computer viruses, unauthorized access, energy blackouts, natural disasters, terrorism, war and telecommunication failures |
| Any system failure or accident that causes interruptions in our operations could result in a material disruption to our business |
| We may also incur additional costs to remedy damages caused by such disruptions |
| Compliance with changing regulation of corporate governance and public disclosure may result in additional expenses, affect our operations and affect our reputation |
| Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002 and new SEC regulations and New York Stock Exchange rules, are creating uncertainty for public companies |
| These new or changed laws, regulations and standards are subject to varying interpretations in many cases due to their lack of specificity, and as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies, which could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices |
| We are committed to maintaining high standards of corporate governance and public disclosure |
| As a result, our efforts to comply with evolving laws, regulations and standards have resulted in, and are likely to continue to result in, increased general and administrative expenses and a diversion of management time and attention from revenue-generating activities to compliance activities |
| In particular, our efforts to comply with Section 404 of the Sarbanes-Oxley Act of 2002 and the related regulations regarding our required assessment of our internal controls over financial reporting and our external auditors’ audit of that assessment has required the commitment of significant financial and managerial resources |
| In addition, it has become more difficult and more expensive for us to obtain director and officer liability insurance |
| We expect these efforts to require the continued commitment of significant resources |
| Further, our directors, chief executive officer and chief financial officer could face an increased risk of personal liability in connection with the performance of their duties |
| As a result, we may have difficulty attracting and retaining qualified directors and executive officers, which could harm our business |
| If our efforts to comply with new or changed laws, regulations and standards differ from the activities intended by regulatory or governing bodies due to ambiguities related to practice, our reputation may be harmed |
| Forward-Looking Statements May Prove Inaccurate See Item 7 “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Forward-looking Information” for additional disclosure regarding forward-looking statements |