UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 | |||||
For the fiscal year ended December 31 , 2020
OR
Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 | |||||
For the transition period from to
(Exact name of registrant as specified in its charter)
(Brandywine Realty Trust) | ||||||||||||||||||||||||||
(Brandywine Operating Partnership, L.P.) | ||||||||||||||||||||||||||
(State or Other Jurisdiction of Incorporation or Organization) | (Commission file number) | (I.R.S. Employer Identification Number) | ||||||||||||||||||||||||
(Address of principal executive offices) (Zip Code)
(610 ) 325-5600
(Registrant’s telephone number, including area code)
(Registrant’s telephone number, including area code)
Securities registered pursuant to section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||||||||
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
| Brandywine Realty Trust | ☒ No ☐ | ||||||||||
| Brandywine Operating Partnership, L.P. | ☒ No ☐ | ||||||||||
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
| Brandywine Realty Trust | Yes ☐ | ☒ | |||||||||
| Brandywine Operating Partnership, L.P. | Yes ☐ | ☒ | |||||||||
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
| Brandywine Realty Trust | ☒ No ☐ | ||||||||||
| Brandywine Operating Partnership, L.P. | ☒ No ☐ | ||||||||||
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
| Brandywine Realty Trust | ☒ No ☐ | ||||||||||
| Brandywine Operating Partnership, L.P. | ☒ No ☐ | ||||||||||
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
Brandywine Realty Trust:
| ☒ | Accelerated filer ☐ | Non-accelerated filer ☐ | |||||||||
| Smaller reporting company | Emerging growth company | ||||||||||
If an emerging growth company, indicate by check mark whether the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of Exchange Act.
| ☐ | ||
Brandywine Operating Partnership, L.P.:
| Large accelerated filer | ☐ | Accelerated filer ☐ | ☒ | |||||||||||
| Smaller reporting company | Emerging growth company | |||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| ☐ | ||
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
| Brandywine Realty Trust | Yes | No ☐ | |||||||||
| Brandywine Operating Partnership, L.P. | Yes | No ☐ | |||||||||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
| Brandywine Realty Trust | Yes | No ☒ | |||||||||
| Brandywine Operating Partnership, L.P. | Yes | No ☒ | |||||||||
As of June 30, 2020, the aggregate market value of the Common Shares of Beneficial Interest held by non-affiliates of Brandywine Realty Trust was $1,811,989,986 based upon the last reported sale price of $10.89 per share on the New York Stock Exchange on June 30, 2020. An aggregate of 170,637,419 Common Shares of Beneficial Interest was outstanding as of February 18, 2021.
As of June 30, 2020 the aggregate market value of the 981,634 common units of limited partnership (“Units”) held by non-affiliates of Brandywine Operating Partnership, L.P. was $10,689,994 based upon the last reported sale price of $10.89 per share on the New York Stock Exchange on June 30, 2020 of the Common Shares of Beneficial Interest of Brandywine Realty Trust, the sole general partner of Brandywine Operating Partnership, L.P. (For this computation, the Registrant has excluded the market value of all Units beneficially owned by Brandywine Realty Trust.)
Documents Incorporated By Reference
EXPLANATORY NOTE
This report combines the annual reports on Form 10-K for the year ended December 31, 2020 of Brandywine Realty Trust (the “Parent Company”) and Brandywine Operating Partnership, L.P. (the “Operating Partnership”). The Parent Company is a Maryland real estate investment trust, or REIT, that owns its assets and conducts its operations through the Operating Partnership, a Delaware limited partnership, and subsidiaries of the Operating Partnership. The Parent Company, the Operating Partnership and their consolidated subsidiaries are collectively referred to in this report as the “Company.” In addition, terms such as “we”, “us”, or “our” used in this report may refer to the Company, the Parent Company, or the Operating Partnership.
The Parent Company is the sole general partner of the Operating Partnership and as of December 31, 2020, owned a 99.4% interest in the Operating Partnership. The remaining 0.6% interest consists of common units of limited partnership interest issued by the Operating Partnership to third parties in exchange for contributions of properties to the Operating Partnership. As the sole general partner of the Operating Partnership, the Parent Company has full and complete authority over the Operating Partnership’s day-to-day operations and management.
As general partner with control of the Operating Partnership, the Parent Company consolidates the Operating Partnership for financial reporting purposes, and the Parent Company does not have significant assets other than its investment in the Operating Partnership. Therefore, the assets and liabilities of the Parent Company and the Operating Partnership are the same in their respective financial statements. The separate discussions of the Parent Company and the Operating Partnership in this report should be read in conjunction with each other to understand the results of the Company’s operations on a consolidated basis and how management operates the Company.
Management operates the Parent Company and the Operating Partnership as one enterprise. The management of the Parent Company consists of the same members as the management of the Operating Partnership. These members are officers of both the Parent Company and of the Operating Partnership.
The Company believes that combining the annual reports on Form 10-K of the Parent Company and the Operating Partnership into a single report will:
•facilitate a better understanding by the investors of the Parent Company and the Operating Partnership by enabling them to view the business as a whole in the same manner as management views and operates the business;
•remove duplicative disclosures and provide a more straightforward presentation in light of the fact that a substantial portion of the disclosure applies to both the Parent Company and the Operating Partnership; and
•create time and cost efficiencies through the preparation of one combined report instead of two separate reports.
There are few differences between the Parent Company and the Operating Partnership, which are reflected in the footnote disclosures in this report. The Company believes it is important to understand the differences between the Parent Company and the Operating Partnership in the context of how these entities operate as an interrelated consolidated company. The Parent Company is a REIT, whose only material asset is its ownership of the partnership interests of the Operating Partnership. As a result, the Parent Company does not conduct business itself, other than acting as the sole general partner of the Operating Partnership, issuing public equity from time to time (and contributing the net proceeds of such issuances to the Operating Partnership) and guaranteeing the debt obligations of the Operating Partnership. The Operating Partnership holds substantially all the assets of the Company, including the Company's ownership interests in the real estate ventures described below. The Operating Partnership conducts the operations of the Company’s business and is structured as a partnership with no publicly traded equity. Except for net proceeds from equity issuances by the Parent Company, which are contributed to the Operating Partnership in exchange for partnership units, the Operating Partnership generates the capital required by the Company’s business through the Operating Partnership’s operations, by the Operating Partnership’s direct or indirect incurrence of indebtedness or through the issuance of partnership units of the Operating Partnership or equity interests in subsidiaries of the Operating Partnership.
The equity and noncontrolling interests in the Parent Company and the Operating Partnership’s equity are the main areas of difference between the consolidated financial statements of the Parent Company and the Operating Partnership. The common units of limited partnership interest in the Operating Partnership are accounted for as partners’ equity in the Operating Partnership’s financial statements while the common units of limited partnership interests held by parties other than the Parent Company are presented as noncontrolling interests in the Parent Company’s financial statements. The differences between the Parent Company and the Operating Partnership’s equity relate to the differences in the equity issued at the Parent Company and Operating Partnership levels.
2
To help investors understand the significant differences between the Parent Company and the Operating Partnership, this report presents the following as separate notes or sections for each of the Parent Company and the Operating Partnership:
•Consolidated Financial Statements;
•Parent Company’s and Operating Partnership’s Equity
This report also includes separate Item 9A. (Controls and Procedures) disclosures and separate Exhibit 31 and 32 certifications for each of the Parent Company and the Operating Partnership in order to establish that the Chief Executive Officer and the Chief Financial Officer of each entity have made the requisite certifications and that the Parent Company and Operating Partnership are compliant with Rule 13a-15 or Rule 15d-15 of the Securities Exchange Act of 1934, as amended, and 18 U.S.C. § 1350.
In order to highlight the differences between the Parent Company and the Operating Partnership, the separate sections in this report for the Parent Company and the Operating Partnership specifically refer to the Parent Company and the Operating Partnership. In the sections that combine disclosures of the Parent Company and the Operating Partnership, this report refers to such disclosures as those of the Company. Although the Operating Partnership is generally the entity that directly or indirectly enters into contracts and real estate ventures and holds assets and debt, reference to the Company is appropriate because the business is one enterprise and the Parent Company operates the business through the Operating Partnership.
3
TABLE OF CONTENTS
| Page | |||||
4
Filing Format
This combined Form 10-K is being filed separately by Brandywine Realty Trust (the “Parent Company”) and Brandywine Operating Partnership, L.P. (the “Operating Partnership”).
Forward-Looking Statements
The Private Securities Litigation Reform Act of 1995 provides a “safe harbor” for forward-looking statements. This report and other materials filed by us with the Securities and Exchange Commission (the “SEC”) (as well as information included in oral or other written statements made by us) contain statements that are forward-looking, including statements relating to business and real estate development activities, acquisitions, dispositions, future capital expenditures, financing sources, governmental regulation (including environmental regulation) and competition. We intend such forward-looking statements to be covered by the safe-harbor provisions of the 1995 Act. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “will,” “should” and similar expressions, as they relate to us, are intended to identify forward-looking statements. Although we believe that the expectations reflected in such forward-looking statements are based on reasonable assumptions, we can give no assurance that our expectations will be achieved. These forward-looking statements are inherently uncertain, and actual results may differ from expectations. Our actual future results and trends may differ materially from expectations depending on a variety of factors discussed in our filings with the Securities and Exchange Commission (the “SEC”). These factors include without limitation:
•uncertainty regarding the impact of the ongoing COVID-19 pandemic and measures intended to prevent its spread which may have a negative effect on our business, results of operations, cash flows and financial condition;
•the continuing impact of modest global economic growth, which may have a negative effect on, among other things, the following:
•the fundamentals of our business, including overall market occupancy, demand for office space and rental rates;
•the financial condition of our tenants, many of which are financial, legal and other professional firms, our lenders, counterparties to our derivative financial instruments and institutions that hold our cash balances and short-term investments, which may expose us to increased risks of default by these parties;
•the availability of financing on attractive terms or at all, which may adversely impact our future interest expense and our ability to pursue acquisition and development opportunities and refinance existing debt; and
•real estate asset valuations, a decline in which may limit our ability to dispose of assets at attractive prices or obtain or maintain debt financing secured by our properties or on an unsecured basis.
•changes in local real estate conditions (including changes in rental rates and the number of properties that compete with our properties);
•our failure to lease unoccupied space in accordance with our projections;
•our failure to re-lease occupied space upon expiration of leases;
•tenant defaults and the bankruptcy of major tenants;
•volatility in capital and credit markets, including changes that reduce availability, and increase costs, of capital;
•increasing interest rates, which could increase our borrowing costs and adversely affect the market price of our securities;
•failure of interest rate hedging contracts to perform as expected and the effectiveness of such arrangements;
•failure of acquisitions, developments and other investments, including projects undertaken through joint ventures and equity investments in third parties, to perform as expected;
•unanticipated costs associated with the purchase, integration and operation of our acquisitions;
•unanticipated costs to complete, lease-up and operate our developments and redevelopments;
•unanticipated costs associated with land development, including building and construction moratoriums and inability to obtain necessary zoning, land-use, building, occupancy and other required governmental approvals, construction cost increases or overruns and construction delays;
•lack of liquidity of real estate investments, which could make it difficult for us to respond to changing economic or financial conditions or changes in the operating performance of our properties;
•potential damage from natural disasters, including hurricanes and other weather-related events, which could result in substantial costs to us;
•impairment charges;
•uninsured losses due to insurance deductibles, self-insurance retention, uninsured claims or casualties, or losses in excess of applicable coverage;
•increased costs for, or lack of availability of, adequate insurance, including for terrorist acts or environmental liabilities;
•actual or threatened terrorist attacks;
5
•security breaches through cyber attacks, cyber intrusions or otherwise, as well as other significant disruptions of our information technology (IT) networks and related systems, which support our operations and our properties;
•the impact on workplace and tenant space demands driven by technology, employee culture and commuting patterns;
•demand for tenant services beyond those traditionally provided by landlords;
•liability and clean-up costs incurred under environmental or other laws;
•risks associated with our investments in real estate ventures and unconsolidated entities, including our lack of sole decision-making authority and our reliance on our venture partners’ financial condition;
•inability of real estate venture partners to fund venture obligations or perform under our real estate venture development agreements;
•failure to manage our growth effectively into new product types within our portfolio and real estate venture arrangements;
•failure of dispositions to close in a timely manner;
•the impact of climate change and compliance costs relating to laws and regulations governing climate change;
•risks associated with federal, state and local tax audits;
•complex regulations relating to our status as a real estate investment trust, or REIT, and the adverse consequences of our failure to qualify as a REIT;
•changes in accounting principles, or their application or interpretation, and our ability to make estimates and the assumptions underlying the estimates, which could have an effect on our earnings; and
•our internal control over financial reporting may not be considered effective which could result in a loss of investor confidence in our financial reports, and in turn could have an adverse effect on the market price of our securities.
Given these uncertainties, and the other risks identified in the “Risk Factors” section and elsewhere in this report, we caution readers not to place undue reliance on forward-looking statements. We assume no obligation to update or supplement forward-looking statements that become untrue because of subsequent events.
6
PART I
Item 1. Business
Overview
We are a self-administered and self-managed real estate investment trust ("REIT") engaged in the acquisition, development, redevelopment, ownership, management, and operation of a portfolio of office and mixed-use properties. During the twelve months ended December 31, 2020, we owned and managed properties within five markets: (1) Philadelphia Central Business District (“Philadelphia CBD”), (2) Pennsylvania Suburbs, (3) Austin, Texas (4) Metropolitan Washington, D.C., and (5) Other. The Philadelphia CBD segment includes properties located in the City of Philadelphia in Pennsylvania. The Pennsylvania Suburbs segment includes properties in Chester, Delaware and Montgomery counties in the Philadelphia suburbs. The Austin, Texas segment includes properties in the City of Austin, Texas. The Metropolitan Washington, D.C. segment includes properties in Northern Virginia, Washington, D.C., and Southern Maryland. The Other segment includes properties in Camden County in New Jersey and properties in New Castle County in Delaware. In addition to the five markets, our corporate group is responsible for cash and investment management, development of certain real estate properties during the construction period, and certain other general support functions. See Note 1, ''Organization of the Parent Company and the Operating Partnership," to our Consolidated Financial Statements for our property portfolio, management services and land holdings. Unless otherwise indicated, all references in this Form 10-K to “square feet” represent the net rentable area.
The Parent Company was organized and commenced its operations in 1986 as a Maryland REIT. The Parent Company owns its assets and conducts its operations through the Operating Partnership and subsidiaries of the Operating Partnership. The Operating Partnership was formed in 1996 as a Delaware limited partnership. The Parent Company controls the Operating Partnership as its sole general partner. See Note 1, ''Organization of the Parent Company and the Operating Partnership," to our Consolidated Financial Statements for the Parent Company's ownership interest in the Operating Partnership. The ownership interests in the Operating Partnership not owned by the Company consist of common units of limited partnership issued to the holders in exchange for contributions of properties to the Operating Partnership. Our structure as an “UPREIT” is designed, in part, to permit persons contributing properties to us to defer some or all of the tax liability they might otherwise incur in a sale of properties. We have offices in Philadelphia, Pennsylvania; Radnor, Pennsylvania; McLean, Virginia; Mount Laurel, New Jersey; Richmond, Virginia; Wilmington, Delaware; and Austin, Texas.
Our principal executive offices are located at 2929 Walnut Street, Suite 1700, Philadelphia, PA 19104, our telephone number is (610) 325-5600 and our website is www.brandywinerealty.com. The content on any website referred to in this Form 10-K is not incorporated by reference into this Form 10-K.
We file annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and other information with the SEC. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of that site is http://www.sec.gov. Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and other information filed or furnished by us with the SEC are available, without charge, on our website, http://www.brandywinerealty.com, as soon as reasonably practicable after they are electronically filed or furnished with the SEC. Copies are also available, free of charge, upon written request to Investor Relations, Brandywine Realty Trust, 2929 Walnut Street, Suite 1700, Philadelphia, PA 19104.
Business Segments
See Note 19, ''Segment Information,” to our Consolidated Financial Statements for information on results of operations of our reportable segments for the years ended December 31, 2020, 2019, and 2018 and balance sheet amounts as of December 31, 2020 and 2019.
Joint Ventures
From time to time we consider joint venture opportunities with institutional investors or other real estate companies. Joint venture partnerships provide us with additional sources of capital to share investment risk and fund capital requirements. In some instances, joint venture partnerships provide us with additional local market or product type expertise. For information regarding our joint ventures, see Note 4, ''Investment in Unconsolidated Real Estate Ventures,” to our Consolidated Financial Statements.
7
Developments/Redevelopments
Our regular interaction with tenants and other market participants keep us current on innovations in workplace layout and smart living. We leverage this information to identify properties primed for development or redevelopment to meet tenant demands and realize value. The expertise and relationships that we have built from managing complex construction projects allow us to add new assets to our portfolio and renovate existing assets in our portfolio.
Business Objective and Strategies for Growth
Our business objective is to deploy capital effectively to maximize our return on investment and thereby maximize our total return to shareholders. To accomplish this objective we seek to:
•concentrate on urban town centers and central business districts in selected regions, and be the best of class owner and developer in those markets with a full-service office in each of those markets providing property management, leasing, development, construction and legal expertise;
•maximize cash flow through leasing strategies designed to capture rental growth as rental rates increase and as leases are renewed;
•attain high tenant retention rates by providing a full array of property management, maintenance services and tenant service amenity programs responsive to the varying needs of our diverse tenant base;
•continue to cultivate long-term leasing relationships with a diverse base of high-quality and financially stable tenants;
•form joint ventures with high-quality partners having attractive real estate holdings or significant financial resources;
•utilize our reputation as a full-service real estate development and management organization to identify acquisition and development opportunities that will expand our business and create long-term value;
•increase the economic diversification of our tenant base while maximizing economies of scale; and
•selectively dispose of properties that do not support our long-term business objectives and growth strategies.
We also consider the following to be important objectives:
•to develop and opportunistically acquire high-quality office properties at attractive yields in markets that we expect will experience economic growth and where we can achieve operating efficiencies;
•to monetize or deploy our land inventory for development of high-quality office properties, or rezone from office/industrial to life science/lab, residential, retail and hotel to align with market and demand shifts as appropriate;
•to control development sites, including sites under purchase options, that could support new office, life science/lab, retail and residential development within our core markets;
•to capitalize on our redevelopment expertise to selectively develop, redevelop and reposition properties in desirable locations that other organizations may not have the resources to pursue;
•to own and develop high quality office and mixed-use real estate meeting the demands of today’s tenants who require sophisticated telecommunications and related infrastructure, support services, sustainable features and amenities, and to manage those facilities so as to continue to be the landlord of choice for both existing and prospective tenants;
•to strategically grow our portfolio through the development and acquisition of new product types that support our strategy of transient-oriented and amenity based mixed-use properties located in the central business district of Philadelphia, Pennsylvania; Pennsylvania Suburbs; Austin, Texas; and Washington, D.C.; and
•to secure third-party development contracts, which can be a significant source of revenue and enable us to utilize and grow our existing development and construction management resources.
We expect to concentrate our real estate activities in markets where we believe that:
•current and projected market rents and absorption statistics justify construction activity;
•we can maximize market penetration by accumulating a critical mass of properties and thereby enhance operating efficiencies;
•barriers to entry (such as zoning restrictions, utility availability, infrastructure limitations, development moratoriums and limited developable land) will create supply constraints on available space; and
•there is potential for economic growth, particularly job growth and industry diversification.
Operational Strategy
We currently expect to continue to operate in markets where we have a concentration advantage due to economies of scale. We believe that where possible, it is best to operate with a strong base of properties in order to benefit from the personnel allocation and the market strength associated with managing multiple properties in the same market. We also intend to
8
selectively dispose of properties and redeploy capital if we determine a property cannot meet our long term earnings growth expectations. We believe that recycling capital is an important aspect of maintaining the overall quality of our portfolio.
Our broader strategy remains focused on continuing to grow earnings, enhance liquidity and strengthen our balance sheet through capital retention, debt reduction, targeted sales activity and management of our existing and prospective liabilities.
In the long term, we believe that we are well positioned in our current markets and have the expertise to take advantage of both development and acquisition opportunities, as warranted by market and economic conditions, in new markets that have healthy long-term fundamentals and strong growth projections. This capability, combined with what we believe is a conservative financial structure, should allow us to achieve disciplined growth. These abilities are integral to our strategy of having a diverse portfolio of assets, which will meet the needs of our tenants.
We use experienced on-site construction superintendents, operating under the supervision of project managers and senior management, to control the construction process and mitigate the various risks associated with real estate development.
In order to fund developments, redevelopments and acquisitions, as well as refurbish and improve existing properties, we primarily use proceeds from property dispositions, excess cash from operations after satisfying our dividend and other financing requirements, and external sources of debt and equity capital. The availability of funds for new investments and maintenance of existing properties largely depends on capital markets and liquidity factors over which we can exert little control.
Competition
The real estate business is highly competitive. Our properties compete for tenants with similar properties primarily on the basis of location, total occupancy costs (including base rent and operating expenses), services and amenities provided, and the design and condition of the improvements. We also face competition when attempting to acquire or develop real estate, including competition from domestic and foreign financial institutions, other REITs, life insurance companies, pension funds, partnerships and individual investors. Additionally, our ability to compete depends upon trends in the economies of our markets, investment alternatives, financial condition and operating results of current and prospective tenants, availability and cost of capital, construction and renovation costs, land availability, our ability to obtain necessary construction approvals, taxes, governmental regulations, legislation and population trends.
Human Capital Resources
As of December 31, 2020, we had approximately 341 employees. We are focused on creating a challenging, enriching, respectful, diverse, inclusive, collaborative and rewarding work environment for our employees whom we consider to be among our most valuable assets. We offer the following policies and programs which we believe are illustrative of our continued commitment to our employees:
•A compensation program and benefits package which we consider to be competitive among our peers.
•An extensive Employee Safety Manual, and thoughtful operational protocols and other measures, which prioritize the health, safety and well-being of our employees.
•Our promotion of diversity and inclusion in our hiring practices.
◦In 2020, approximately 33% of all new hires were females and approximately 58% of all new hires were ethnic minorities.
•Regular training and career development opportunities and a tuition reimbursement program.
•The regular assessment of the engagement, satisfaction and retention of our employees.
•Programs such as internally organized affinity groups which are intended to foster an atmosphere of collaboration and inclusion.
Environmental, Social, and Corporate Governance
In connection with our goal of achieving the highest principles of environment, social, and governance (ESG) standards, in 2020, we released our inaugural comprehensive Global Reporting Initiative (GRI) aligned Corporate Social Responsibility Report, which set forth 20 Goals and Key Performance Indicators aligned with the U.N. Sustainable Development Goals and the early stages of our strategy to manage climate risk in alignment with the Task Force on Climate-Related Financial
9
Disclosures (TCFD). In addition, we reset our reduction targets for energy, greenhouse gas emissions and water consumption to 15% by 2025 over our 2018 baseline.
The following tables provide our consumption and progress as of year-end 2019 on energy, water, and greenhouse gas emission reductions over our 2018 baseline. This data represents energy and water consumption for Brandywine owned and managed buildings where data was available. Data for the year ended 2020 is not yet available and is expected to be included in our annual Global Real Estate Sustainability Benchmark (“GRESB”) submission in the second quarter of 2021.
Energy Consumption:
| Year | Energy Consumption Data Coverage as a % of Floor Area (a) | Total Energy Consumed by Floor Area with Data Coverage (MWh) | % of Energy Generated from Renewable Sources (b) | Same Store change in Energy Consumption of Floor Area with Data Coverage (c) | % of Eligible Portfolio that has Obtained an Energy Rating and is Certified to ENERGY STAR (d) | |||||||||||||||||||||||||||
| 2018 | 89 | % | 447,814 | 49 | % | N/A | 58 | % | ||||||||||||||||||||||||
| 2019 | 90 | % | 405,446 | 49 | % | (10) | % | 35 | % | |||||||||||||||||||||||
Water Consumption:
| Year | Water Withdrawal Data Coverage as a % of Total Floor Area (a) | Total water Withdrawn by Portfolio (m3) | Same Store Change in Water Withdrawn for Floor Area with data Coverage (e) | |||||||||||||||||
| 2018 | 86 | % | 1,037,678 | N/A | ||||||||||||||||
| 2019 | 88 | % | 1,036,805 | — | % | |||||||||||||||
GHG Emissions:
| Year | Scope 1 & 2 GHG Data Coverage as % of Total Floor Area (f) | Scope 1 & 2 GHG Emissions (Tonnes CO2) | Same Store Change in Scope 1 & 2 GHG Emissions Data (g) | |||||||||||||||||
| 2018 | 88 | % | 145,652 | N/A | ||||||||||||||||
| 2019 | 89 | % | 133,563 | (8) | % | |||||||||||||||
(a)Represents the percentage of square footage where consumption data was obtained for the portfolio for the calendar year.
(b)Percentage of energy generated from renewable sources represents purchasing of green power direct from utilities to offset energy usage in deregulated energy markets.
(c)Same Store change in energy consumption compares usage only for the buildings with data available in both 2018 and 2019.
(d)Reduction is substantially the result of the Commercial Buildings Energy Consumption Survey updated modeling in 2019 and the resulting industry-wide drop in ENERGY STAR scores.
(e)Same Store change in water consumption compares usage only for the buildings with data available in both 2018 and 2019.
(f)Scope 1 emissions are calculated by measuring the on-site fuel consumption and combustion (e.g., natural gas consumption, company-owned vehicles), and Scope 2 emissions are calculated by measuring purchased electricity that is generated from off-site sources for the percentage of square footage where data was obtained for the portfolio for the calendar year.
(g)Same Store change in Scope 1 & 2 emissions is based on only comparing the emissions for buildings where comparable data was available for both 2018 and 2019.
In 2020, we earned the highest-level Governance score from ISS, continued to maintain an A rating from MSCI ESG Research, received our sixth annual GRESB Green Star ranking, and achieved Green Lease Leader’s Gold recognition from the Department of Energy and Institute for Market Transformation. We were also recognized as the most committed building owner in the Philadelphia 2030 District initiative to achieve substantial reduction in energy use by the year 2030. We have 21.9 million square feet of green building certifications across our portfolio, including the first UL Verified Healthy Building IAQ Verification Mark certified building in Philadelphia.
With all the challenges of 2020, we believe we responded to the COVID-19 pandemic with proactive plans for a safe and seamless “return to work” for our tenants and by giving back to the many needs of the local community. Our volunteer efforts and financial contributions included over $20,000 collected by employees and matched by us to support 16 third-party employees in our extended family of vendors who were impacted by furloughs and layoffs. Through a meals program in
10
partnership with several of our food and beverage tenants, we funded over 36,000 meals to Philadelphians in need. We also donated $350,000 to the Enterprise Center to launch the Grow Philadelphia Small Business COVID-19 Resilience Fund, and provided $200,000 to the African American Chamber of Commerce to make low-interest loans available to Chamber members impacted by the COVID-19 pandemic and social unrest.
Item 1A. Risk Factors
You should carefully consider these risk factors, together with all of the other information included in this Annual Report on Form 10-K, including our consolidated financial statements and the related notes thereto, before you decide whether to make an investment in our securities. The risks set out below are not the only risks we face. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially and adversely affect our business, prospects, financial condition, cash flows, liquidity, funds from operations, results of operations, share price, ability to service our indebtedness, and/or ability to make cash distributions to our security holders (including those necessary to maintain our REIT qualification). In such case, the value of our common shares and the trading price of our securities could decline, and you may lose all or a significant part of your investment. Some statements in the following risk factors constitute forward looking statements. Please refer to the explanation of the qualifications and limitations on forward-looking statements under “Forward-Looking Statements” of this Form 10-K.
Economic Risk Factors
Adverse economic and geopolitical conditions could have a material adverse effect on our results of operations, financial condition and our ability to pay distributions to our shareholders.
Our business is affected by global, national and local economic conditions. Our portfolio consists primarily of office buildings (as compared to real estate companies with portfolios of multiple asset classes). Our financial performance and the value of our real estate assets, and consequently the value of our securities, 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, results of operations, financial condition and ability to make distributions to our security holders will be adversely affected. The following factors, among others, may materially and adversely affect the income generated by our properties and our performance generally:
•adverse changes in international, national or local economic and demographic conditions;
•increased vacancies or our inability to rent space on favorable terms, including market pressures to offer tenants rent abatements, increased tenant improvement packages, early termination rights, below market rental rates or below-market renewal options;
•significant job losses in the financial and professional services industries may occur, which may decrease demand for office space, causing market rental rates and property values to be negatively impacted;
•changes in space utilization by our tenants due to technology, economic conditions, impact of pandemics, and business culture may decrease demand for office space, causing market rental rates and property values to be negatively impacted;
•deterioration in the financial condition of our tenants may result in tenant defaults under leases, including due to bankruptcy, and adversely impact our ability to collect rents from our tenants;
•competition from other office and mixed-use properties, and increased supply of such properties;
•increases in non-discretionary operating costs, including insurance expense, utilities, real estate taxes, state and local taxes, labor shortages and heightened security costs may not be offset by increased market rental rates;
•reduced values of our properties would limit our ability to dispose of assets at attractive prices, limit our access to debt financing secured by our properties and reduce the availability of unsecured loans;
•increases in interest rates, reduced availability of financing and reduced liquidity in the capital markets may adversely affect our ability or the ability of potential buyers of properties and tenants of properties to obtain financing on favorable terms, or at all;
•one or more lenders under our unsecured revolving credit facility could refuse or be unable to fund their financing commitment to us and we may not be able to replace the financing commitment of any such lenders on favorable terms, or at all; and
•civil disturbances, earthquakes and other natural disasters, or terrorist acts or acts of war may result in uninsured or underinsured losses.
Our performance is dependent upon the economic conditions of the markets in which our properties are located.
Our results of operations will be significantly influenced by the economies and other conditions of the real estate markets in which we operate, particularly in Philadelphia, Pennsylvania, the suburbs of Philadelphia, Pennsylvania, Austin, Texas,
11
Washington, D.C., Northern Virginia and Southern Maryland. Any adverse changes in economic conditions in any of these economies or real estate markets could negatively affect cash available for distribution and debt service. Our financial performance and ability to make distributions to our shareholders and pay debt service is particularly sensitive to the economic conditions in these markets. The local economic climate, which may be adversely impacted by business layoffs or downsizing, industry slowdowns, changing demographics and other factors, and local real estate conditions, such as demand for office space, operating expenses and real estate taxes, may affect revenues and the value of properties, including properties to be acquired or developed.
We may suffer adverse consequences due to the financial difficulties, bankruptcy or insolvency of our tenants.
Periodically, our tenants experience financial difficulties, including bankruptcy, insolvency or a general downturn in their business, and these difficulties may have an adverse effect on our cash flow, results of operations, financial condition and ability to make distributions to our shareholders. We cannot assure you that any tenant that files for bankruptcy protection will continue to pay us rent. A bankruptcy filing by or relating to one of our tenants or a lease guarantor would bar efforts by us to collect pre-bankruptcy debts from that tenant or lease guarantor, or its property, unless we receive an order permitting us to do so from the bankruptcy court. In addition, we cannot evict a tenant solely because of bankruptcy. The bankruptcy of a tenant or lease guarantor could delay our efforts to collect past due balances under the relevant leases, and could ultimately preclude collection of these sums. If a lease is assumed by the tenant in bankruptcy, all pre-bankruptcy balances due under the lease must be paid to us in full. If, however, a lease is rejected by a tenant in bankruptcy, we would have only a general, unsecured claim for damages. Any such unsecured claim would only be paid to the extent that funds are available and only in the same percentage as is paid to all other holders of general, unsecured claims. Restrictions under the bankruptcy laws further limit the amount of any other claims that we can make if a lease is rejected. As a result, it is likely that we would recover substantially less than the full value of the remaining rent during the term. See Item 7., “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Factors that May Influence Future Results of Operations - Tenant Credit Risk.”
Real Estate Industry Risk Factors
We may experience increased operating costs, which might reduce our profitability.
Our properties are subject to increases in operating expenses such as for insurance, real estate taxes, cleaning, electricity, heating, ventilation and air conditioning, administrative costs and other costs associated with security, landscaping and repairs and maintenance of our properties. In general, our tenant leases allow us to pass through all or a portion of these costs to them. We cannot assure you, however, that tenants will actually bear the full burden of these increased costs, or that such increased costs will not lead them, or other prospective tenants, to seek office space elsewhere. If operating expenses increase, the availability of other comparable office space in our core geographic markets might limit our ability to increase rents; if operating expenses increase without a corresponding increase in revenues, our profitability could diminish and limit our ability to make distributions to shareholders.
Our investment in property development or redevelopment may be more costly or difficult to complete than we anticipate.
We intend to continue to develop properties where market conditions warrant such investment. Once made, these investments may not produce results in accordance with our expectations. Risks associated with our development and construction activities include:
•unavailability of favorable financing alternatives in the private and public debt markets;
•insufficient capital to pay development costs;
•limited experience in developing or redeveloping properties in certain of our geographic markets may lead us to incorrectly project development costs and returns on our investments;
•dependence on the financial, technology and professional services sector as part of our tenant base;
•construction costs exceeding original estimates due to rising interest rates, diminished availability of materials and labor, and increases in the costs of materials and labor;
•construction and lease-up delays resulting in increased debt service, fixed expenses and construction or renovation costs;
•expenditure of funds and devotion of management’s time to projects that we do not complete;
•occupancy rates and rents at newly completed properties may fluctuate depending on a number of factors, including market and economic conditions, resulting in lower than projected rental rates and a corresponding lower return on our investment;
12
•complications (including building moratoriums and anti-growth legislation) in obtaining necessary zoning, occupancy and other governmental permits; and
•increased use restrictions by local zoning or planning authorities limiting our ability to develop and impacting the size of developments.
See Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Factors that May Influence Future Results of Operations - Development Risk.”
Our development projects and third party property management business may subject us to certain liabilities.
We may hire and supervise third party contractors to provide construction, engineering and various other services for wholly owned development projects, development projects undertaken by real estate ventures in which we hold an equity interest and manage or properties we are managing on behalf of unaffiliated third parties. Certain of these contracts may be structured such that we are the principal rather than the agent. As a result, we may assume liabilities in the course of the project and be subjected to, or become liable for, claims for construction defects, negligent performance of work or other similar actions by third parties we have engaged. Adverse outcomes of disputes or litigation could negatively impact our business, results of operations and financial condition, particularly if we have not limited the extent of the damages to which we may be liable, or if our liabilities exceed the amounts of the insurance that we carry. Moreover, our tenants and third party customers may seek to hold us accountable for the actions of contractors because of our role even if we have technically disclaimed liability as a legal matter, in which case we may determine it necessary to participate in a financial settlement for purposes of preserving the tenant or customer relationship.
Acting as a principal may also mean that we pay a contractor before we have been reimbursed, which exposes us to additional risks of collection in the event of a bankruptcy or insolvency. Similarly, a contractor may file for bankruptcy or commit fraud before completing a project that we have funded in part or in full. As part of our project management business, we are responsible for managing various contractors required for a project, including general contractors, in order to ensure that the cost of a project does not exceed the contract amount and that the project is completed on time. In the event that one or more of the contractors involved does not, or cannot, perform as a result of bankruptcy or for another reason, we may be responsible for cost overruns, as well as the consequences of late delivery. In the event that we have not accurately estimated our own costs of providing services under guaranteed cost contracts, we may be exposed to losses on such contracts.
Our development projects may be dependent on strategic alliances with unaffiliated third parties.
We face challenges in managing our strategic alliances. As our development projects become more complex, the need for trust, collaboration, and equitable risk-sharing is essential to the success of these projects. The alliances we engage in are driven by the complementary skills and capabilities of our partners. Despite the diligence performed establishing these alliances, our objectives may not fully align with those of our partners throughout the development project or projects. Disagreements with one or more third parties with whom we partner in the development of one or more of the development components may restrict our ability to act exclusively in our own interests. In addition, failure of one or more third parties with whom we partner to fulfill obligations to us could result in delays and increased costs to us associated with finding a suitable replacement partner. Increased costs could require us to revise or abandon our activities entirely with respect to one or more components of the project and, in such event, we would not recover, and would be required to write-off, costs we had capitalized in development.
We face risks associated with the development of mixed-use commercial properties.
We operate, are currently developing, and may in the future develop, properties either alone or through real estate ventures that are known as “mixed-use” developments. In addition to the development of office space, mixed-use projects may also include space for life science/lab, residential, retail, hotel or other commercial purposes. If a development project consists of a non-office or non-retail use, we may seek to develop that component ourselves, assign the rights to that component to a third-party developer with experience in that use, or we may seek to partner with such a developer. If we do not assign the rights or partner with such a developer, or if we choose to develop the other component ourselves, we would be exposed not only to those risks typically associated with the development of properties for office and retail use generally, but also to specific risks associated with the development and ownership of non-office and non-retail real estate. In addition, even if we assign the rights to develop certain components or elect to participate in the development through a real estate venture, we may be exposed to the risks associated with the failure of the other party to complete the development as expected. These include the risk that the other party would default on its obligations, necessitating that we complete the other component ourselves (including providing any necessary financing). In the case of residential properties, these risks also include competition for prospective residents from other operators whose properties may be perceived to offer a better location or
13
better amenities or whose rent may be perceived as a better value given the quality, location and amenities that the resident seeks. Because we have limited experience with residential properties, we expect to retain third parties to manage our residential properties. In the case of hotel properties, the risks also include increases in inflation and utilities that may not be offset by increases in room rates. We are also dependent on business and commercial travelers and tourism. If we decide not to sell or participate in a real estate venture and instead hire a third party manager, we would be dependent on their key personnel to provide services on our behalf and we may not find a suitable replacement if the management agreement is terminated, or if key personnel leave or otherwise become unavailable to us.
We face risks associated with property acquisitions.
We have acquired in the past and intend to continue to pursue the acquisition of properties, including large portfolios that would increase our size and potentially alter our capital structure. The success of such transactions is subject to a number of factors, including the risks that:
•we may not be able to obtain financing for such acquisitions on favorable terms;
•acquired properties may fail to perform as expected;
•even if we enter into an acquisition agreement for a property, we may be unable to complete that acquisition after making a non-refundable deposit and incurring certain other acquisition-related costs;
•the actual costs of repositioning, redeveloping or maintaining acquired properties may be higher than our estimates;
•the acquired properties may be located in new markets where we may have limited knowledge and understanding of the local economy, an absence of business relationships in the area or unfamiliarity with local governmental and permitting procedures; and
•we may not be able to efficiently integrate acquired properties, particularly portfolios of properties, into our organization and manage new properties in a way that allows us to realize anticipated cost savings and synergies.
Acquired properties may subject us to known and unknown liabilities.
Properties that we acquire may be subject to known and unknown liabilities for which we would have no recourse, or only limited recourse, to the former owners of such properties or otherwise. As a result, if a liability were asserted against us based upon ownership of acquired property, we might be required to pay significant sums to settle it, which could adversely affect our financial results and cash flow. Unknown liabilities relating to acquired properties could include:
•liabilities for clean-up of pre-existing disclosed or undisclosed environmental contamination;
•claims by tenants, vendors, municipalities or other persons arising on account of actions or omissions of the former owners or occupants of the properties; and
•liabilities incurred in the ordinary course of business.
We have agreed not to sell certain of our properties and to maintain indebtedness subject to guarantees.
We acquired in the past and in the future may acquire properties or portfolios of properties through tax deferred contribution transactions in exchange for partnership interests in our Operating Partnership. This acquisition structure has the effect, among other factors, of reducing the amount of tax depreciation we can deduct over the tax life of the acquired properties, and typically requires that we agree to protect the contributors’ ability to defer recognition of taxable gain through restrictions on our ability to dispose of the acquired properties and/or the allocation of partnership debt to the contributors to maintain their tax bases. We have agreed not to sell some of our properties for varying periods of time, in transactions that would trigger taxable income to the former owners, and we may enter into similar arrangements as a part of future property acquisitions. These agreements generally provide that we may dispose of the subject properties only in transactions that qualify as tax-free exchanges under Section 1031 of the Internal Revenue Code or in other tax deferred transactions. Such transactions can be difficult to complete and can result in the property acquired in exchange for the disposed of property inheriting the tax attributes (including tax protection covenants) of the sold property. Violation of such tax protection agreements may impose significant costs on us. As a result, we are restricted with respect to decisions related to financing, encumbering, expanding or selling these properties. These restrictions on dispositions could limit our ability to sell an asset or pay down partnership debt during a specified time, or on terms, that would be favorable absent such restrictions.
We have also entered into agreements that provide prior owners of properties with the right to guarantee specific amounts of indebtedness and, in the event that the specific indebtedness that they guarantee is repaid or reduced, we would be required to provide substitute indebtedness for them to guarantee. These agreements may hinder actions that we may otherwise desire to take to repay or refinance guaranteed indebtedness because we would be required to make payments to the beneficiaries of such agreements if we violate these agreements.
14
We may be unable to renew leases or re-lease space as leases expire; certain leases may expire early.
If tenants do not renew their leases upon expiration, we may be unable to re-lease the space. Even if the tenants do renew their leases or if we can re-lease the space, the terms of renewal or re-leasing (including the cost of required renovations) may be less favorable than the current lease terms. Certain leases grant the tenants an early termination right upon payment of a termination penalty or if we fail to comply with certain material lease terms. Our inability to renew or release spaces and the early termination of certain leases could adversely affect our ability to make distributions to shareholders. See Item 7., “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Factors that May Influence Future Results of Operations - Tenant Rollover Risk.”
We face significant competition from other real estate developers.
We compete with real estate developers, operators and institutions for tenants and acquisition and development opportunities. Some of these competitors may have significantly greater financial resources than we have. Such competition may reduce the number of suitable investment opportunities available to us, may interfere with our ability to attract and retain tenants and may increase vacancies, which could result in increased supply and lower market rental rates, reducing our bargaining leverage and adversely affect our ability to improve our operating leverage. In addition, some of our competitors may be willing (e.g., because their properties may have vacancy rates higher than those for our properties) to make space available at lower rental rates or with higher tenant concession percentages than available space in our properties. We cannot assure you that this competition will not adversely affect our cash flow and our ability to make distributions to shareholders.
Property ownership through unconsolidated real estate ventures may limit our ability to act exclusively in our interest.
We develop, acquire, and contribute properties in unconsolidated real estate ventures with other persons or entities when we believe circumstances warrant the use of such structures. For information regarding our unconsolidated real estate ventures, see Note 4, ''Investment in Unconsolidated Real Estate Ventures,” to our Consolidated Financial Statements. We could become engaged in a dispute with one or more of our venture partners that might affect our ability to operate a jointly-owned property. Moreover, our venture partners may, at any time, have business, economic or other objectives that are inconsistent with our objectives, including objectives that relate to the appropriate timing and terms of any sale or refinancing of a property. In some instances, our venture partners may have competing interests in our markets that could create conflicts of interest. If the objectives of our venture partners or the lenders to our unconsolidated real estate ventures are inconsistent with our own objectives, we may not be able to act exclusively in our interests and the value of our investment in the unconsolidated real estate ventures may be affected.
Preferred equity, mezzanine loans, and other investments that are subordinated or otherwise junior in an issuer’s capital structure and that involve privately negotiated structures will expose us to greater risk of loss.
We may have made preferred equity investments and may in the future make or acquire additional preferred equity investments, mezzanine loans and other investments that are subordinated or otherwise junior in an issuer’s capital structure and that involve privately negotiated structures. To the extent we invest in subordinated debt or mezzanine tranches of an entity’s capital structure, or in preferred equity instruments, such investments and our remedies with respect thereto, including the ability to foreclose on collateral (if any) securing such investments, will be subject to the rights of holders of more senior tranches in the issuer’s capital structure and, to the extent applicable, contractual intercreditor, co-lender and/or participation agreement provisions. Significant losses related to such investments or loans could adversely affect our results of operations and financial condition.
Because real estate is illiquid, we may be unable to sell properties when in our best interest.
Real estate investments generally, and in particular large office and mixed use properties like those that we own, often cannot be sold quickly. The capitalization rates at which properties may be sold could be higher than historical rates, thereby reducing our potential proceeds from sale. Consequently, we may not be able to alter our portfolio promptly in response to changes in economic or other conditions. In addition, the Internal Revenue Code limits our ability, as a REIT, to sell properties that we have held for fewer than two years without potential adverse consequences to us. Furthermore, properties that we have developed and have owned for a significant period of time or that we acquired in exchange for partnership interests in the Operating Partnership often have a low tax basis. If we were to dispose of any of these properties in a taxable transaction, we may be required under provisions of the Internal Revenue Code applicable to REITs to distribute a significant amount of the taxable gain to our shareholders and this could, in turn, impact our cash flow. In some cases, tax protection
15
agreements with third parties will prevent us from selling certain properties in a taxable transaction without incurring substantial costs. In addition, purchase options and rights of first refusal held by tenants or partners in unconsolidated real estate ventures may also limit our ability to sell certain properties. All of these factors reduce our ability to respond to changes in the performance of our investments and could adversely affect our cash flow and ability to make distributions to shareholders as well as the ability of someone to purchase us, even if a purchase were in our shareholders’ best interests.
Regulatory Risk Factors
Changes in tax rates and regulatory requirements may adversely affect our cash flow and results of operations.
Because increases in income and service taxes are generally not passed through to tenants under leases, such increases may adversely affect our cash flow and ability to make expected distributions to shareholders. Our properties are also subject to various regulatory requirements, such as those relating to the environment, fire and safety. Our failure to comply with these requirements could result in the imposition of fines and damage awards and could result in a default under some of our tenant leases. Moreover, the costs to comply with any new or different regulations could adversely affect our cash flow and our ability to make distributions to shareholders. We cannot assure you that these requirements will not change or that newly imposed conditions will not require significant expenditures in order to be compliant.
Potential liability for environmental contamination could result in substantial costs.
Under various federal, state and local laws, ordinances and regulations, we may be liable for the costs to investigate and remove or remediate hazardous or toxic substances on or in our properties, often regardless of whether we know of or are responsible for the presence of these substances. These costs may be substantial. While we do maintain environmental insurance, we cannot be assured that our insurance coverage will be sufficient to protect us from all of the aforesaid remediation costs. Also, if hazardous or toxic substances are present on a property, or if we fail to adequately remediate such substances, our ability to sell or rent the property or to borrow using that property as collateral may be adversely affected.
Other laws and regulations govern indoor and outdoor air quality including those that can require the abatement or removal of asbestos-containing materials in the event of damage, demolition, renovation or remodeling and also govern emissions of and exposure to asbestos fibers in the air. The maintenance and removal of lead paint and certain electrical equipment containing polychlorinated biphenyls (PCBs) and underground storage tanks are also regulated by federal and state laws. We are also subject to risks associated with human exposure to chemical or biological contaminants such as molds, pollens, viruses and bacteria which, above certain levels, can be alleged to be connected to allergic or other health effects and symptoms in susceptible individuals. We could incur fines for environmental compliance and be held liable for the costs of remedial action with respect to the foregoing regulated substances or tanks or related claims arising out of environmental contamination or human exposure to contamination at or from our properties.
Additionally, we develop, manage, lease and/or operate various properties for third parties. Consequently, we may be considered to have been or to be an operator of these properties and, therefore, potentially liable for removal or remediation costs or other potential costs that could relate to hazardous or toxic substances.
Americans with Disabilities Act compliance could be costly.
The Americans with Disabilities Act of 1990, or the ADA, requires that all public accommodations and commercial facilities, including office buildings, meet certain federal requirements related to access and use by disabled persons. Compliance with ADA requirements could involve the removal of structural barriers from certain disabled persons’ entrances which could adversely affect our financial condition and results of operations. Other federal, state and local laws may require modifications to or restrict further renovations of our properties with respect to such accesses. Noncompliance by us with the ADA or similar or related laws or regulations could result in the imposition on us of governmental fines or in awards of damages against us in favor of private litigants. In addition, changes to existing requirements or enactments of new requirements could require significant expenditures. Such costs may adversely affect our cash flow and ability to make distributions to shareholders.
16
Disaster Risk Factors
The ongoing COVID-19 pandemic and measures intended to prevent its spread present material uncertainty and risk and could have a material adverse effect on our business, results of operations, cash flows and financial condition.
The ongoing COVID-19 pandemic across many countries around the globe, including the U.S., has significantly slowed global economic activity, caused significant volatility in financial markets, and resulted in unprecedented job losses causing many to fear an imminent global recession. The global impact of the outbreak has been rapidly evolving and the responses of many countries, including the U.S., have included quarantines, restrictions on business activities, including construction activities, restrictions on group gatherings, and restrictions on travel. These actions are creating disruption in the global economy and supply chains and adversely impacting many industries, including owners and developers of office and mixed-use buildings. Moreover, there is significant uncertainty around the breadth and duration of business disruptions related to COVID-19, as well as its impact on the U.S. economy and consumer confidence. Demand for space at our properties is dependent on a variety of macroeconomic factors, such as employment levels, interest rates, changes in stock market valuations, rent levels and availability of competing space. These factors can be significantly adversely affected by a variety of factors beyond our control. The extent to which COVID-19 impacts our results will depend on future developments, many of which are highly uncertain and cannot be predicted, including new information which may emerge concerning the severity of COVID-19 and the actions taken to contain it or treat its impact. The impact of the COVID-19 pandemic could negatively impact our business in a number of ways, including: (i) deterioration in the financial condition of our tenants and in their ability to pay rents; (ii) reduction in demand for space in our portfolio; (iii) costs associated with construction delays and cost overruns at our development and redevelopment projects; (iv) reduction in availability of, and increased costs of, capital; and (v) failure of our contract counterparties, including partners in Real Estate Ventures, to meet their obligations. The ongoing situation presents material uncertainty and risk and could have a material adverse effect on our business, results of operations, cash flows and financial condition.
We face possible risks associated with the physical effects of climate change.
The physical effects of climate change could have a material adverse effect on our properties, operations and business. For example, many of our properties are located along the East Coast, particularly those in the central business districts of Philadelphia, Pennsylvania and Washington, D.C. To the extent climate change causes variations in weather patterns, our markets could experience increases in storm intensity and rising sea-levels. Over time, these conditions could result in declining demand for office space in our buildings or our inability to operate the buildings at all. Climate change may also have indirect effects on our business by increasing the cost of (or making unavailable) property insurance on terms we find acceptable, increasing the cost of energy and increasing the cost of snow removal at our properties. While we maintain insurance coverage for flooding, we may not have adequate insurance to cover the associated costs of repair or reconstruction of sites for a major future event, lost revenue, including from new tenants that could have been added to our properties but for the event, or other costs to remediate the impact of a significant event. There can be no assurance that climate change will not have a material adverse effect on our properties, operations or business.
REIT Risk Factors
Failure to qualify as a REIT would subject us to U.S. federal income tax which would reduce the cash available for distribution to our shareholders.
We operate our business to qualify to be taxed as a REIT for federal income tax purposes. We have not requested and do not plan to request a ruling from the IRS that we qualify as a REIT, and the statements in this Report are not binding on the IRS or any court. As a REIT, we generally will not be subject to federal income tax on the income that we distribute currently to our shareholders. Many of the REIT requirements, however, are highly technical and complex. The determination that we are a REIT requires an analysis of various factual matters and circumstances that may not be entirely within our control. For example, to qualify as a REIT, at least 95% of our gross income must come from specific passive sources, such as rent, that are itemized in the REIT tax laws. In addition, to qualify as a REIT, we cannot own specified amounts of debt and equity securities of some issuers. We also are required to distribute to our shareholders with respect to each year at least 90% of our REIT taxable income (excluding net capital gains). The fact that we hold substantially all of our assets through the Operating Partnership and its subsidiaries and unconsolidated real estate ventures further complicates the application of the REIT requirements for us. Even a technical or inadvertent mistake could jeopardize our REIT status and, given the highly complex nature of the rules governing REITs and the ongoing importance of factual determinations, we cannot provide any assurance that we will continue to qualify as a REIT. Changes to rules governing corporate taxation, including REITs, were made by
17
legislation commonly known as the Tax Cuts and Jobs Act (the “TCJA”) and the Protecting Americans From Tax Hikes Act of 2015, signed into law on December 22, 2017 and December 18, 2015, respectively. Congress and the IRS might make further changes to the tax laws and regulations, and the courts might issue new rulings or interpretations of tax law, that make it more difficult, or impossible, for us to remain qualified as a REIT. If we fail to qualify as a REIT for federal income tax purposes and are able to avail ourselves of one or more of the statutory savings provisions in order to maintain our REIT status, we would nevertheless be required to pay penalty taxes of $50,000 or more for each such failure.
If we fail to qualify as a REIT for federal income tax purposes, and are unable to avail ourselves of certain savings provisions set forth in the Internal Revenue Code, we would be subject to federal income tax at regular corporate rates on all of our income. As a taxable corporation, we would not be allowed to take a deduction for distributions to shareholders in computing our taxable income or pass through long term capital gains to individual shareholders at favorable rates. For tax years beginning before January 1, 2018, we also could be subject to the federal alternative minimum tax and possibly increased state and local taxes. We would not be able to elect to be taxed as a REIT for four years following the year we first failed to qualify unless the IRS were to grant us relief under certain statutory provisions. If we failed to qualify as a REIT, we would have to pay significant income taxes, which would reduce our net earnings available for investment or distribution to our shareholders. This likely would have a significant adverse effect on our earnings and likely would adversely affect the value of our securities. In addition, we would no longer be required to pay any distributions to shareholders.
Failure of the Operating Partnership (or a subsidiary partnership or unconsolidated real estate venture) to be treated as a partnership would have serious adverse consequences to our shareholders.
If the IRS were to successfully challenge the tax status of the Operating Partnership or any of its subsidiary partnerships or unconsolidated real estate ventures for federal income tax purposes, the Operating Partnership or the affected subsidiary partnership or unconsolidated real estate venture would be taxable as a corporation. In such event, we would cease to qualify as a REIT and the imposition of a corporate tax on the Operating Partnership, subsidiary partnership or unconsolidated real estate venture would reduce the amount of cash available for distribution from the Operating Partnership to us and ultimately to our shareholders.
To maintain our REIT status, we may be forced to borrow funds on a short term basis during unfavorable market conditions.
As a REIT, we are subject to certain distribution requirements, including the requirement to distribute 90% of our REIT taxable income. These requirements may result in our having to make distributions at a disadvantageous time or to borrow funds at unfavorable rates. Compliance with this requirement may hinder our ability to operate solely on the basis of maximizing profits.
We will pay some taxes even if we qualify as a REIT, which will reduce the cash available for distribution to our shareholders.
Even if we qualify as a REIT for federal income tax purposes, we will be required to pay certain federal, state and local taxes on our income and properties. For example, we will be subject to income tax to the extent we distribute less than 100% of our REIT taxable income, including capital gains. Additionally, we will be subject to a 4% nondeductible excise tax on the amount, if any, by which dividends paid by us in any calendar year are less than the sum of 85% of our ordinary income, 95% of our capital gain net income and 100% of our undistributed income from prior years. Moreover, if we have net income from “prohibited transactions,” that income will be subject to a 100% penalty tax. In general, prohibited transactions are sales or other dispositions of property held primarily for sale to customers in the ordinary course of business. The determination as to whether a particular sale or series of sales is/are a prohibited transaction depends on the facts and circumstances related to that sale. We cannot guarantee that sales of our properties would not be prohibited transactions unless we comply with certain statutory safe-harbor provisions.
In addition, any net taxable income earned directly by our taxable REIT subsidiaries, or through entities that are disregarded for federal income tax purposes as entities separate from our taxable REIT subsidiaries, will be subject to federal and possibly state corporate income tax. In this regard, several provisions of the laws applicable to REITs and their subsidiaries ensure that a taxable REIT subsidiary will be subject to an appropriate level of federal income taxation. For example, a taxable REIT subsidiary is limited in its ability to deduct certain interest payments made to an affiliated REIT. In addition, the REIT has to pay a 100% penalty tax on some payments that it receives or on some deductions taken by a taxable REIT subsidiary if the economic arrangements between the REIT, the REIT’s customers, and the taxable REIT subsidiary are not comparable to
18
similar arrangements between unrelated parties. Finally, some state and local jurisdictions may tax some of our income even though as a REIT we are not subject to federal income tax on that income because not all states and localities follow the federal income tax treatment of REITs. To the extent that we and our affiliates are required to pay federal, state and local taxes, we will have less cash available for distributions to our shareholders.
Legislation that modifies the rules applicable to partnership tax audits may affect us.
The Bipartisan Budget Act of 2015, effective for taxable years beginning after December 31, 2017, requires our operating partnership and any subsidiary partnership to pay the hypothetical increase in partner-level taxes (including interest and penalties) resulting from an adjustment of partnership tax items on audit or in other tax proceedings, unless the partnership elects an alternative method under which the taxes resulting from the adjustment (and interest and penalties) are assessed at the partner level. Many uncertainties remain as to the application of these rules, including the application of the alternative method to partners that are REITs, and the impact they will have on us. However, it is possible, that partnerships in which we invest may be subject to U.S. federal income tax, interest and penalties in the event of a U.S. federal income tax audit as a result of these law changes.
Legislative or regulatory tax changes related to REIT’s could materially and adversely affect our business.
At any time, the federal income tax laws or regulations governing REITs or the other administrative interpretations of those laws or regulations may be changed, possibly with retroactive effect. We cannot predict if or when any new federal income tax law, regulation or administrative interpretation, or any amendment to any existing federal income tax law, regulation or administrative interpretation, will be adopted, promulgated or become effective or whether any such law, regulation or interpretation may take effect retroactively. We and our shareholders could be adversely affected by any such change in, or any new, federal income tax law, regulation or administrative interpretation.
If a transaction intended to qualify as a Section 1031 Exchange is later determined to be taxable, or if we are unable to identify and complete the acquisition of suitable replacement property to effect a Section 1031 Exchange, we may face adverse consequences.
From time to time we seek to dispose of properties in transactions that are intended to qualify as tax-deferred “like kind exchanges” under Section 1031 of the Internal Revenue Code of 1986, as amended (a “Section 1031 Exchange”). It is possible that the qualification of a transaction as a Section 1031 Exchange could be successfully challenged and determined to be currently taxable. It is also possible that we are unable to identify and complete the acquisition of suitable replacement property to effect a Section 1031 Exchange. In any such case, our taxable income and earnings and profits would increase. This could increase the dividend income to our shareholders by reducing any return of capital they received. In some circumstances, we may be required to pay additional dividends or, in lieu of that, corporate income tax, possibly including interest and penalties. As a result, we may be required to borrow funds in order to pay additional dividends or taxes, and the payment of such taxes could cause us to have less cash available to distribute to our shareholders. In addition, if a Section 1031 Exchange were later to be determined to be taxable, we may be required to amend our tax returns for the applicable year in question, including any information reports we sent our shareholders. Moreover, it is possible that legislation could be enacted that could modify or repeal the laws with respect to Section 1031 Exchanges, which could make it more difficult or not possible for us to dispose of properties on a tax deferred basis.
Failure to obtain the tax benefits and remain compliant within Qualified Opportunity Zones and Keystone Opportunity Zones may have adverse consequences.
Certain of our Properties have the benefit of governmental tax incentives for development in areas and neighborhoods which have not historically seen robust commercial development. These incentives typically have specific sunset provisions and may be subject to governmental discretion in the eligibility or award of the applicable incentives. We invest and plan to continue to heavily invest in Qualified Opportunity Zones as part of the federal program and Keystone Opportunity Zones in Pennsylvania due to the related tax benefits. The expiration of these incentive programs or the inability of potential tenants or users to be eligible for or to obtain governmental approval of the incentives may have an adverse effect on the value of our Properties and on our cash flow and net income, and may result in impairment charges. In addition, the failure to remain compliant with such programs may result in significant tax burdens.
19
Certain limitations will exist with respect to a third party’s ability to acquire us or effectuate a change in control.
Limitations imposed to protect our REIT status. In order to protect us against the loss of our REIT status, our Declaration of Trust limits any shareholder from owning more than 9.8% in value of our outstanding shares, although we have granted in the past, and may continue to grant in the future certain waivers of this limitation to certain shareholders under certain conditions. The ownership limit may have the effect of precluding acquisition of control of us. If anyone acquires shares in excess of the ownership limit, we may:
•consider the transfer to be null and void;
•not reflect the transaction on our books;
•institute legal action to stop the transaction;
•not pay dividends or other distributions with respect to those shares;
•not recognize any voting rights for those shares; and
•consider the shares held in trust for the benefit of a person to whom such shares may be transferred.
Limitation due to our ability to issue preferred shares. Our Declaration of Trust authorizes our Board of Trustees to cause us to issue preferred shares, without limitation as to amount and without shareholder consent. Our Board of Trustees is able to establish the preferences and rights of any preferred shares issued and these shares could have the effect of delaying or preventing someone from taking control of us, even if a change in control were in our shareholders’ best interests.
Advance Notice Provisions for Shareholder Nominations and Proposals. Our bylaws require advance notice for shareholders to nominate persons for election as trustees at, or to bring other business before, any meeting of our shareholders. This bylaw provision limits the ability of shareholders to make nominations of persons for election as trustees or to introduce other proposals unless we are notified in a timely manner prior to the meeting.
General Risk Factors
We are dependent upon our key personnel.
We are dependent upon our key personnel, particularly Gerard H. Sweeney - President and Chief Executive Officer, Thomas Wirth - Executive Vice President and Chief Financial Officer, Jeffrey DeVuono - Executive Vice President and Senior Managing Director, William Redd – Executive Vice President and Senior Managing Director and George Johnstone - Executive Vice President, Operations. Among the reasons that Messrs. Sweeney, Wirth, DeVuono, Redd and Johnstone are important to our success is that each has a favorable reputation, which attracts business and investment opportunities and assists us in negotiations with lenders, unconsolidated real estate venture partners and other investors. If we lost their services, our relationships with lenders, potential tenants and industry personnel could be affected. We are dependent on our other executive officers for strategic business direction and real estate experience. Loss of their services could adversely affect our operations.
Our ability to make distributions is subject to various risks.
Historically, we have paid quarterly distributions to our shareholders. Our ability to make distributions in the future will depend upon:
•the operational and financial performance of our properties;
•capital expenditures with respect to existing, developed and newly acquired properties;
•the amount of, and the interest rates on, our debt;
•capital needs of our unconsolidated real estate ventures;
•general and administrative costs associated with our operation as a publicly-held REIT; and
•the absence of significant expenditures relating to environmental and other regulatory matters.
Certain of these matters are beyond our control and any adverse changes could have a material adverse effect on our cash flow and our ability to make distributions to shareholders.
We face possible federal, state and local tax audits.
Because we are organized and qualify as a REIT, we are generally not subject to federal income taxes, but are subject to certain state and local taxes. Certain entities through which we own real estate have undergone tax audits. There can be no assurance that future audits will not have a material adverse effect on our results of operations.
20
Many factors can have an adverse effect on the market value of our securities.
A number of factors might adversely affect the price of our securities, many of which are beyond our control. These factors include:
•increases in market interest rates, relative to the dividend yield on our securities. If market interest rates go up, prospective purchasers of our securities may require a higher yield. 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 shares to go down;
•anticipated benefit of an investment in our securities as compared to investment in securities of companies in other industries (including benefits associated with the tax treatment of dividends and distributions);
•perception by market professionals of REITs generally and REITs comparable to us in particular;
•level of institutional investor interest in our securities;
•relatively low trading volumes in securities of REITs;
•our results of operations and financial condition; and
•investor confidence in the stock market generally.
The market value of our common shares is based primarily upon the market’s perception of our growth potential and our current and potential future earnings and cash distributions. Consequently, our common shares may trade at prices that are higher or lower than our net asset value per common share. If our future earnings or cash distributions are less than expected, it is likely that the market price of our common shares will diminish.
Additional issuances of equity securities may be dilutive to shareholders.
The interests of our shareholders could be diluted if we issue additional equity securities to finance future developments or acquisitions or to repay indebtedness. Our Board of Trustees may authorize the issuance of additional equity securities without shareholder approval. In addition, in the past we have maintained a continuous offering program, which, when such program was effective, allowed us to issue shares in at-the-market offerings. We may in the future enter into a similar continuous offering program. Our ability to execute our business strategy depends upon our access to an appropriate blend of debt financing, including unsecured lines of credit and other forms of secured and unsecured debt, and equity financing, including the issuance of common and preferred equity.
The issuance of preferred securities may adversely affect the rights of holders of our common shares.
Because our Board of Trustees has the power to establish the preferences and rights of each class or series of preferred shares, we may afford the holders in any series or class of preferred shares preferences, distributions, powers and rights, voting or otherwise, senior to the rights of holders of common shares. Our Board of Trustees also has the power to establish the preferences and rights of each class or series of units in the Operating Partnership, and may afford the holders in any series or class of preferred units preferences, distributions, powers and rights, voting or otherwise, senior to the rights of holders of common units.
We may incur impairment charges.
We evaluate on a quarterly basis our real estate portfolios for indicators of impairment. Impairment charges reflect management's judgment of the probability and severity of the decline in the value of real estate assets and investments we own. These charges and provisions may be required in the future as a result of factors beyond our control, including, among other things, changes in our expected holding periods, changes in the economic environment and market conditions affecting the value of real property assets or natural or man-made disasters. If we are required to take impairment charges, our results of operations could be adversely impacted.
An increase in interest rates would increase our interest costs on variable rate debt and could adversely impact our ability to refinance existing debt or sell assets on favorable terms or at all.
Rising interest rates could limit our ability to refinance existing debt when it matures or significantly increase our future interest expense. From time to time, we enter into interest rate swap agreements and other interest rate hedging contracts. While these agreements are intended to lessen the impact of rising interest rates on us, they also expose us to the risk that the other parties to the agreements will not perform, we could incur significant costs associated with the settlement or termination
21
of the agreements, the agreements will be unenforceable and the underlying transactions will fail to qualify as highly-effective cash flow hedges under the applicable accounting guidance. In addition, an increase in interest rates could decrease the amounts third parties are willing or able to pay for our assets, thereby limiting our ability to recycle capital and change our portfolio promptly in response to changes in economic or other conditions.
Our degree of leverage could limit our ability to obtain additional financing or affect the market price of our equity shares or debt securities.
Our organizational documents do not contain any limitation on the amount of indebtedness we may incur. We are subject to risks associated with debt financing, such as the insufficiency of cash flow to meet required debt service payment obligations and the inability to refinance existing indebtedness. If our debt cannot be paid, refinanced or extended at maturity, we may not be able to make distributions to shareholders at expected levels or at all. Furthermore, an increase in our interest expense could adversely affect our cash flow and ability to make distributions to shareholders. If we do not meet our debt service obligations, any properties securing such indebtedness could be foreclosed on, which would have a material adverse effect on our cash flow and ability to make distributions and, depending on the number of properties foreclosed on, could threaten our continued viability. Our degree of leverage could also make us more vulnerable to a downturn in business or the economy in general.
The terms and covenants relating to our indebtedness could adversely impact our economic performance.
Our credit facilities, term loans and the indenture governing our unsecured public debt securities contain (and any new or amended facility and term loans may contain) restrictions, requirements and other limitations on our ability to incur indebtedness, including total debt to asset ratios, secured debt to total asset ratios, debt service coverage ratios and minimum ratios of unencumbered assets to unsecured debt which we must maintain. Our ability to borrow under our credit facilities is subject to compliance with such financial and other covenants. In the event that we fail to satisfy these covenants, we would be in default under the credit facilities, the term loans and the indenture and may be required to repay such debt with capital from other sources. Under such circumstances, other sources of capital may not be available to us, or may be available only at unattractive terms. In addition, the mortgages on our properties, including mortgages encumbering our unconsolidated real estate ventures, contain customary covenants such as those that limit our ability, without the prior consent of the lender, to further mortgage the applicable property or to discontinue insurance coverage. If we breach covenants in our secured debt agreements, the lenders can declare a default and take possession of the property securing the defaulted loan.
A downgrading of our debt could subject us to higher borrowing costs.
In the event that our unsecured debt is downgraded by Moody’s Investor Services or Standard & Poor’s from the current ratings, we would likely incur higher borrowing costs and the market prices of our common shares and debt securities might decline.
Discontinuation of the London interbank offered rate and transition to an alternative benchmark could adversely affect our operating results
On July 27, 2017, the Chief Executive of the U.K. Financial Conduct Authority (the “FCA”), which regulates the London interbank offered rate (“LIBOR”), announced that the FCA will no longer persuade or compel banks to submit rates for the calculation of the LIBOR benchmark after 2021. This announcement indicates that the continuation of LIBOR on the current basis cannot be guaranteed after 2021, and there is a substantial risk that LIBOR will be discontinued or modified by the end of 2021. Our variable rate debt and derivative financial instruments are indexed to LIBOR and failure by market participants and regulators to successfully replace LIBOR could result in disruption in the financial markets which could have a negative impact on our results of operations and our variable rate debt.
Data security breaches may cause damage to our business and reputation.
In the ordinary course of our business, we maintain sensitive data, including our proprietary business information and the information of our tenants and business partners, in our data centers and on our networks. The risk of a security breach or disruption, mainly through cyber-attack or cyber intrusion, including by computer hackers, foreign governments and cyber terrorists, has generally increased in number, intensity and sophistication. Notwithstanding the security measures undertaken, our information technology may be vulnerable to attacks or breaches resulting in proprietary information being publicly disclosed, lost or stolen. There can be no assurance that our security efforts and measures will be effective or that attempted security breaches or disruptions would not be successful or damaging. Protected information, networks, systems and facilities remain vulnerable because the techniques used in such attempted security breaches evolve and may not be recognized or
22
detected until launched against a target. Accordingly, we may be unable to anticipate these techniques or to implement adequate security barriers or other preventative measures.
Data and security breaches could:
•disrupt the proper functioning of our networks and systems and therefore our operations and/or those of our client tenants;
•result in misstated financial reports, violations of loan covenants, missed reporting deadlines, and/or missed permitting deadlines;
•result in our inability to properly monitor our compliance with the rules and regulations regarding our qualification as a REIT;
•result in the unauthorized access to, and destruction, loss, theft, misappropriation, or release of proprietary, confidential, sensitive, or otherwise valuable information of ours or others, which others could use to compete against us or for disruptive, destructive, or otherwise harmful purposes and outcomes;
•result in our inability to maintain the building systems relied upon by our client tenants for the efficient use of their leased space;
•require significant management attention and resources to remedy any damages that result;
•subject us to claims and lawsuits for breach of contract, damages, credits, penalties, or termination of leases or other agreements; and/or
•damage our reputation among our client tenants and investors generally.
While we maintain insurance coverage that may, subject to policy terms and conditions including deductibles, cover specific aspects of cyber risks, such insurance coverage may be insufficient to cover all losses.
Third parties to whom we outsource certain of our functions are also subject to the risks outlined above. We review and assess the cybersecurity controls of our third party service providers and vendors, as appropriate, and make changes to our business processes to manage these risks. Data breaches and/or the insolvency of such third parties and vendors may result in us incurring costs and may have other negative consequences.
Terrorist attacks and other acts of violence or war may adversely impact our performance and may affect the markets on which our securities are traded.
Terrorist attacks against our properties, or against the United States or our interests, may negatively impact our operations and the value of our securities. Attacks or armed conflicts could result in increased operating costs; for example, it might cost more in the future for building security, property and casualty insurance, and property maintenance. As a result of terrorist activities and other market conditions, the cost of insurance coverage for our properties could also increase. In addition, our insurance policies may not recover all of our property replacement costs and lost revenue resulting from an attack. We might not be able to pass through the increased costs associated with such increased security measures and insurance to our tenants, which could reduce our profitability and cash flow. Furthermore, any terrorist attacks or armed conflicts could result in increased volatility in or damage to the United States and worldwide financial markets and economy. Such adverse economic conditions could affect the ability of our tenants to pay rent and our cost of capital, which could have a negative impact on our results.
Some potential losses are not covered by insurance.
We currently carry property insurance against all-risks of physical loss or damage (unless otherwise excluded in the policy) including time element and commercial general liability coverage on all of our properties. There are, however, types of losses, such as lease and other contract claims, biological, radiological and nuclear hazards and acts of war that generally are not insured. We cannot assure you that we will be able to renew insurance coverage in an adequate amount or at reasonable prices. In addition, insurance companies may no longer offer coverage against certain types of losses, such as losses due to earthquakes, terrorist acts and mold, flood, or, if offered, these types of insurance may be prohibitively expensive. Should an uninsured loss or a loss in excess of insured limits occur, 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. In such an event, we might nevertheless remain obligated for any mortgage debt or other financial obligations related to the property. We cannot assure you that material losses in excess of insurance proceeds will not occur in the future. If any of our properties were to experience a catastrophic loss, it could seriously disrupt our operations, delay revenue and result in large expenses to repair or rebuild the property. Such events could adversely affect our cash flow and ability to make distributions to shareholders. If one or more of our insurance providers were to fail to pay a claim as a result of insolvency, bankruptcy or otherwise, the nonpayment of such
23
claims could have an adverse effect on our financial condition and results of operations. In addition, if one or more of our insurance providers were to become subject to insolvency, bankruptcy or other proceedings and our insurance policies with the provider were terminated or cancelled as a result of those proceedings, we cannot guarantee that we would be able to find alternative coverage in adequate amounts or at reasonable prices. In such case, we could experience a lapse in any or adequate insurance coverage with respect to one or more properties and be exposed to potential losses relating to any claims that may arise during such period of lapsed or inadequate coverage.
In addition to property and casualty insurance, we use a combination of insurance products, some of which include deductibles and self-insured retention amounts, to provide risk mitigation for the potential liabilities associated with various liabilities, including workers’ compensation, general contractors, directors and officers and employee health-care benefits. Liabilities associated with the risks that are retained by us are estimated, in part, by considering historical claims experience and actuarial assumptions. While we carry general liability and umbrella policies to mitigate such losses on our general liability risks, our results could be materially impacted by claims and other expenses related to such insurance plans if future occurrences and claims differ from these assumptions and historical trends or if employee health-care claims which we self-insure up to a set limit per employee (and which are insured above such self-insured retention amount) exceed our expectations or historical trends.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
Overview
As of December 31, 2020, we owned 82 properties that contain an aggregate of approximately 13.9 million net rentable square feet and consist of 73 office properties and five mixed-use properties (collectively, the "Core Properties"), one development property and three redevelopment properties (collectively, the "Properties"). The properties are located in or near Philadelphia, Pennsylvania; Austin, Texas; Metropolitan Washington, D.C.; Southern New Jersey; and Wilmington, Delaware. As of December 31, 2020, the properties, excluding properties under development and redevelopment, were approximately 91.9% occupied. As of December 31, 2020, we also owned economic interests in nine unconsolidated real estate ventures (collectively, the “Real Estate Ventures”). See Note 4, ''Investment in Unconsolidated Real Estate Ventures,” to our Consolidated Financial Statements for further information.
Property Statistics
The following table shows lease expirations for the Core Properties as of December 31, 2020, during each of the next 10 years and thereafter. This table assumes no exercise of renewal options or termination rights:
| Year of Lease Expiration December 31, | Rentable Square Feet (in thousands) | Final Annualized Base Rent Under Expiring Leases (a) (in thousands) | Percentage of Total Final Annualized Base Rent Under Expiring Leases | |||||||||||||||||
2021 | 1,166 | $ | 34,682 | 7.1 | % | |||||||||||||||
| 2022 | 1,490 | 55,598 | 11.4 | % | ||||||||||||||||
| 2023 | 645 | 23,354 | 4.8 | % | ||||||||||||||||
| 2024 | 1,133 | 43,308 | 8.9 | % | ||||||||||||||||
| 2025 | 1,115 | 45,417 | 9.3 | % | ||||||||||||||||
| 2026 | 1,029 | 39,045 | 8.0 | % | ||||||||||||||||
| 2027 | 1,299 | 51,951 | 10.6 | % | ||||||||||||||||
| 2028 | 632 | 23,696 | 4.9 | % | ||||||||||||||||
| 2029 | 1,104 | 48,373 | 9.9 | % | ||||||||||||||||
| 2030 | 682 | 32,421 | 6.6 | % | ||||||||||||||||
| 2031 and thereafter | 2,027 | 90,040 | 18.5 | % | ||||||||||||||||
| 12,322 | $ | 487,885 | 100.0 | % | ||||||||||||||||
24
(a)Represents the annualized cash rental rate of base rents, including tenant reimbursements, in the final month prior to expiration. Tenant reimbursements generally include payment of a portion of real estate taxes, operating expenses, and common area maintenance and utility charges.
The following table shows the geographic locations for the Core Properties as of December 31, 2020. For more information about our geographic locations, see Note 19, ''Segment Information" to our Consolidated Financial Statements:
| Location | Number of Properties | Net Rentable Square Feet (in thousands) | Percentage Leased as of December 31, 2020 | Leased Square Feet (in thousands) | Total Base Rent (a) (in thousands) | Percentage of Base Rent | ||||||||||||||||||||||||||||||||
| Philadelphia | 11 | 4,756 | 98.0 | % | 4,660 | $ | 135,086 | 39.9 | % | |||||||||||||||||||||||||||||
| Pennsylvania Suburbs | 34 | 4,035 | 94.6 | % | 3,819 | 111,163 | 32.8 | % | ||||||||||||||||||||||||||||||
| Austin | 21 | 2,967 | 93.2 | % | 2,764 | 63,740 | 18.8 | % | ||||||||||||||||||||||||||||||
| Metropolitan Washington, D.C. | 5 | 1,034 | 73.4 | % | 759 | 20,812 | 6.1 | % | ||||||||||||||||||||||||||||||
| Other | 7 | 620 | 74.8 | % | 464 | 8,045 | 2.4 | % | ||||||||||||||||||||||||||||||
| 78 | 13,412 | 92.9 | % | 12,466 | $ | 338,846 | 100.0 | % | ||||||||||||||||||||||||||||||
(a)Represents base rents earned during the year, including tenant reimbursements, and excludes parking income, tenant inducements, and deferred market rent adjustments.
The following table shows the major tenants of the Core Properties as of December 31, 2020 and assumes that none of the tenants exercise renewal options or termination rights, if any, at or prior to scheduled expirations:
| Tenant Name | Annualized Base Rents (a) (in thousands) | Percentage of Aggregate Annualized Base Rents | ||||||||||||
| IBM, Inc. | $ | 24,112 | 5.6 | % | ||||||||||
| Comcast Corporation | 13,952 | 3.2 | % | |||||||||||
| Spark Therapeutics, Inc. | 12,851 | 3.0 | % | |||||||||||
| FMC Corporation | 10,965 | 2.5 | % | |||||||||||
| CSL Behring, LLC | 10,081 | 2.3 | % | |||||||||||
| Lincoln National Management Co. | 9,308 | 2.2 | % | |||||||||||
| Troutman Pepper Hamilton Sanders LLP | 9,301 | 2.2 | % | |||||||||||
| Dechert LLP | 8,090 | 1.9 | % | |||||||||||
| Independence Blue Cross, LLC | 7,422 | 1.7 | % | |||||||||||
| The Trustees of the University of Pennsylvania | 6,996 | 1.6 | % | |||||||||||
| Other | 317,592 | 73.8 | % | |||||||||||
| $ | 430,670 | 100.0 | % | |||||||||||
(a)Represents the annualized base rent, including tenant reimbursements, for each lease in effect at December 31, 2020. Tenant reimbursements generally include payment of a portion of real estate taxes, operating expenses, and common area maintenance and utility charges.
Developments/Redevelopments
As of December 31, 2020, we were developing/redeveloping 0.4 million rentable square feet of office/life science properties.
Item 3. Legal Proceedings
We are involved from time to time in legal proceedings, including tenant disputes, vendor disputes, employee disputes and disputes arising out of agreements to purchase or sell properties or unconsolidated real estate ventures and disputes relating to state and local taxes. We generally consider these disputes to be routine to the conduct of our business and management believes that the final outcome of such proceedings will not have a material adverse effect on our financial position, results of operations or liquidity.
Item 4. Mine Safety Disclosures
Not applicable.
25
PART II
Item 5. Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities
The common shares of Brandywine Realty Trust are traded on the New York Stock Exchange (“NYSE”) under the symbol “BDN.” There is no established trading market for units of partnership interests in the Operating Partnership. On February 18, 2021, there were 563 holders of record of our common shares and 22 holders of record (in addition to Brandywine Realty Trust) of Class A units of limited partnership interest in the Operating Partnership. On February 18, 2021, the last reported sales price of the common shares on the NYSE was $11.65.
For each quarter in 2020 and 2019, the Operating Partnership paid a cash distribution per Class A unit in an amount equal to the dividend paid on a common share for each such quarter.
In order to maintain the status of Brandywine Realty Trust as a REIT, we must make annual distributions to shareholders of at least 90% of our taxable income (not including net capital gains). Future distributions will be declared at the discretion of our Board of Trustees and will depend on our actual cash flow, financial condition and capital requirements, the annual distribution requirements under the REIT provisions of the Internal Revenue Code and such other factors as our Board of Trustees deem relevant. Our credit facilities contain certain restrictions on the payment of dividends. Those restrictions permit us to pay dividends to the greater of (i) an aggregate amount required by us to retain our qualification as a REIT for Federal income tax purposes and (ii) 95% of our funds from operations (FFO). See Item 6., “Selected Financial Data – Liquidity,” and Note 9, ''Debt Obligations,” to our Consolidated Financial Statements for further details.
Our Board of Trustees has adopted a dividend policy designed such that our quarterly distributions are consistent with our normalized annualized taxable income. We expect to make future quarterly distributions to shareholders; however, the timing and amount of future distributions will be at the discretion of our Board and will depend on our actual funds from operations, financial condition and capital requirements and the annual distribution requirements under the REIT provisions of the Code.
See Note 15, ''Share Based Compensation, 401(k) Plan and Deferred Compensation," to our Consolidated Financial Statements for information related to compensation plans under which our common shares are authorized for issuance. See Note 13, ''Beneficiaries' Equity of the Parent Company,” to our Consolidated Financial Statements for further information related to our share repurchase program during the year ended December 31, 2020.
In 2019, we redeemed 1,245 Class A units of limited partnership interest held by unaffiliated third parties for shares of common stock.
26
SHARE PERFORMANCE GRAPH
The SEC requires us to present a chart comparing the cumulative total shareholder return on the common shares with the cumulative total shareholder return of (i) a broad equity index and (ii) a published industry or peer group index. The following chart compares the cumulative total shareholder return for the common shares with the cumulative shareholder return of companies on (i) the S&P 500, (ii) the NAREIT All Equity REIT Index, (iii) the Russell 2000 and (iv) the NAREIT Equity Office Index for the period beginning December 31, 2015 and ending December 31, 2020 and assumes an investment of $100, with reinvestment of all dividends, has been made in the common shares and in each index on December 31, 2015.
| Period Ending | ||||||||||||||||||||||||||||||||||||||
| Index | 12/31/2015 | 12/31/2016 | 12/31/2017 | 12/31/2018 | 12/31/2019 | 12/31/2020 | ||||||||||||||||||||||||||||||||
| S&P 500 Index | 100.00 | 111.96 | 136.40 | 130.42 | 171.49 | 203.04 | ||||||||||||||||||||||||||||||||
| Russell 2000 Index | 100.00 | 121.31 | 139.08 | 123.76 | 155.35 | 186.36 | ||||||||||||||||||||||||||||||||
| Nareit All Equity REIT Index | 100.00 | 108.63 | 118.05 | 113.28 | 145.75 | 138.28 | ||||||||||||||||||||||||||||||||
| Brandywine Realty Trust | 100.00 | 126.01 | 144.21 | 106.63 | 137.47 | 111.21 | ||||||||||||||||||||||||||||||||
| Nareit Equity Office Index | 100.00 | 113.17 | 119.11 | 101.84 | 133.83 | 109.16 | ||||||||||||||||||||||||||||||||
Item 6. Selected Financial Data
None.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion should be read in conjunction with the Consolidated Financial Statements appearing elsewhere herein and is based primarily on our Consolidated Financial Statements for the years ended December 31, 2020, 2019 and 2018. This report including the following discussion, contains forward-looking statements, which we intend to be covered by the safe-harbor provisions of Section 27A of the Securities Act of 1933, as amended and Section 21E of the Securities
27
Exchange Act of 1934, as amended. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “will,” “should” and similar expressions, as they relate to us, are intended to identify forward-looking statements. Although we believe that the expectations reflected in such forward-looking statements are based on reasonable assumptions, we can give no assurance that our expectations will be achieved. These forward-looking statements are inherently uncertain, and actual results may differ from expectations. “See “Forward-Looking Statements” immediately before Part I of this report.
OVERVIEW
During the twelve months ended December 31, 2020, we owned and managed properties within five segments: (1) Philadelphia Central Business District (“Philadelphia CBD”), (2) Pennsylvania Suburbs, (3) Austin, Texas, (4) Metropolitan Washington, D.C., and (5) Other. The Philadelphia CBD segment includes properties located in the City of Philadelphia, Pennsylvania. The Pennsylvania Suburbs segment includes properties in Chester, Delaware and Montgomery counties in the Philadelphia suburbs. The Austin, Texas segment includes properties in the City of Austin, Texas. The Metropolitan Washington, D.C. segment includes properties in Northern Virginia, Washington, D.C. and Southern Maryland. The Other segment includes properties in Camden County, New Jersey and properties in New Castle County, Delaware. In addition to the five segments, our corporate group is responsible for cash and investment management, development of certain real estate properties during the construction period, and certain other general support functions.
We generate cash and revenue from leases of space at our properties and, to a lesser extent, from the management of properties owned by third parties and from investments in the Real Estate Ventures. Factors that we evaluate when leasing space include rental rates, costs of tenant improvements, tenant creditworthiness, current and expected operating costs, the length of the lease term, vacancy levels, and demand for space. We also generate cash through sales of assets, including assets that we do not view as core to our business plan, either because of location or expected growth potential, and assets that are commanding premium prices from third party investors.
Our financial and operating performance is dependent upon the demand for office, residential, parking, and retail space in our markets, our leasing results, our acquisition, disposition and development activity, our financing activity, our cash requirements and economic and market conditions, including prevailing interest rates.
We are closely monitoring the impact of the COVID-19 pandemic on all aspects of our business, including how it is impacting our tenants, employees, and business partners. Adverse changes in economic conditions, including the ongoing effects of the global COVID-19 pandemic, could result in a reduction of the availability of financing and potentially in higher borrowing costs. Vacancy rates may increase, and rental rates and rent collection rates may decline, beyond 2020 as the current economic climate may negatively impact tenants.
Overall economic conditions, including but not limited to higher unemployment and deteriorating financial and credit markets, could have a dampening effect on the fundamentals of our business, including increases in past due accounts, tenant defaults, lower occupancy and reduced effective rents. The ongoing COVID-19 pandemic has significantly slowed global economic activity, caused significant volatility in financial markets, and resulted in unprecedented job losses. In addition, the government responses to control the pandemic are creating disruption in the global economy and supply chains and adversely impacting many industries, including owners and developers of office and mixed-use building. These adverse conditions have impacted our net income and cash flows and could have a material adverse effect on our financial condition. We believe that the quality of our assets and the strength of our balance sheet will enable us to raise debt capital, if necessary, in various forms and from different sources, including through secured or unsecured loans from banks, pension funds and life insurance companies. However, there can be no assurance that we will be able to borrow funds on terms that are economically attractive or at all.
We continue to seek revenue growth throughout our portfolio by increasing occupancy and rental rates. Occupancy at our Core Properties at December 31, 2020 was 91.9% compared to 93.0% at December 31, 2019.
28
The table below summarizes selected operating and leasing statistics of our wholly owned operating properties for the years ended December 31, 2020 and 2019:
| Year Ended December 31, | |||||||||||
| 2020 | 2019 | ||||||||||
| Leasing Activity | |||||||||||
| Core Properties (1): | |||||||||||
| Total net rentable square feet owned | 13,412,591 | 16,110,042 | |||||||||
| Occupancy percentage (end of period) | 91.9 | % | 93.0 | % | |||||||
| Average occupancy percentage | 89.8 | % | 92.7 | % | |||||||
| Total Portfolio, less properties in development (2): | |||||||||||
| Tenant retention rate (3) | 52.2 | % | 65.8 | % | |||||||
| New leases and expansions commenced (square feet) | 861,978 | 1,113,029 | |||||||||
| Leases renewed (square feet) | 642,112 | 852,760 | |||||||||
| Net absorption (square feet) | (91,207) | 45,618 | |||||||||
| Percentage change in rental rates per square feet (4): | |||||||||||
| New and expansion rental rates | 21.5 | % | 13.3 | % | |||||||
| Renewal rental rates | 13.7 | % | 11.6 | % | |||||||
| Combined rental rates | 17.5 | % | 12.1 | % | |||||||
| Capital Costs Committed (5): | |||||||||||
| Leasing commissions (per square feet) | $ | 9.18 | $ | 7.94 | |||||||
| Tenant Improvements (per square feet) | $ | 22.06 | $ | 25.25 | |||||||
| Weighted average lease term (years) | 7.6 | 7.4 | |||||||||
| Total capital per square foot per lease year | $ | 4.01 | $ | 4.76 | |||||||
(1)Does not include properties under development, redevelopment, held for sale, or sold.
(2)Includes leasing related to completed developments and redevelopments, as well as sold properties.
(3)Calculated as percentage of total square feet.
(4)Includes base rent plus reimbursement for operating expenses and real estate taxes.
(5)Calculated on a weighted average basis.
In seeking to increase revenue through our operating, financing, and investment activities, we also seek to minimize operating risks, including (i) tenant rollover risk, (ii) tenant credit risk and (iii) development risk.
Tenant Rollover Risk:
We are subject to the risk that tenant leases, upon expiration, will not be renewed, that space may not be relet, or that the terms of renewal or reletting (including the cost of renovations) may be less favorable to us than the current lease terms. Leases that accounted for approximately 7.1% of our aggregate final annualized base rents as of December 31, 2020 (representing approximately 9.5% of the net rentable square feet of the properties) are scheduled to expire without penalty in 2021. We maintain an active dialogue with our tenants in an effort to maximize lease renewals. If we are unable to renew leases or relet space under expiring leases, at anticipated rental rates, or if tenants terminate their leases early, our results of operations and cash flow would be adversely impacted.
Tenant Credit Risk:
In the event of a tenant default, we may experience delays in enforcing our rights as a landlord and may incur substantial costs in protecting our investment. Our management regularly evaluates our accounts receivable reserve policy in light of our tenant base and general and local economic conditions. Our accounts receivable allowance was $5.1 million or 2.9% of total receivables (including accrued rent receivable) as of December 31, 2020 compared to $8.0 million or 4.0% of total receivables (including accrued rent receivable) as of December 31, 2019. The decrease in the accounts receivable allowance as a percentage of the total receivables is primarily due to the write-off of the accrued rent receivable for certain retail tenants where revenue is now being recognized on a cash basis due to collectability concerns arising from the economic conditions resulting from the COVID-19 pandemic.
29
If economic conditions deteriorate, including as a result of the ongoing COVID-19 pandemic, we may experience increases in past due accounts, defaults, lower occupancy and reduced effective rents. This condition would negatively affect our future net income and cash flows and could have a material adverse effect on our financial condition.
Development Risk:
Development projects are subject to a variety of risks, including construction delays, construction cost overruns, building moratoriums, inability to obtain financing on favorable terms, inability to lease space at projected rates, inability to enter into construction, development and other agreements on favorable terms, and unexpected environmental and other hazards. During the second quarter of 2020, certain development projects were impacted by building moratoriums imposed by local governments as a result of the COVID-19 pandemic. These moratoriums have since been lifted in all geographies in which we have active development projects, but could be reinstated in the event of a significant increase in COVID-19 cases. The construction delays did not materially impact the development projects.
As of December 31, 2020 the following active development and redevelopment projects remain under construction in progress and we were proceeding on the following activity (dollars, in thousands):
| Property/Portfolio Name | Location | Expected Completion | Activity Type | Approximate Square Footage/ Units | Estimated Costs | Amount Funded | ||||||||||||||||||||||||||||||||
| 405 Colorado Street (a) | Austin, TX | Q1 2021 | Development | 205,803 | $ | 122,000 | $ | 67,000 | ||||||||||||||||||||||||||||||
| 3000 Market Street (b) | Philadelphia, PA | Q3 2021 | Redevelopment | 64,070 | $ | 35,000 | $ | 16,900 | ||||||||||||||||||||||||||||||
(a)Estimated costs includes $2.1 million of existing property basis through a ground lease. Project includes 520 parking spaces.
(b)Estimated costs include $12.8 million of existing property basis.
In addition to the properties listed above, we have classified one office building in Radnor, Pennsylvania (acquired during the fourth quarter of 2020) and one parking facility in Philadelphia, Pennsylvania as redevelopment.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Management’s Discussion and Analysis of Financial Condition and Results of Operations discusses our Consolidated Financial Statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP). The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses for the reporting periods. Certain accounting policies are considered to be critical accounting policies, as they require management to make assumptions about matters that are highly uncertain at the time the estimate is made and changes in the accounting estimate are reasonably likely to occur from period to period. We believe the following critical accounting policies affect our more significant judgments and estimates used in the preparation of our consolidated financial statements.
Impairment
We assess each of our real estate investments for indicators of impairment quarterly or when circumstances indicate that a real estate investment may be impaired. When indicators of potential impairment are present that suggest that the carrying amounts of real estate investments and related intangible assets may not be recoverable, we assess the recoverability by determining whether the respective carrying values will be recovered through the estimated undiscounted future operating cash flows expected from the use of the assets and their eventual disposition over, in most cases, a ten-year holding period. If we believe there is a significant possibility that we might dispose of the assets earlier, we assess the recoverability using a probability weighted analysis of the estimated undiscounted future cash flows expected to be generated from the operations and eventual disposition of the assets over the various possible holding periods. If the recoverability assessment indicates that the carrying value of a tested real estate investment is not recoverable from estimated undiscounted future cash flows, it is written down to its estimated fair value and an impairment is recognized. If and when our plans change, we revise our recoverability analyses to use the cash flows expected from the operations and eventual disposition of each asset using holding periods that are consistent with our revised plans.
Real estate investment fair values are estimated based on contract prices, discounted cash flows, or comparable sales. Estimated future cash flows used in such analyses are based on our views of market and economic conditions. The estimation of future cash flows is subjective and is based on various assumptions, including but not limited to market rental rates, capitalization rates, and recent sales data for comparable real estate investments. Estimated future cash flows are discounted
30
when determining fair value of an asset. Most of these assumptions are influenced by our direct experience with the real estate investments and their markets as well as market data obtained from real estate leasing and brokerage firms. Determining the appropriate capitalization or discount rate also requires significant judgment and is typically based on many factors, including the prevailing rate for the market or submarket, as well as the quality and location of the real estate investment. Changes in the estimated future cash flows due to changes in our plans for a real estate investment, views of market and economic conditions and/or our ability to obtain development rights could result in recognition of an impairment which could be material.
Real estate investments held for sale are carried at the lower of their carrying values (i.e., cost less accumulated depreciation and any impairment recognized, where applicable) or estimated fair values less costs to sell. Accordingly, decisions to sell certain operating real estate investments, real estate investments in development or land held for development will result in impairments if carrying values of the specific real estate investments exceed their estimated fair values less costs to sell. The estimates of fair value consider matters such as recent sales data for comparable real estate investments and, where applicable, contracts or the results of negotiations with prospective purchasers. These estimates are subject to revision as market conditions, and our assessment of such conditions, change.
In addition to our real estate investments, we review each of our investments in unconsolidated real estate ventures to determine whether there are any indicators, including property operating performance, changes in anticipated hold periods, and general market conditions, that the Company's investment in the unconsolidated joint venture may be impaired. If any indicators of impairment are present, we calculate the fair value of the investment in the unconsolidated real estate venture. If the fair value of the investment is less than the carrying value, we determine whether the impairment is other than temporary. If the impairment is determined to be other than temporary, we record an impairment.
We use considerable judgment in the determination of whether indicators of impairment are present and, in the assumptions, estimations, and inputs used in calculating the fair value of the investment, which is generally determined through income valuation approaches, including discounted cash flows and direct capitalization models. These judgments are similar to those outlined above in the impairment of real estate investments. We also use judgment in making the determination as to whether or not the impairment is temporary by considering, among other things, the length of time that the market value has been less than cost, the financial condition of the unconsolidated real estate venture and our ability and intent to retain the investment long enough for a recovery in value. Our judgments related to the determination of fair value and whether an impairment is other than temporary could result in the recognition of an impairment which could be material.
Revenue Recognition
The majority of our revenues are derived from leases and are reflected as rents on the accompanying consolidated statements of operations. Rental revenue is recognized on a straight-line basis over the term of the lease.
Most of our leases involve some form of improvements to leased space. When we are required to provide improvements under the terms of a lease, we need to determine whether the improvements constitute landlord assets or tenant assets. If the improvements are landlord assets, we capitalize the cost of the improvements and recognize depreciation expense associated with such improvements over the shorter of the estimated useful life or the term of the lease. If the improvements are tenant assets, we defer the cost of improvements funded by us as a lease incentive asset and amortize it as a reduction of rental revenue over the term of the lease. Our determination of whether improvements are landlord assets or tenant assets also may affect when we commence revenue recognition in connection with a lease.
In determining whether improvements constitute landlord or tenant assets, we consider a number of factors that may require subjective or complex judgments, including: whether the improvements are unique to the tenant or reusable by other tenants; whether the tenant is permitted to alter or remove the improvements without our consent or without compensating us for any lost fair value; whether the ownership of the improvements remains with us or remains with the tenant at the end of the lease term; and whether the economic substance of the lease terms is properly reflected.
For certain leases, we make significant assumptions and judgments in determining the lease term, including assumptions when the lease provides the tenant with an early termination option. The lease term impacts the period over which we determine and record rental revenue and impacts the period over which we amortize lease-related costs. Changes in these assessments could result in the write-off of any recorded assets associated with straight-line rental revenue and acceleration of depreciation and amortization expense associated with costs we incurred related to these leases.
31
Purchase Price Allocation
When we acquire real estate investments, we allocate the purchase price to tangible assets, consisting of land, building, site improvements, and identified intangible assets and liabilities, including in-place leases and acquired above- and below-market leases, and if applicable, assumed debt, based on our estimate of their fair values.
We assess fair value based on estimated cash flow projections that utilize discount and capitalization rates as well as available market information. The fair value of the tangible assets of an acquired real estate investment considers the value of the real estate investment as if it were vacant. The estimated relative fair value of acquired in-place leases are the estimated costs to lease the real estate investment to the occupancy level at the date of acquisition. We evaluate the period over which we expect stabilized occupancy level to be achieved during the lease-up period. Above- and below-market leases are recorded as an asset or liability based upon the present value of the difference between the contractual amounts to be paid or received pursuant to the in-place leases, and our estimate of fair market rental rates for the corresponding in-place leases, over the remaining noncancellable term. Assumed debt, if any, is recorded at fair value based upon the present value of the expected future payments.
A change in any of the key assumptions can materially change not only the presentation of acquired real estate investments in our consolidated financial statements but also our reported results of operations.
32
RESULTS OF OPERATIONS
The following discussion is based on our Consolidated Financial Statements for the years ended December 31, 2020 and 2019. Refer to Item 7. "Results of Operations" in our Annual Report on Form 10-K for the year ended December 31, 2019 for a discussion of the results of operations for the year ended December 31, 2018 which is presented therein in the form of a year-to-year comparison to the year ended December 31, 2019. We believe that presentation of our consolidated financial information, without a breakdown by segment, will effectively present important information useful to our investors.
Net operating income (“NOI”), as presented in the comparative analysis, below is defined as total revenue less property operating expenses, real estate taxes, and third party management expenses. Property operating expenses that are included in determining NOI consist of costs that are necessary and allocable to our operating properties such as utilities, property-level salaries, repairs and maintenance, property insurance, management fees, and bad debt expense. General and administrative expenses that are not reflected in NOI primarily consist of corporate-level salaries, amortization of share awards, and professional fees that are incurred as part of corporate office management. NOI is a non-GAAP financial measure that we use internally to evaluate the operating performance of our real estate assets by segment, as presented in Note 19, ''Segment Information,” to our Consolidated Financial Statements, and of our business as a whole. We believe NOI provides useful information to investors regarding our financial condition and results of operations because it reflects only those income and expense items that are incurred at the property level. While NOI is a relevant and widely used measure of operating performance of real estate investment trusts, it does not represent cash flow from operations or net income as defined by GAAP and should not be considered as an alternative to those measures in evaluating our liquidity or operating performance. NOI does not reflect interest expenses, real estate impairments, depreciation and amortization costs, capital expenditures, and leasing costs. We believe that net income, as defined by GAAP, is the most appropriate earnings measure. See Note 19, ''Segment Information,” to our Consolidated Financial Statements for a reconciliation of NOI to our consolidated net income (loss) as defined by GAAP.
Comparison of the Year Ended December 31, 2020 to the Year Ended December 31, 2019
The following comparison for the year ended December 31, 2020 to the year ended December 31, 2019, makes reference to the effect of the following:
(a)“Same Store Property Portfolio,” which represents 74 properties containing an aggregate of approximately 12.8 million net rentable square feet, and represents properties that we owned for the twelve-month periods ended December 31, 2020 and 2019. The Same Store Property Portfolio includes properties acquired or placed in service on or prior to January 1, 2019 and owned through December 31, 2020, excluding properties classified as held for sale,
(b)“Total Portfolio,” which represents all properties owned by us during 2020 and 2019,
(c)"Recently Completed/Acquired Properties," which represents four properties placed into service or acquired on or subsequent to January 1, 2019,
(d)"Development/Redevelopment Properties," which represents four properties currently in development/redevelopment. A property is excluded from our Same Store Property Portfolio and moved into Development/Redevelopment in the period that we determine to proceed with development/redevelopment for a future development strategy, and
(e)"2019 and 2020 Dispositions," which represents 16 properties disposed of or contributed to unconsolidated joint ventures during 2019 and 2020.
33
Comparison of Year Ended December 31, 2020 to the Year Ended December 31, 2019
| Same Store Property Portfolio | Recently Completed/Acquired Properties | Development/Redevelopment Properties | Other (Eliminations) (a) | Total Portfolio | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| (dollars and square feet in millions except per share amounts) | 2020 | 2019 | $ Change | % Change | 2020 | 2019 | 2020 | 2019 | 2020 | 2019 | 2020 | 2019 | $ Change | % Change | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Revenue: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Rents | $ | 425.4 | $ | 428.4 | $ | (3.0) | (0.7) | % | $ | 17.0 | $ | 13.4 | $ | 0.3 | $ | 1.7 | $ | 70.8 | $ | 111.2 | $ | 513.5 | $ | 554.7 | $ | (41.2) | (7.4) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Third party management fees, labor reimbursement and leasing | — | — | — | — | % | — | — | — | — | 18.6 | 19.6 | 18.6 | 19.6 | (1.0) | (5.1) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other | 0.9 | 1.6 | (0.7) | (43.8) | % | — | — | — | 0.1 | 1.9 | 4.4 | 2.8 | 6.1 | (3.3) | (54.1) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total revenue | 426.3 | 430.0 | (3.7) | (0.9) | % | 17.0 | 13.4 | 0.3 | 1.8 | 91.3 | 135.2 | 534.9 | 580.4 | (45.5) | (7.8) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Property operating expenses | 107.6 | 113.3 | (5.7) | (5.0) | % | 4.1 | 3.5 | (0.6) | 0.4 | 21.1 | 37.2 | 132.2 | 154.4 | (22.2) | (14.4) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Real estate taxes | 51.0 | 48.1 | 2.9 | 6.0 | % | 2.1 | 1.5 | 0.9 | 0.5 | 9.0 | 12.1 | 63.0 | 62.2 | 0.8 | 1.3 | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Third party management expenses | — | — | — | — | % | — | — | — | — | 10.3 | 9.2 | 10.3 | 9.2 | 1.1 | 12.0 | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net operating income | 267.7 | 268.6 | (0.9) | (0.3) | % | 10.8 | 8.4 | — | 0.9 | 50.9 | 76.7 | 329.4 | 354.6 | (25.2) | (7.1) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Depreciation and amortization | 148.5 | 156.2 | (7.7) | (4.9) | % | 6.8 | 5.4 | 1.6 | 3.1 | 31.4 | 45.3 | 188.3 | 210.0 | (21.7) | (10.3) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| General & administrative expenses | — | — | — | — | % | — | — | — | — | 30.3 | 32.2 | 30.3 | 32.2 | (1.9) | (5.9) | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net gain on disposition of real estate | (289.5) | (0.4) | (289.1) | 72,275.0 | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net gain on sale of undepreciated real estate | (0.2) | (2.0) | 1.8 | (90.0) | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Operating income (loss) | $ | 119.2 | $ | 112.4 | $ | 6.8 | 6.0 | % | $ | 4.0 | $ | 3.0 | $ | (1.6) | $ | (2.2) | $ | (10.8) | $ | (0.8) | $ | 400.5 | $ | 114.8 | $ | 285.7 | 248.9 | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Number of properties | 74 | 74 | 4 | 4 | 82 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Square feet | 12.8 | 12.8 | 0.6 | 0.4 | 13.9 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Core Occupancy % (b) | 91.7 | % | 92.4 | % | 95.4 | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other Income (Expense): | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Interest income | 1.9 | 2.3 | (0.4) | (17.4) | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Interest expense | (73.9) | (81.5) | 7.6 | (9.3) | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Interest expense — Deferred financing costs | (2.9) | (2.8) | (0.1) | 3.6 | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Equity in loss of Real Estate Ventures | (18.6) | (9.9) | (8.7) | 87.9 | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net gain on real estate venture transactions | 0.1 | 11.6 | (11.5) | (99.1) | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Income tax benefit | 0.2 | — | 0.2 | — | % | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net income | $ | 307.3 | $ | 34.5 | $ | 272.8 | 790.7 | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net income attributable to Common Shareholders of Brandywine Realty Trust | $ | 1.77 | $ | 0.19 | $ | 1.58 | 831.6 | % | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
(a)Represents certain revenues and expenses at the corporate level as well as various intercompany costs that are eliminated in consolidation, third-party management fees, provisions for impairment, and changes in the accrued rent receivable allowance. Other/ (Eliminations) also includes properties sold and properties classified as held for sale.
(b)Pertains to Core Properties.
Total Revenue
Rents from the Total Portfolio decreased by $41.2 million from 2019 to 2020. The decrease in rents is primarily driven by the following:
•$34.7 million decrease related to the 2019 and 2020 Dispositions;
•$4.5 million decrease related to the October 2019 early termination of a large tenant at 1676 International Drive in the Metropolitan Washington D.C. segment;
•$3.5 million decrease related to reduced parking income due to the COVID-19 pandemic; and
•$1.4 million decrease related to properties placed into redevelopment.
The remaining change was primarily attributable to a $2.9 million increase in rents, which was driven by increases in occupancy at certain properties in the Philadelphia suburbs and Philadelphia CBD segments as well increases related to the Recently Completed/Acquired Properties for 2020 compared to 2019.
Third party management fees, labor reimbursement, and leasing income decreased $1.0 million from 2019 to 2020, primarily due to a decrease in construction management fees for a third party building that was completed in the first quarter of 2020.
34
Other income at our Total Portfolio decreased by $3.3 million from 2019 to 2020, which was primarily related to a decrease in income from the restaurant component of FMC Tower, as well as decreases in various fees from third parties due to the COVID-19 pandemic and associated store and building closures.
Property Operating Expenses
Property operating expenses decreased $22.2 million from 2019 to 2020 primarily driven by the following:
•$11.3 million decrease related to 2019 and 2020 Dispositions;
•$5.7 million decrease across our Same Store Property Portfolio, most significantly driven by the termination of a large tenant (and resulting vacancy) at 1676 International Drive in our Metropolitan Washington, D.C. segment and decreased use of properties by tenants during the COVID-19 pandemic; and,
•$3.0 million decrease at the hotel and restaurant components of FMC Tower due to the COVID-19 pandemic
The remaining $2.2 million decrease is related to miscellaneous decreases across our portfolio, including a decrease in payroll and salary expense related to operating the properties.
Depreciation and Amortization
Depreciation and amortization expense decreased by $21.7 million from 2019 to 2020 primarily driven by the following:
•$12.4 million decrease related to the 2019 and 2020 Dispositions;
•$7.7 million decrease related to our Same Store Property Portfolio, largely due to the completion of amortization of acquired in-place lease intangibles and the write-off of lease intangibles in connection with an early lease termination at 1676 International Drive in our Metropolitan Washington, D.C. segment in 2019; and
•$1.5 million decrease related to our Development/Redevelopment Properties primarily related to a property placed into redevelopment in our Philadelphia CBD segment.
General and Administrative Expenses
General and administrative expenses across our Total Portfolio decreased by $1.9 million from 2019 to 2020, primarily related to a $0.8 million decrease in payroll, bonus, stock compensation expense, and related benefits, $0.4 million decrease in travel and entertainment/meals, and $0.4 million decrease in professional fees.
Net Gain on Disposition of Real Estate
The $289.5 million gain on disposition of real estate for 2020 primarily resulted from the following sales transactions:
•$271.9 million related to the sale of a 30% preferred equity interest in One Commerce Square and Two Commerce Square, which resulted in deconsolidation of the properties and recognition of our investment in the properties at fair value;
•$15.2 million related to the sale of a 60% equity interest in a portfolio of twelve suburban office properties located in suburban Pennsylvania and Maryland, containing an aggregate of 1.1 million square feet ("Mid-Atlantic Office Portfolio"), which resulted in deconsolidation of the properties and recognition of our investment in the properties at fair value; and
•$2.3 million related to the disposition of 52 East Swedesford Road, an office property in our Pennsylvania Suburbs segment.
The $0.4 million gain on disposition of real estate for 2019 relates to the disposition of the office property at 1900 Gallows Road in Vienna, Virginia.
Net Gain on Sale of Undepreciated Real Estate
The gain of $0.2 million recognized during 2020 primarily resulted from the sale of a land parcel in Horsham, Pennsylvania.
The gain of $2.0 million recognized during 2019 relates to the sale of 9 Presidential Boulevard and from additional consideration received during 2019 related to the Libertyview disposition, which occurred in 2015.
35
Interest Expense
Interest expense decreased $7.6 million from 2019 to 2020 primarily driven by the following:
•$4.2 million decrease due to deconsolidation of One Commerce Square and Two Commerce Square and the associated mortgage loans on July 21, 2020;
•$2.0 million reduction to prior period accretions of interest expense on account of a contingent payment to an unaffiliated third party, a portion of which contingent payment ceased to be probable in the third quarter due to the purchase of the Two Logan Square first mortgage;
•$1.5 million decrease due to an increase in capitalized interest for 2020 compared to 2019.
•$0.3 million additional decrease in interest expense due to the acquisition of the first mortgage on Two Logan Square; and
•$4.5 million decrease primarily related to decreased borrowings on the line of credit and lower interest rates during 2020 compared to 2019.
These decreases were offset by a $4.9 million increase in interest expense related to our issuance of an additional $100.0 million in aggregate principal amount of each of our outstanding 4.100% Guaranteed Notes due 2024 and 4.550% Guaranteed Notes due 2029 during the fourth quarter of 2019.
Equity in Loss of Real Estate Ventures
Equity in loss of Real Estate Ventures increased $8.7 million from 2019 to 2020 is primarily related to:
•$9.2 million increase associated with our Commerce Square Venture formed on July 21, 2020;
•$1.8 million increase related to depreciation and interest expense being recorded at our 4040 Wilson Venture due to portions of the project being placed into service during 2020 as leases commenced;
•$0.5 million increase related to our MAP Venture due to lower revenues from lower occupancy rate during 2020 than 2019; and
•$0.3 million increase related to reduced parking income at our 1919 Market Street Venture due to the COVID-19 pandemic.
These increases were offset by a decrease in Equity in Loss of Real Estate Ventures of $2.8 million at our Allstate Venture related to a held for use impairment recorded during 2019, compared to no impairments in 2020.
Net Gain on Real Estate Venture Transactions
The $11.6 million net gain on Real Estate Venture transactions during 2019 primarily relates to the following:
•$8.0 million related to the disposition of the PJP II, PJP VI and PJP VII Ventures;
•$2.2 million related to the transfer of 3130 Fairview to the mortgage lender in full satisfaction of the outstanding mortgage loan by the BDN AI Venture; and
•$1.3 million related to proceeds received from the third-party owner of an adjacent property for the right to construct an “above-grade connection” with the building owned by the 51 N Street venture.
Net Income
Net income increased by $272.8 million from 2019 to 2020 as a result of the factors described above.
Net Income per Common Share – fully diluted
Net income per share was $1.77 during 2020 as compared to net income per share of $0.19 during 2019 as a result of the factors described above.
36
LIQUIDITY AND CAPITAL RESOURCES
General
Our principal liquidity funding needs for the next twelve months are as follows:
•normal recurring expenses;
•capital expenditures, including capital and tenant improvements and leasing costs;
•debt service and principal repayment obligations;
•current development and redevelopment costs;
•commitments to unconsolidated real estate ventures;
•distributions to shareholders to maintain our REIT status;
•possible acquisitions of properties, either directly or indirectly through the acquisition of equity interest therein; and
•possible common share repurchases.
We expect to satisfy these needs using one or more of the following:
•cash flows from operations;
•distributions of cash from our unconsolidated real estate ventures;
•cash and cash equivalent balances;
•availability under our unsecured Credit Facility;
•secured construction loans and long-term unsecured indebtedness;
•sales of real estate or contributions of interests in real estate to joint ventures; and
•issuances of Parent Company equity securities and/or units of the Operating Partnership.
As of December 31, 2020, the Parent Company owned a 99.4% interest in the Operating Partnership. The remaining interest of approximately 0.6% pertains to common limited partnership interests owned by non-affiliated investors who contributed property to the Operating Partnership in exchange for their interests. As the sole general partner of the Operating Partnership, the Parent Company has full and complete responsibility for the Operating Partnership’s day-to-day operations and management. The Parent Company’s source of funding for its dividend payments and other obligations is the distributions it receives from the Operating Partnership.
As summarized above, we believe that our liquidity needs will be satisfied through available cash balances and cash flows from operations, financing activities and real estate sales. Rental revenue and other income from operations are our principal sources of cash to pay operating expenses, debt service, recurring capital expenditures and the minimum distributions required to maintain our REIT qualification. We seek to increase cash flows from our properties by maintaining quality standards for our properties that promote high occupancy rates and permit increases in rental rates while reducing tenant turnover and controlling operating expenses. Our revenue also includes third-party fees generated by our property management, leasing, development and construction businesses. We believe that our revenue, together with proceeds from property sales and debt financings, will continue to provide funds for our short-term liquidity needs. However, material changes in our operating or financing activities may adversely affect our net cash flows. With uncertain economic conditions, vacancy rates may increase, effective rental rates on new and renewed leases may decrease and tenant installation costs, including concessions, may increase in most or all of our markets during 2021 and possibly beyond. As a result, our revenues and cash flows could be insufficient to cover operating expenses, including increased tenant installation costs, pay debt service or make distributions to shareholders over the short-term. If this situation were to occur, we expect that we would finance cash deficits through borrowings under our unsecured revolving credit facility and other sources of debt and equity financings. In addition, a material adverse change in cash provided by operations could adversely affect our compliance with financial performance covenants under our unsecured revolving credit facility, including unsecured term loans and unsecured notes. As of December 31, 2020, we were in compliance with all of our debt covenants and requirement obligations.
In addition, we are continuing to monitor the ongoing COVID-19 pandemic and the related economic impacts, market volatility, and business disruption, and its impact on our tenants. The severity and duration of the pandemic and its impact on our operations and liquidity is uncertain as this continues to evolve globally. However, if the outbreak continues, there will likely be continued negative economic impacts, market volatility, and business disruption which could negatively impact our tenants’ ability to pay rent, our ability to lease vacant space, and our ability to complete development and redevelopment projects, and these consequences, in turn, could materially impact our results of operations. We collected 98.3% of total cash-based rent due from tenants during the fourth quarter of 2020. In addition, approximately 97.9% of January 2021 total cash-based rent has been received from our tenants to date, which reflects a 98.7% collection rate from our office tenants.
37
We have granted rent relief requests primarily to our co-working and retail tenants. The relief requests have substantially all been in the form of rent deferral for varying lengths of time, but were/are primarily being repaid in 2020 and 2021. For those tenants we believe require rent relief, we have granted deferrals and, in some instances, rent abatements while receiving extended lease terms through favorable lease extensions. To date, we have provided $4.1 million of rent relief to 62 tenants approximating 0.8 million square feet. The deferrals represent approximately 0.8% of annualized revenue. We continue to assess the merits of rent deferral requests and can give no assurances on the outcomes of these ongoing negotiations, the amount and nature of the rent relief packages and ultimate recovery of the amounts deferred.
See Note 2, ''Summary of Significant Accounting Policies," to our Consolidated Financial Statements for further information related to our accounting policies for rent concessions. Pursuant to our accounting elections, rental revenue continued to be recognized for tenants subject to deferral agreements, as long as such agreements did not result in a substantial increase in our rights as the lessor. As a result, rent deferrals did not have a material impact on revenues for the year ended December 31, 2020.
We use multiple financing sources to fund our long-term capital needs. When needed, we use borrowings under our unsecured revolving credit facility for general business purposes, including to meet debt maturities and to fund distributions to shareholders as well as development and acquisition costs and other expenses. In light of the volatility in financial markets and economic uncertainties, it is possible, that one or more lenders under our unsecured revolving credit facility could fail to fund a borrowing request. Such an event could adversely affect our ability to access funds from our unsecured revolving credit facility when needed to fund distributions or pay expenses.
Our ability to incur additional debt is dependent upon a number of factors, including our credit ratings, the value of our unencumbered assets, our degree of leverage and borrowing restrictions imposed by our lenders. If one or more rating agencies were to downgrade our unsecured credit rating, our access to the unsecured debt market would be more limited and the interest rate under our unsecured revolving credit facility and unsecured term loans would increase.
The Parent Company unconditionally guarantees the Operating Partnership’s unsecured obligations, which, as of December 31, 2020, amounted to $1,828.6 million. The Company did not have any secured debt obligations as of December 31, 2020.
Capital Markets
The Parent Company issues equity from time to time, the proceeds of which it contributes to the Operating Partnership in exchange for additional interests in the Operating Partnership, and guarantees debt obligations of the Operating Partnership. The Parent Company’s ability to sell common shares and preferred shares is dependent on, among other things, general market conditions for REITs, market perceptions about the Company as a whole, and the current trading price of the Parent Company’s shares. The Parent Company maintains a shelf registration statement that covers the offering and sale of common shares, preferred shares, depositary shares, warrants and unsecured debt securities. Subject to our ongoing compliance with securities laws, and if warranted by market conditions, we may offer and sell equity and debt securities from time to time under the shelf registration statement or in transactions exempt from registration.
See Note 13, ''Beneficiaries' Equity of the Parent Company,” to our Consolidated Financial Statements for further information related our former continuous offering program that we have generally maintained as well as information related to our share repurchase program during the year ended December 31, 2020. We expect to fund any additional share repurchases with a combination of available cash balances and availability under our unsecured revolving credit facility. The timing and amounts of any repurchases will depend on a variety of factors, including market conditions, regulatory requirements, share prices, capital availability and other factors as determined by our management team. The repurchase program does not require the purchase of any minimum number of shares and may be suspended or discontinued at any time without notice.
Capital Recycling
The Operating Partnership also considers net sales of selected properties and recapitalization of unconsolidated real estate ventures as additional sources of managing its liquidity. During 2020, we sold 14.0 acres of land as well as one office property for net cash proceeds of $3.5 and $17.5 million, respectively. In addition, we sold a 30% preferred equity interest in One Commerce Square and Two Commerce Square for net cash proceeds of $100.8 million and a 60% equity interest in the Mid-Atlantic Office Portfolio for net cash proceeds of $155.8 million.
38
As of December 31, 2020, we had $46.3 million of cash and cash equivalents and $598.4 million of available borrowings under our Credit Facility, net of $1.6 million in letters of credit outstanding. Based on the foregoing, as well as cash flows from operations net of dividend requirements, we believe we have sufficient capital to fund our remaining capital requirements on existing development and redevelopment projects and pursue additional attractive investment opportunities. We expect that our primary uses of capital during 2021 will be to fund our current development and redevelopment projects.
Cash Flows
The following discussion of our cash flows is based on the consolidated statements of cash flows and is not meant to be a comprehensive discussion of the changes in our cash flows for the years presented.
As of December 31, 2020 and 2019, we maintained cash and cash equivalents and restricted cash of $47.1 million and $91.2 million, respectively. The following are the changes in cash flow from our activities for the years ended December 31, 2020 and 2019 (in thousands):
| Year Ended December 31, | ||||||||||||||||||||
| Activity | 2020 | 2019 | (Decrease) Increase | |||||||||||||||||
| Operating | $ | 225,806 | $ | 234,230 | $ | (8,424) | ||||||||||||||
| Investing | 18,290 | (130,659) | 148,949 | |||||||||||||||||
| Financing | (288,189) | (35,612) | (252,577) | |||||||||||||||||
| Net cash flows | $ | (44,093) | $ | 67,959 | $ | (112,052) | ||||||||||||||
Our principal source of cash flows is from the operation of our Properties. Our Properties provide a relatively consistent stream of cash flows that provide us with the resources to fund operating expenses, debt service and quarterly dividends.
Cash is used in investing activities to fund acquisitions, development, or redevelopment projects and recurring and nonrecurring capital expenditures. We selectively invest in new projects that enable us to take advantage of our development, leasing, financing, and property management skills and invest in existing buildings that meet our investment criteria. During the year ended December 31, 2020, when compared to the year ended December 31, 2019, the change in investing cash flows was due to the following activities (in thousands):
| (Decrease) Increase | ||||||||
| Acquisitions of real estate | $ | (39,769) | ||||||
| Capital expenditures and capitalized interest | 38,046 | |||||||
| Leasing costs/acquisition deposits | 4,795 | |||||||
| Joint venture investments | (10,196) | |||||||
| Distributions from joint ventures | (26,905) | |||||||
| Proceeds from the sale of properties | 236,319 | |||||||
| Debt and preferred equity and other investments | (53,341) | |||||||
| Increase in net cash provided by investing activities | $ | 148,949 | ||||||
39
We generally fund our investment activity through the sale of real estate, property-level financing, credit facilities, senior unsecured notes, and construction loans. From time to time, we may issue common or preferred shares of beneficial interest, or the Operating Partnership may issue common or preferred units of limited partnership interest. During the year ended December 31, 2020, when compared to the year ended December 31, 2019, the change in financing cash flows was due to the following activities (in thousands):
| (Decrease) Increase | ||||||||
| Proceeds from debt obligations | $ | (246,873) | ||||||
| Repayments of debt obligations | 35,602 | |||||||
| Proceeds from the exercise of stock options | (3,724) | |||||||
| Repurchase and retirement of common shares | (42,718) | |||||||
| Other financing activities | 2,146 | |||||||
| Dividends and distributions paid | 2,990 | |||||||
| Increase in net cash used in financing activities | $ | (252,577) | ||||||
Capitalization
Indebtedness
The table below summarizes indebtedness under our mortgage notes payable and our unsecured debt at December 31, 2020 and December 31, 2019:
| December 31, 2020 | December 31, 2019 | ||||||||||
| (dollars in thousands) | |||||||||||
Balance: (a) | |||||||||||
| Fixed rate | $ | 1,775,774 | $ | 2,091,211 | |||||||
| Variable rate - unhedged | 52,836 | 52,836 | |||||||||
| Total | $ | 1,828,610 | $ | 2,144,047 | |||||||
| Percent of Total Debt: | |||||||||||
| Fixed rate | 97.1 | % | 97.5 | % | |||||||
| Variable rate - unhedged | 2.9 | % | 2.5 | % | |||||||
| Total | 100.0 | % | 100.0 | % | |||||||
| Weighted-average interest rate at period end: | |||||||||||
| Fixed rate | 3.8 | % | 3.9 | % | |||||||
| Variable rate - unhedged | 1.5 | % | 3.2 | % | |||||||
| Total | 3.8 | % | 3.8 | % | |||||||
| Weighted-average maturity in years: | |||||||||||
| Fixed rate | 5.2 | 5.6 | |||||||||
| Variable rate - unhedged | 14.6 | 15.6 | |||||||||
| Total | 5.4 | 5.9 | |||||||||
(a)Consists of unpaid principal and does not include premium/discount or deferred financing costs.
40
Scheduled principal payments and related weighted average annual effective interest rates for our debt as of December 31, 2020 were as follows (dollars in thousands):
| Period | Principal maturities | Weighted Average Interest Rate of Maturing Debt | ||||||||||||
| 2021 | $ | — | — | % | ||||||||||
| 2022 | 250,000 | 2.87 | % | |||||||||||
| 2023 | 350,000 | 3.87 | % | |||||||||||
| 2024 | 350,000 | 3.78 | % | |||||||||||
| 2025 | — | — | % | |||||||||||
| 2026 | — | — | % | |||||||||||
| 2027 | 450,000 | 4.03 | % | |||||||||||
| 2028 | — | — | % | |||||||||||
| 2029 | 350,000 | 4.30 | % | |||||||||||
| 2030 | — | — | % | |||||||||||
| Thereafter | 78,610 | 2.08 | % | |||||||||||
| Totals | $ | 1,828,610 | 3.76 | % | ||||||||||
For information related to our debt obligations and their covenants see Note 9, ''Debt Obligations,” to our Consolidated Financial Statements.
Unsecured Debt
The Operating Partnership is the issuer of our unsecured notes which are fully and unconditionally guaranteed by the Parent Company. The indenture under which the Operating Partnership issued its unsecured notes contains financial covenants, including (i) a leverage ratio not to exceed 60%, (ii) a secured debt leverage ratio not to exceed 40%, (iii) a debt service coverage ratio of greater than 1.5 to 1.0 and (iv) an unencumbered asset value of not less than 150% of unsecured debt. The Operating Partnership was in compliance with all covenants as of December 31, 2020 and 2019.
The charter documents of the Parent Company and Operating Partnership do not limit the amount or form of indebtedness that the Operating Partnership may incur, and its policies on debt incurrence are solely within the discretion of the Parent Company’s Board of Trustees, subject to the financial covenants in the Credit Facility, indenture and other credit agreements.
Equity
In order to maintain its qualification as a REIT, the Parent Company is required to, among other things, pay dividends to its shareholders of at least 90% of its REIT taxable income. During the year ended December 31, 2020, the Parent Company paid dividends in excess of the 90% criterion. See Note 13, ''Beneficiaries' Equity of the Parent Company,” to our Consolidated Financial Statements for further information related to our dividends declared for the fourth quarter, information related to our former continuous offering program, and information related to our share repurchase program during the year ended December 31, 2020.
Contractual Obligations
We provide customary guarantees for certain development projects of our unconsolidated real estate ventures. See Note 20, ''Commitments and Contingencies,” to our Consolidated Financial Statements for further details on payment guarantees provided on the behalf of real estate ventures.
In connection with the Schuylkill Yards Project, we entered into a neighborhood engagement program and, as of December 31, 2020, had $7.7 million of future contractual obligations. We are also committed to make additional contributions under the program. We estimate that, as of December 31, 2020, these additional contributions, which are not fixed under the terms of agreement, will be $2.6 million. See Note 20, ''Commitments and Contingencies,” to our Consolidated Financial Statements for further information.
41
In connection with the formation of the Commerce Square Venture, we committed to investing an additional $20.0 million of preferred equity in the properties on a pari passu basis with our joint venture partner.
As part of our September 2004 acquisition of a portfolio of properties from The Rubenstein Company (which the we refer to as the “TRC acquisition”), we acquired our interest in Two Logan Square, a 708,844 square foot office building in Philadelphia, Pennsylvania primarily through ownership of a second and third mortgage secured by this property. This property is consolidated, as the borrower is a VIE and we, through our ownership of the second and third mortgages, are the primary beneficiary. On October 21, 2020, we also acquired the $79.8 million first mortgage on the property from the third-party mortgage lender pursuant to an agreement with certain of the former owners. Under the agreement, we have agreed to not take title to Two Logan until the earlier of June 2026 or the occurrence of certain events related to the ownership interests of certain former owners. If we were to sell the restricted property before the expiration of the restricted period in a non-exempt transaction, we may be required to make significant payments to certain of the former owners of Two Logan Square on account of tax liabilities attributed to them. Additionally, we will be required to pay these certain former owners an amount estimated at approximately $0.9 million to redeem their residual interest in the fee owner of this property. The $0.9 million payment is included within "Other liabilities" on the consolidated balance sheets.
Similarly, as part of our 2013 acquisition of substantially all of the equity interests in the partnerships that own One and Two Commerce Square, we agreed, for the benefit of affiliates of the holder of the 1% residual ownership interest in these properties, to not sell these two properties in certain taxable transactions prior to October 20, 2021 without the holder’s consent. The Commerce Square Venture Transaction did not violate such covenant.
As part of our acquisition of properties, from time to time in tax-deferred transactions, the Company has agreed to provide certain of the prior owners of the acquired properties the right to guarantee the Company’s indebtedness. If the Company were to seek to repay the indebtedness guaranteed by the prior owner before the expiration of the applicable agreement, the Company would be required to provide the prior owner an opportunity to guaranty qualifying replacement debt. These debt maintenance agreements may limit the Company’s ability to refinance indebtedness on terms favorable to the Company. As part of our 2013 acquisition of substantially all of the equity interests in the partnerships that own One and Two Commerce Square, the Company agreed, for the benefit of affiliates of the holder of the 1% residual ownership interest in these properties, to maintain qualifying mortgage debt through October 20, 2021, in the amounts of not less than $125.0 million on One Commerce Square and $100.0 million on Two Commerce Square. Similarly, the Company agreed with other contributors of assets that obligate it to maintain debt available for them to guaranty.
We invest in properties and regularly incur capital expenditures in the ordinary course of business to maintain the properties. We believe that such expenditures enhance our competitiveness. We also enter into construction, utility and service contracts in the ordinary course of its business which may extend beyond one year. These contracts typically provide for cancellation with insignificant or no cancellation penalties.
In addition, during construction undertaken by real estate ventures we have provided, and expect to continue to provide, cost overrun, and completion guarantees, with rights of contribution among partners in ventures, as well as customary environmental indemnities and guarantees of customary exceptions to nonrecourse provisions in loan agreements.
Interest Rate Risk and Sensitivity Analysis
The analysis below presents the sensitivity of the market value of the Operating Partnership’s financial instruments to selected changes in market rates. The range of changes chosen reflects its view of changes which are reasonably possible over a one-year period. Market values are the present value of projected future cash flows based on the market rates chosen.
Our financial instruments consist of both fixed and variable rate debt. As of December 31, 2020, our consolidated debt consisted of unsecured notes with an outstanding principal balance of $1,500.0 million, all of which are fixed rate borrowings. We also have variable rate debt consisting of trust preferred securities with an outstanding principal balance of $78.6 million, a $600.0 million Credit Facility with no amounts borrowed and an unsecured term loan with an outstanding principal balance of $250.0 million, all of which have been swapped to fixed rates, except for two trust preferred securities with an outstanding principal balance of $52.8 million and the Credit Facility. All financial instruments were entered into for other than trading purposes and the net market value of these financial instruments is referred to as the net financial position. Changes in interest rates have different impacts on the fixed and variable rate portions of our debt portfolio. A change in interest rates on the fixed portion of the debt portfolio impacts the net financial instrument position, but has no impact on
42
interest incurred or cash flows. A change in interest rates on the variable portion of the debt portfolio impacts the interest incurred and cash flows, but does not impact the net financial instrument position.
As of December 31, 2020, based on prevailing interest rates and credit spreads, the fair value of our unsecured notes was $1,607.3 million. For sensitivity purposes, a 100 basis point change in the discount rate equates to a change in the total fair value of our debt of approximately $16.1 million at December 31, 2020.
From time to time or as the need arises, we use derivative instruments to manage interest rate risk exposures and not for speculative purposes. The total outstanding principal balance of our variable rate debt was approximately $328.6 million as of both December 31, 2020 and December 31, 2019. The total fair value of our variable rate debt was approximately $308.8 million and $309.9 million at December 31, 2020 and December 31, 2019, respectively. For sensitivity purposes, if market rates of interest increase by 100 basis points the fair value of our variable rate debt would decrease by approximately $11.5 million on December 31, 2020. If market rates of interest decrease by 100 basis points, the fair value of our outstanding variable rate debt would increase by approximately $12.6 million.
These amounts were determined solely by considering the impact of hypothetical interest rates on our financial instruments. Due to the uncertainty of specific actions it may undertake to minimize possible effects of market interest rate increases, this analysis assumes no changes in our financial structure.
Funds from Operations (FFO)
Pursuant to the revised definition of FFO adopted by the Board of Governors of the National Association of Real Estate Investment Trusts (“NAREIT”), we calculate FFO by adjusting net income/(loss) attributable to common unit holders (computed in accordance with GAAP) for gains (or losses) from sales of properties, impairment losses on depreciable consolidated real estate, impairment losses on investments in unconsolidated real estate ventures driven by a measurable decrease in the fair value of depreciable real estate held by the unconsolidated Real Estate Ventures, real estate related depreciation and amortization, and after similar adjustments for unconsolidated Real Estate Ventures. FFO is a non-GAAP financial measure. We believe that the use of FFO combined with the required GAAP presentations has been beneficial in improving the understanding of operating results of REITs among the investing public and making comparisons of REITs’ operating results more meaningful. We consider FFO to be a useful measure for reviewing comparative operating and financial performance because, by excluding property impairments, gains or losses related to sales of previously depreciated operating real estate assets and real estate depreciation and amortization, FFO can help the investing public compare the operating performance of a company’s real estate between periods or as compared to other companies. Our computation of FFO may not be comparable to FFO reported by other REITs or real estate companies that do not define the term in accordance with the current NAREIT definition or that interpret the current NAREIT definition differently.
We consider net income, as defined by U.S. GAAP, to be the most comparable earnings measure to FFO. While FFO and FFO per unit are relevant and widely used measures of operating performance of REITs, FFO does not represent cash flow from operations or net income as defined by U.S. GAAP and should not be considered as alternatives to those measures in evaluating our liquidity or operating performance. We believe that to further understand our performance, FFO should be compared with our reported net income/ (loss) attributable to common unit holders and considered in addition to cash flows in accordance with GAAP, as presented in our Consolidated Financial Statements.
43
The following table presents a reconciliation of net income attributable to common unitholders to FFO for the years ended December 31, 2020 and 2019:
| Year Ended December 31, | ||||||||||||||
| 2020 | 2019 | |||||||||||||
| (amounts in thousands, except share information) | ||||||||||||||
| Net income attributable to common unitholders | $ | 306,896 | $ | 34,064 | ||||||||||
| Add (deduct): | ||||||||||||||
| Amount allocated to unvested restricted unitholders | 410 | 396 | ||||||||||||
| Net gain on real estate venture transactions | (75) | (10,363) | ||||||||||||
| Net gain on disposition of real estate | (289,461) | (356) | ||||||||||||
| Company's share of impairment of an unconsolidated real estate venture | — | 2,832 | ||||||||||||
| Depreciation and amortization: | ||||||||||||||
| Real property | 143,877 | 149,600 | ||||||||||||
| Leasing costs including acquired intangibles | 42,390 | 58,493 | ||||||||||||
| Company’s share of unconsolidated real estate ventures | 37,291 | 19,657 | ||||||||||||
| Partners’ share of consolidated real estate ventures | (129) | (226) | ||||||||||||
| Funds from operations | $ | 241,199 | $ | 254,097 | ||||||||||
| Funds from operations allocable to unvested restricted shareholders | (705) | (750) | ||||||||||||
| Funds from operations available to common share and unit holders (FFO) | $ | 240,494 | $ | 253,347 | ||||||||||
| Weighted-average shares/units outstanding — basic (a) | 172,907,713 | 177,114,932 | ||||||||||||
| Weighted-average shares/units outstanding — fully diluted (a) | 173,298,710 | 177,668,804 | ||||||||||||
(a)Includes common shares and partnership units outstanding through the year ended December 31, 2020 and December 31, 2019, respectively.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
See discussion in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” included in Item 7 herein.
Item 8. Financial Statements and Supplementary Data
The financial statements and supplementary financial data of the Parent Company and the Operating Partnership and the reports thereon of PricewaterhouseCoopers LLP, an independent registered public accounting firm, with respect thereto, are listed under Items 15(a) and 15(b) and filed as part of this report. See Item 15., “Exhibits and Financial Statement Schedules.”
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Controls and Procedures (Parent Company)
Conclusion Regarding the Effectiveness of Disclosure Controls and Procedures
Under the supervision and with the participation of the Parent Company’s management, including its principal executive officer and principal financial officer, the Parent Company’s management conducted an evaluation of its disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Based on this evaluation, the principal executive officer and the principal financial officer of the Parent Company concluded that the Parent Company’s disclosure controls and procedures were effective as of the end of the period covered by this annual report.
44
Management’s Report on Internal Control Over Financial Reporting
The management of the Parent Company is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f).
Under the supervision and with the participation of the Parent Company’s management, including its principal executive officer and principal financial officer, the Parent Company’s management conducted an evaluation of the effectiveness of the Parent Company’s internal control over financial reporting based on the framework in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013. Based on this evaluation under the framework in Internal Control — Integrated Framework, the Parent Company’s management concluded that the Parent Company’s internal control over financial reporting was effective as of December 31, 2020.
The effectiveness of the Parent Company’s internal control over financial reporting as of December 31, 2020 has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in its report that is included herein.
Changes in Internal Control over Financial Reporting
There have not been any changes in the Parent Company’s internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the fourth fiscal quarter to which this report relates that have materially affected, or are reasonably likely to materially affect, the Parent Company’s internal control over financial reporting.
Controls and Procedures (Operating Partnership)
Conclusion Regarding the Effectiveness of Disclosure Controls and Procedures
Under the supervision and with the participation of the Operating Partnership’s management, including its principal executive officer and principal financial officer, the Operating Partnership’s management conducted an evaluation of its disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under the Exchange Act. Based on this evaluation, the principal executive officer and the principal financial officer of Operating Partnership concluded that the Operating Partnership’s disclosure controls and procedures were effective as of the end of the period covered by this annual report.
Management’s Report on Internal Control Over Financial Reporting
The management of the Operating Partnership is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f).
Under the supervision and with the participation of the Operating Partnership’s management, including its principal executive officer and principal financial officer, the Operating Partnership’s management conducted an evaluation of the effectiveness of the Operating Partnership’s internal control over financial reporting based on the framework in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013. Based on this evaluation under the framework in Internal Control — Integrated Framework, the Operating Partnership’s management concluded that the Operating Partnership’s internal control over financial reporting was effective as of December 31, 2020.
The effectiveness of the Operating Partnership’s internal control over financial reporting as of December 31, 2020 has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in its report that is included herein.
Changes in Internal Control over Financial Reporting.
There have not been any changes in the Operating Partnership’s internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the fourth fiscal quarter to which this report relates that have materially affected, or are reasonably likely to materially affect, the Operating Partnership’s internal control over financial reporting.
45
Item 9B. Other Information
None.
46
PART III
Item 10. Directors, Executive Officers and Corporate Governance
Incorporated herein by reference to the Company’s definitive proxy statement to be filed with respect to its 2021 Annual Meeting of Shareholders.
Item 11. Executive Compensation
Incorporated herein by reference to the Company’s definitive proxy statement to be filed with respect to its 2021 Annual Meeting of Shareholders.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters
Incorporated herein by reference to the Company’s definitive proxy statement to be filed with respect to its 2021 Annual Meeting of Shareholders.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Incorporated herein by reference to the Company’s definitive proxy statement to be filed with respect to its 2021 Annual Meeting of Shareholders.
Item 14. Principal Accountant Fees and Services
Incorporated herein by reference to the Company’s definitive proxy statement to be filed with respect to its 2021 Annual Meeting of Shareholders.
PART IV
Item 15. Exhibits and Financial Statement Schedules.
(a)Financial Statements and Schedules of Brandywine Realty Trust
(b)Financial Statements and Schedules of Brandywine Operating Partnership
The financial statements and schedules of the Parent Company and the Operating Partnership listed below are filed as part of this report on the pages indicated.
47
Index to Financial Statements and Schedules
| Page | |||||
F-1 | |||||
F-4 | |||||
| Financial Statements of Brandywine Realty Trust | |||||
F-7 | |||||
F-8 | |||||
F-9 | |||||
F-10 | |||||
F-11 | |||||
| Financial Statements of Brandywine Operating Partnership, L.P. | |||||
F-13 | |||||
F-14 | |||||
F-15 | |||||
F-16 | |||||
F-17 | |||||
F-19 | |||||
F-62 | |||||
F-63 | |||||
(c) Exhibits
48
| Exhibits Nos. | Description | |||||||
| 3.1.1 | ||||||||
| 3.1.2 | ||||||||
| 3.1.3 | ||||||||
| 3.2.1 | ||||||||
| 3.2.2 | ||||||||
| 3.2.3 | ||||||||
| 3.2.4 | ||||||||
| 3.2.5 | ||||||||
| 3.2.6 | ||||||||
| 3.2.7 | ||||||||
| 3.2.8 | ||||||||
| 3.2.9 | ||||||||
| 3.2.10 | ||||||||
| 3.2.11 | ||||||||
| 3.2.12 | ||||||||
| 3.2.13 | ||||||||
| 3.2.14 | ||||||||
| 3.2.15 | ||||||||
| 3.2.16 | ||||||||
49
| 3.2.17 | ||||||||
| 3.2.18 | ||||||||
| 3.2.19 | ||||||||
| 3.3 | ||||||||
| 4.1.1 | ||||||||
| 4.1.2 | ||||||||
| 4.1.3 | ||||||||
| 4.1.4 | ||||||||
| 4.1.5 | ||||||||
| 4.2.1 | ||||||||
| 4.2.2 | ||||||||
| 4.3 | ||||||||
| 4.4 | ||||||||
| 4.5 | ||||||||
| 4.6 | ||||||||
| 4.7 | ||||||||
| 10.1 | ||||||||
| 10.2 | ||||||||
| 10.3 | ||||||||
| 10.4 | ||||||||
| 10.5 | ||||||||
50
| 10.6 | ||||||||
| 10.7 | ||||||||
| 10.8 | ||||||||
| 10.9 | ||||||||
| 10.10 | ||||||||
| 10.11 | ||||||||
| 10.12 | ||||||||
| 10.13 | ||||||||
| 10.14 | ||||||||
| 10.15 | ||||||||
| 10.16 | ||||||||
| 10.17 | ||||||||
| 10.18 | ||||||||
| 10.19 | ||||||||
| 10.2 | ||||||||
| 10.21 | ||||||||
| 10.22 | ||||||||
| 10.23 | ||||||||
| 10.24 | ||||||||
| 14.1 | ||||||||
| 21 | ||||||||
| 23.1 | ||||||||
| 23.2 | ||||||||
| 31.1 | ||||||||
| 31.2 | ||||||||
51
| 31.3 | ||||||||
| 31.4 | ||||||||
| 32.1 | ||||||||
| 32.2 | ||||||||
| 32.3 | ||||||||
| 32.4 | ||||||||
| 99.1 | ||||||||
| 101.1 | The following materials from the Annual Reports on Form 10-K of Brandywine Realty Trust and Brandywine Operating Partnership, L.P. for the year ended December 31, 2020 formatted in XBRL (eXtensible Business Reporting Language): (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations, (iii) the Consolidated Statement of Equity, (iv) the Consolidated Statements of Cash Flows, and (v) Notes to Consolidated Financial Statements, detailed tagged and filed herewith. | |||||||
| 104 | Cover Page Interactive Data File - the cover page interactive data file does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. | |||||||
| ** | Management contract or compensatory plan or arrangement | ||||
(d)Financial Statement Schedule: See Item 15 (a) and (b) above
52
Item 16. Form 10-K Summary.
None.
53
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BRANDYWINE REALTY TRUST | |||||
| By: | /s/ Gerard H. Sweeney | ||||
| Gerard H. Sweeney | |||||
| President and Chief Executive Officer | |||||
Date: February 24, 2021
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature | Title | Date | ||||||||||||
/s/ Michael J. Joyce | Chairman of the Board and Trustee | February 24, 2021 | ||||||||||||
| Michael J. Joyce | ||||||||||||||
/s/ Gerard H. Sweeney | President, Chief Executive Officer and Trustee (Principal Executive Officer) | February 24, 2021 | ||||||||||||
| Gerard H. Sweeney | ||||||||||||||
/s/ Thomas E. Wirth | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | February 24, 2021 | ||||||||||||
| Thomas E. Wirth | ||||||||||||||
/s/ Daniel Palazzo | Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 24, 2021 | ||||||||||||
| Daniel Palazzo | ||||||||||||||
| /s/ Wyche Fowler | Trustee | February 24, 2021 | ||||||||||||
| Wyche Fowler | ||||||||||||||
| /s/ James C. Diggs | Trustee | February 24, 2021 | ||||||||||||
| James C. Diggs | ||||||||||||||
| /s/ Charles P. Pizzi | Trustee | February 24, 2021 | ||||||||||||
| Charles P. Pizzi | ||||||||||||||
| /s/ Terri A. Herubin | Trustee | February 24, 2021 | ||||||||||||
| Terri A. Herubin | ||||||||||||||
| /s/ H. Richard Haverstick, Jr. | Trustee | February 24, 2021 | ||||||||||||
| H. Richard Haverstick, Jr. | ||||||||||||||
54
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BRANDYWINE OPERATING PARTNERSHIP, L.P. | |||||
| By: | Brandywine Realty Trust, its General Partner | ||||
| By: | /s/ Gerard H. Sweeney | ||||
| Gerard H. Sweeney | |||||
| President and Chief Executive Officer | |||||
Date: February 24, 2021
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| Signature | Title | Date | ||||||||||||
/s/ Michael J. Joyce | Chairman of the Board and Trustee | February 24, 2021 | ||||||||||||
| Michael J. Joyce | ||||||||||||||
/s/ Gerard H. Sweeney | President, Chief Executive Officer and Trustee (Principal Executive Officer) | February 24, 2021 | ||||||||||||
| Gerard H. Sweeney | ||||||||||||||
/s/ Thomas E. Wirth | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | February 24, 2021 | ||||||||||||
| Thomas E. Wirth | ||||||||||||||
/s/ Daniel Palazzo | Vice President and Chief Accounting Officer (Principal Accounting Officer) | February 24, 2021 | ||||||||||||
| Daniel Palazzo | ||||||||||||||
| /s/ Wyche Fowler | Trustee | February 24, 2021 | ||||||||||||
| Wyche Fowler | ||||||||||||||
| /s/ James Diggs | Trustee | February 24, 2021 | ||||||||||||
| James Diggs | ||||||||||||||
| /s/ Charles P. Pizzi | Trustee | February 24, 2021 | ||||||||||||
| Charles P. Pizzi | ||||||||||||||
| /s/ Terri A. Herubin | Trustee | February 24, 2021 | ||||||||||||
| Terri A. Herubin | ||||||||||||||
| /s/ H. Richard Haverstick, Jr. | Trustee | February 24, 2021 | ||||||||||||
| H. Richard Haverstick, Jr. | ||||||||||||||
55
Report of Independent Registered Public Accounting Firm
To the Board of Trustees and Shareholders of Brandywine Realty Trust
Opinions on the Financial Statements and Internal Control over Financial Reporting
We have audited the accompanying consolidated balance sheets of Brandywine Realty Trust and its subsidiaries (the “Company”) as of December 31, 2020 and 2019, and the related consolidated statements of operations, of comprehensive income, of beneficiaries' equity and of cash flows for each of the three years in the period ended December 31, 2020, including the related notes and financial statement schedules listed in the index appearing under Item 15(a) (collectively referred to as the “consolidated financial statements”). We also have audited the Company's internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2020 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.
Basis for Opinions
The Company's management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Report on Internal Control over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on the Company’s consolidated financial statements and on the Company's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
F-1
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Impairment Assessments of Real Estate Investments and Investments in Unconsolidated Real Estate Ventures
As described in Notes 2, 3 and 4 to the consolidated financial statements, the Company’s gross carrying value of operating real estate investments was $3,474 million and its investments in unconsolidated real estate ventures was $401 million as of December 31, 2020. During 2020, the Company did not recognize an impairment related to real estate investments or an other than temporary impairment related to investments in unconsolidated real estate ventures. Management reviews its real estate investments for impairment following the end of each quarter for each of its real estate investments where events or changes in circumstances indicate that the carrying amounts may not be recoverable. For real estate investments, management analyzes recoverability based on the estimated undiscounted future cash flows expected to be generated from the operations and eventual disposition of the assets. Estimated future cash flows used in such analysis are based on management’s plans for the real estate investment and its views of market economic conditions. The estimates consider assumptions, including but not limited to, market rental rates, capitalization rates, and recent sales data for comparable real estate investments. At least quarterly, management assesses whether there are any other than temporary impairment indicators of the Company’s investments in unconsolidated real estate ventures. An investment is other than temporarily impaired only if the fair value of the investment in an unconsolidated real estate venture, as estimated by management, is less than the carrying value and the decline is other than temporary.
The principal considerations for our determination that performing procedures relating to the impairment assessments of real estate investments and investments in unconsolidated real estate ventures is a critical audit matter are the significant judgment by management when evaluating the real estate investments and investments in unconsolidated real estate ventures for potential impairment. This in turn led to a high degree of auditor judgment and subjectivity in applying procedures and evaluating audit evidence related to (i) the estimated undiscounted future cash flows expected to be generated by the real estate investments and (ii) the identification of any indicators that the value of the Company’s investments in unconsolidated real estate ventures may be other than temporarily impaired. In addition, there was significant audit effort in evaluating (i) the significant assumptions relating to the estimated undiscounted future cash flows expected to be generated by the real estate investments, related to market rental rates, capitalization rates, and recent sales data for comparable real estate investments, and (ii) any indicators that the value of the Company’s investments in unconsolidated real estate ventures may be other than temporarily impaired.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to the impairment assessments of real estate investments and investments in unconsolidated real estate ventures, including controls over management’s estimated undiscounted future cash flows expected to be generated by real estate investments and management’s identification of any indicators that the value of the Company’s investments in unconsolidated real estate ventures may be other than temporarily impaired. These procedures also included, among others, testing management’s process for (i) developing the estimated undiscounted future cash flows expected to be generated by the real estate investments, including the evaluation of the reasonableness of significant assumptions, the appropriateness of methods, the reasonableness of the model outputs and testing the completeness and accuracy of data provided by management, and (ii) identifying any indicators that the value of the Company’s investments in unconsolidated real estate ventures may be other than temporarily impaired. Evaluating the reasonableness of significant assumptions relating to the estimated undiscounted future cash flows expected to be generated by the real estate investments, related to market rental rates, capitalization rates, and recent sales data for comparable real estate investments, involved considering past performance of the asset and whether the assumptions were consistent with evidence obtained in other areas of the audit. Evaluating management’s assessment of indications of other than temporary impairment in investments in unconsolidated real estate ventures involved considering whether any market economic conditions, past performance of the asset, or evidence obtained in other areas of the audit may be indicative of other than temporary impairment.
F-2
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 24, 2021
We have served as the Company’s auditor since 2003.
F-3
Report of Independent Registered Public Accounting Firm
To the Partners of Brandywine Operating Partnership, L.P.
Opinions on the Financial Statements and Internal Control over Financial Reporting
We have audited the accompanying consolidated balance sheets of Brandywine Operating Partnership, L.P. and its subsidiaries (the “Partnership”) as of December 31, 2020 and 2019, and the related consolidated statements of operations, of comprehensive income, of partners' equity and of cash flows for each of the three years in the period ended December 31, 2020, including the related notes and financial statement schedules listed in the index appearing under Item 15(b) (collectively referred to as the “consolidated financial statements”). We also have audited the Partnership’s internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Partnership as of December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2020 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Partnership maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.
Basis for Opinions
The Partnership’s management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Report on Internal Control over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on the Partnership’s consolidated financial statements and on the Partnership’s internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Partnership in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.
Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
F-4
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Critical Audit Matters
The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Impairment Assessments of Real Estate Investments and Investments in Unconsolidated Real Estate Ventures
As described in Notes 2, 3 and 4 to the consolidated financial statements, the Partnership’s gross carrying value of operating real estate investments was $3,474 million and its investments in unconsolidated real estate ventures was $401 million as of December 31, 2020. During 2020, the Partnership did not recognize an impairment related to real estate investments or an other than temporary impairment related to investments in unconsolidated real estate ventures. Management reviews its real estate investments for impairment following the end of each quarter for each of its real estate investments where events or changes in circumstances indicate that the carrying amounts may not be recoverable. For real estate investments, management analyzes recoverability based on the estimated undiscounted future cash flows expected to be generated from the operations and eventual disposition of the assets. Estimated future cash flows used in such analysis are based on management’s plans for the real estate investment and its views of market economic conditions. The estimates consider assumptions, including but not limited to, market rental rates, capitalization rates, and recent sales data for comparable real estate investments. At least quarterly, management assesses whether there are any other than temporary impairment indicators of the Partnership’s investments in unconsolidated real estate ventures. An investment is other than temporarily impaired only if the fair value of the investment in an unconsolidated real estate venture, as estimated by management, is less than the carrying value and the decline is other than temporary.
The principal considerations for our determination that performing procedures relating to the impairment assessments of real estate investments and investments in unconsolidated real estate ventures is a critical audit matter are the significant judgment by management when evaluating the real estate investments and investments in unconsolidated real estate ventures for potential impairment. This in turn led to a high degree of auditor judgment and subjectivity in applying procedures and evaluating audit evidence related to (i) the estimated undiscounted future cash flows expected to be generated by the real estate investments and (ii) the identification of any indicators that the value of the Partnership’s investments in unconsolidated real estate ventures may be other than temporarily impaired. In addition, there was significant audit effort in evaluating (i) the significant assumptions relating to the estimated undiscounted future cash flows expected to be generated by the real estate investments, related to market rental rates, capitalization rates, and recent sales data for comparable real estate investments, and (ii) any indicators that the value of the Partnership’s investments in unconsolidated real estate ventures may be other than temporarily impaired.
Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to the impairment assessments of real estate investments and investments in unconsolidated real estate ventures, including controls over management’s estimated undiscounted future cash flows expected to be generated by real estate investments and management’s identification of any indicators that the value of the Partnership’s investments in unconsolidated real estate ventures may be other than temporarily impaired. These procedures also included, among others, testing management’s process for (i) developing the estimated undiscounted future cash flows expected to be generated by the real estate investments, including the evaluation of the reasonableness of significant assumptions, the appropriateness of methods, the reasonableness of the model outputs and testing the completeness and accuracy of data provided by management, and (ii) identifying any indicators that the value of the Partnership’s investments in unconsolidated real estate ventures may be other than temporarily impaired. Evaluating the reasonableness of significant assumptions relating to the estimated undiscounted future cash flows expected to be generated by the real estate investments, related to market rental rates, capitalization rates, and recent sales data for comparable real estate investments, involved considering past performance of the asset and whether the assumptions were consistent with evidence obtained in other areas of the audit. Evaluating management’s assessment of indications of other than temporary impairment in investments in unconsolidated real estate ventures involved considering whether any market economic conditions, past performance of the asset, or evidence obtained in other areas of the audit may be indicative of other than temporary impairment.
F-5
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 24, 2021
We have served as the Partnership’s auditor since 2003.
F-6
BRANDYWINE REALTY TRUST
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share information)
| December 31, 2020 | December 31, 2019 | ||||||||||
| ASSETS | |||||||||||
| Real estate investments: | |||||||||||
| Operating properties | $ | $ | |||||||||
| Accumulated depreciation | ( | ( | |||||||||
| Right of use asset - operating leases, net | |||||||||||
| Operating real estate investments, net | |||||||||||
| Construction-in-progress | |||||||||||
| Land held for development | |||||||||||
| Prepaid leasehold interests in land held for development, net | |||||||||||
| Total real estate investments, net | |||||||||||
| Assets held for sale, net | |||||||||||
| Cash and cash equivalents | |||||||||||
Accounts receivable, net of allowance of $ | |||||||||||
Accrued rent receivable, net of allowance of $ | |||||||||||
| Investment in Real Estate Ventures, equity method | |||||||||||
| Deferred costs, net | |||||||||||
| Intangible assets, net | |||||||||||
| Other assets | |||||||||||
| Total assets | $ | $ | |||||||||
| LIABILITIES AND BENEFICIARIES' EQUITY | |||||||||||
| Mortgage notes payable, net | $ | $ | |||||||||
| Unsecured term loan, net | |||||||||||
| Unsecured senior notes, net | |||||||||||
| Accounts payable and accrued expenses | |||||||||||
| Distributions payable | |||||||||||
| Deferred income, gains and rent | |||||||||||
| Intangible liabilities, net | |||||||||||
| Lease Liability - operating leases | |||||||||||
| Other liabilities | |||||||||||
| Total liabilities | $ | $ | |||||||||
Commitments and contingencies (See Note 20) | |||||||||||
| Brandywine Realty Trust's Equity: | |||||||||||
| Common Shares of Brandywine Realty Trust's beneficial interest, $0.01 par value; shares authorized 400,000,000; 170,572,964 and 176,480,095 issued and outstanding as of December 31, 2020 and December 31, 2019, respectively | |||||||||||
| Additional paid-in-capital | |||||||||||
| Deferred compensation payable in common shares | |||||||||||
| Common shares in grantor trust, 1,160,494 and 1,105,542 issued and outstanding as of December 31, 2020 and December 31, 2019, respectively | ( | ( | |||||||||
| Cumulative earnings | |||||||||||
| Accumulated other comprehensive loss | ( | ( | |||||||||
| Cumulative distributions | ( | ( | |||||||||
| Total Brandywine Realty Trust's equity | |||||||||||
| Noncontrolling interests | |||||||||||
| Total beneficiaries' equity | $ | $ | |||||||||
| Total liabilities and beneficiaries' equity | $ | $ | |||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-7
BRANDYWINE REALTY TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except share and per share information)
| Year Ended December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Revenue | |||||||||||||||||
| Rents | $ | $ | $ | ||||||||||||||
| Third party management fees, labor reimbursement and leasing | |||||||||||||||||
| Other | |||||||||||||||||
| Total revenue | |||||||||||||||||
| Operating expenses | |||||||||||||||||
| Property operating expenses | |||||||||||||||||
| Real estate taxes | |||||||||||||||||
| Third party management expenses | |||||||||||||||||
| Depreciation and amortization | |||||||||||||||||
| General and administrative expenses | |||||||||||||||||
| Provision for impairment | |||||||||||||||||
| Total operating expenses | |||||||||||||||||
| Gain on sale of real estate | |||||||||||||||||
| Net gain on disposition of real estate | |||||||||||||||||
| Net gain on sale of undepreciated real estate | |||||||||||||||||
| Total gain on sale of real estate | |||||||||||||||||
| Operating income | |||||||||||||||||
| Other income (expense): | |||||||||||||||||
| Interest income | |||||||||||||||||
| Interest expense | ( | ( | ( | ||||||||||||||
| Interest expense - amortization of deferred financing costs | ( | ( | ( | ||||||||||||||
| Equity in loss of Real Estate Ventures | ( | ( | ( | ||||||||||||||
| Net gain on real estate venture transactions | |||||||||||||||||
| Gain on promoted interest in unconsolidated real estate venture | |||||||||||||||||
| Loss on early extinguishment of debt | ( | ||||||||||||||||
| Net income before income taxes | |||||||||||||||||
| Income tax (provision) benefit | ( | ( | |||||||||||||||
| Net income | |||||||||||||||||
| Net income attributable to noncontrolling interests | ( | ( | ( | ||||||||||||||
| Net income attributable to Brandywine Realty Trust | |||||||||||||||||
| Nonforfeitable dividends allocated to unvested restricted shareholders | ( | ( | ( | ||||||||||||||
| Net income attributable to Common Shareholders of Brandywine Realty Trust | $ | $ | $ | ||||||||||||||
| Basic income per Common Share | $ | $ | $ | ||||||||||||||
| Diluted income per Common Share | $ | $ | $ | ||||||||||||||
| Basic weighted average shares outstanding | |||||||||||||||||
| Diluted weighted average shares outstanding | |||||||||||||||||
F-8
BRANDYWINE REALTY TRUST
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(in thousands)
| Year Ended December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Net income | $ | $ | $ | ||||||||||||||
| Comprehensive income (loss): | |||||||||||||||||
| Unrealized gain (loss) on derivative financial instruments | ( | ( | |||||||||||||||
| Amortization of interest rate contracts (1) | |||||||||||||||||
| Total comprehensive income (loss) | ( | ( | |||||||||||||||
| Comprehensive income | |||||||||||||||||
| Comprehensive income attributable to noncontrolling interest | ( | ( | ( | ||||||||||||||
| Comprehensive income attributable to Brandywine Realty Trust | $ | $ | $ | ||||||||||||||
(1)Amounts reclassified from comprehensive income to interest expense within the Consolidated Statements of Operations.
The accompanying notes are an integral part of these consolidated financial statements.
F-9
BRANDYWINE REALTY TRUST
CONSOLIDATED STATEMENTS OF BENEFICIARIES’ EQUITY
For the Years ended December 31, 2020, 2019 and 2018
(in thousands, except number of shares)
| Number of Common Shares | Number of Rabbi Trust/Deferred Compensation Shares | Common Shares of Brandywine Realty Trust's beneficial interest | Additional Paid-in Capital | Deferred Compensation Payable in Common Shares | Common Shares in Grantor Trust | Cumulative Earnings | Accumulated Other Comprehensive Income (Loss) | Cumulative Distributions | Noncontrolling Interests | Total | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
| BALANCE, December 31, 2017 | $ | $ | $ | $ | ( | $ | $ | $ | ( | $ | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive income | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of Common Shares of Beneficial Interest | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Repurchase and retirement of Common Shares of Beneficial Interest | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of partnership interest in consolidated real estate ventures | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Distributions from consolidated real estate ventures | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Redemption of LP Units | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Share-based compensation activity | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Share Issuance from/(to) Deferred Compensation Plan | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Share Choice Plan issuance | ( | — | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Reallocation of Noncontrolling interest | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Distributions declared ($0.73 per share) | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| BALANCE, December 31, 2018 | $ | $ | $ | $ | ( | $ | $ | $ | ( | $ | $ | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Cumulative effect of accounting change | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Repurchase and retirement of Common Shares of Beneficial Interest | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Issuance of partnership interest in consolidated real estate ventures | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Purchase of partnership interest in consolidated real estate venture | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Redemption of LP Units | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Share-based compensation activity | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Share Issuance from/(to) Deferred Compensation Plan | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Reallocation of Noncontrolling interest | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Distributions declared ($0.76 per share) | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| BALANCE, December 31, 2019 | $ | $ | $ | $ | ( | $ | $ | ( | $ | ( | $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other comprehensive loss | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Repurchase and retirement of Common Shares of Beneficial Interest | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Sale of partnership interest in consolidated real estate venture | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Distributions from consolidated real estate ventures | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Share-based compensation activity | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Share Issuance from/(to) Deferred Compensation Plan | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Reallocation of Noncontrolling interest | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Distributions declared ($0.76 per share) | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| BALANCE, December 31, 2020 | $ | $ | $ | $ | ( | $ | $ | ( | $ | ( | $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-10
BRANDYWINE REALTY TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
| Year Ended December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Cash flows from operating activities: | |||||||||||||||||
| Net income | $ | $ | $ | ||||||||||||||
| Adjustments to reconcile net income to net cash from operating activities: | |||||||||||||||||
| Depreciation and amortization | |||||||||||||||||
| Amortization of deferred financing costs | |||||||||||||||||
| Amortization of debt discount/(premium), net | ( | ||||||||||||||||
| Amortization of stock compensation costs | |||||||||||||||||
| Straight-line rent income | ( | ( | ( | ||||||||||||||
| Amortization of acquired above (below) market leases, net | ( | ( | ( | ||||||||||||||
| Ground rent expense | |||||||||||||||||
| Provision for doubtful accounts | ( | ||||||||||||||||
| Net gain on real estate venture transactions | ( | ( | ( | ||||||||||||||
| Gain on promoted interest in unconsolidated real estate venture | ( | ||||||||||||||||
| Net gain on sale of interests in real estate | ( | ( | ( | ||||||||||||||
| Loss on early extinguishment of debt | |||||||||||||||||
| Provision for impairment | |||||||||||||||||
| Other than temporary impairment | |||||||||||||||||
| Loss from Real Estate Ventures, net of distributions | |||||||||||||||||
| Income tax provision (benefit) | ( | ||||||||||||||||
| Changes in assets and liabilities: | |||||||||||||||||
| Accounts receivable | ( | ( | |||||||||||||||
| Other assets | ( | ( | |||||||||||||||
| Accounts payable and accrued expenses | ( | ||||||||||||||||
| Deferred income, gains and rent | ( | ||||||||||||||||
| Other liabilities | ( | ||||||||||||||||
| Net cash provided by operating activities | |||||||||||||||||
| Cash flows from investing activities: | |||||||||||||||||
| Acquisition of properties | ( | ( | |||||||||||||||
| Acquisition of partners interest in consolidated real estate venture | ( | ||||||||||||||||
| Proceeds from the sale of properties | |||||||||||||||||
| Proceeds from real estate venture sales | |||||||||||||||||
| Issuance of note receivable | ( | ||||||||||||||||
| Issuance of mortgage note receivable | ( | ||||||||||||||||
| Proceeds from repayment of mortgage notes receivable | |||||||||||||||||
| Proceeds from repayment of a capital lease | |||||||||||||||||
| Capital expenditures for tenant improvements | ( | ( | ( | ||||||||||||||
| Capital expenditures for redevelopments | ( | ( | ( | ||||||||||||||
| Capital expenditures for developments | ( | ( | ( | ||||||||||||||
| Advances for the purchase of tenant assets, net of repayments | ( | ||||||||||||||||
| Investment in unconsolidated Real Estate Ventures | ( | ( | ( | ||||||||||||||
| Deposits for real estate | ( | ( | |||||||||||||||
| Escrowed cash | |||||||||||||||||
| Capital distributions from Real Estate Ventures | |||||||||||||||||
| Leasing costs paid | ( | ( | ( | ||||||||||||||
| Net cash provided by (used in) investing activities | ( | ( | |||||||||||||||
| Cash flows from financing activities: | |||||||||||||||||
| Repayments of mortgage notes payable | ( | ( | ( | ||||||||||||||
| Proceeds from credit facility borrowings | |||||||||||||||||
| Repayments of credit facility borrowings | ( | ( | ( | ||||||||||||||
| Proceeds from unsecured notes | |||||||||||||||||
| Debt financing costs paid | ( | ( | |||||||||||||||
| Proceeds from the exercise of stock options | |||||||||||||||||
| Proceeds from the issuance of common shares | |||||||||||||||||
| Shares used for employee taxes upon vesting of share awards | ( | ( | ( | ||||||||||||||
| Partner contributions to consolidated real estate venture | |||||||||||||||||
| Partner distributions from consolidated real estate venture | ( | ||||||||||||||||
| Repurchase and retirement of common shares | ( | ( | ( | ||||||||||||||
| Redemption of limited partnership units | ( | ||||||||||||||||
| Distributions paid to shareholders | ( | ( | ( | ||||||||||||||
| Distributions to noncontrolling interest | ( | ( | ( | ||||||||||||||
| Net cash used in financing activities | ( | ( | ( | ||||||||||||||
| Increase/(Decrease) in cash and cash equivalents and restricted cash | ( | ( | |||||||||||||||
F-11
| Cash and cash equivalents and restricted cash at beginning of year | |||||||||||||||||
| Cash and cash equivalents and restricted cash at end of period | $ | $ | $ | ||||||||||||||
| Reconciliation of cash and cash equivalents and restricted cash: | |||||||||||||||||
| Cash and cash equivalents, beginning of period | $ | $ | $ | ||||||||||||||
| Restricted cash, beginning of period | |||||||||||||||||
| Cash and cash equivalents and restricted cash, beginning of period | $ | $ | $ | ||||||||||||||
| Cash and cash equivalents, end of period | $ | $ | $ | ||||||||||||||
| Restricted cash, end of period | |||||||||||||||||
| Cash and cash equivalents and restricted cash, end of period | $ | $ | $ | ||||||||||||||
| Year Ended December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Supplemental disclosure: | |||||||||||||||||
| Cash paid for interest, net of capitalized interest during the years ended December 31, 2020, 2019 and 2018 of $4,650, $2,246 and $3,586 respectively | $ | $ | $ | ||||||||||||||
| Cash paid for income taxes | |||||||||||||||||
| Supplemental disclosure of non-cash activity: | |||||||||||||||||
| Dividends and distributions declared but not paid | |||||||||||||||||
| Change in construction-in-progress related to non-cash disposition of land | |||||||||||||||||
| Change in deferred income, gains and rent to the non-cash disposition of land | ( | ||||||||||||||||
| Change in investment in real estate ventures as a result of dispositions | |||||||||||||||||
| Change in Notes receivable as a result of a noncash acquisition of an operating property | |||||||||||||||||
| Change in real estate ventures as a result of other than temporary impairment | ( | ||||||||||||||||
| Change in operating real estate related to a non-cash acquisition of an operating property | ( | ||||||||||||||||
| Change in intangible assets, net related to non-cash acquisition of an operating property | ( | ||||||||||||||||
| Change in acquired lease intangibles, net related to non-cash acquisition of an operating property | |||||||||||||||||
| Change in investments in joint venture related to non-cash acquisition of property | ( | ||||||||||||||||
| Change in mortgage notes payable related to acquisition of an operating property | |||||||||||||||||
| Change in operating real estate from deconsolidation of operating properties | |||||||||||||||||
| Change in investment in real estate ventures from deconsolidation of operating properties | ( | ||||||||||||||||
| Change in mortgage notes payable from deconsolidation of operating properties | ( | ||||||||||||||||
| Change in capital expenditures financed through accounts payable at period end | ( | ( | |||||||||||||||
| Change in other assets as a result of deconsolidation of operating properties | |||||||||||||||||
| Change in capital expenditures financed through retention payable at period end | ( | ( | |||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-12
BRANDYWINE OPERATING PARTNERSHIP, L.P.
CONSOLIDATED BALANCE SHEETS
(in thousands, except unit and per unit information)
| December 31, 2020 | December 31, 2019 | |||||||||||||
| ASSETS | ||||||||||||||
| Real estate investments: | ||||||||||||||
| Operating properties | $ | $ | ||||||||||||
| Accumulated depreciation | ( | ( | ||||||||||||
| Right of use asset - operating leases, net | ||||||||||||||
| Operating real estate investments, net | ||||||||||||||
| Construction-in-progress | ||||||||||||||
| Land held for development | ||||||||||||||
| Prepaid leasehold interests in land held for development, net | ||||||||||||||
| Total real estate investments, net | ||||||||||||||
| Assets held for sale, net | ||||||||||||||
| Cash and cash equivalents | ||||||||||||||
Accounts receivable, net of allowance of $ | ||||||||||||||
Accrued rent receivable, net of allowance of $ | ||||||||||||||
| Investment in Real Estate Ventures, equity method | ||||||||||||||
| Deferred costs, net | ||||||||||||||
| Intangible assets, net | ||||||||||||||
| Other assets | ||||||||||||||
| Total assets | $ | $ | ||||||||||||
| LIABILITIES AND PARTNERS' EQUITY | ||||||||||||||
| Mortgage notes payable, net | $ | $ | ||||||||||||
| Unsecured term loan, net | ||||||||||||||
| Unsecured senior notes, net | ||||||||||||||
| Accounts payable and accrued expenses | ||||||||||||||
| Distributions payable | ||||||||||||||
| Deferred income, gains and rent | ||||||||||||||
| Intangible liabilities, net | ||||||||||||||
| Lease liability - operating leases | ||||||||||||||
| Other liabilities | ||||||||||||||
| Total liabilities | $ | $ | ||||||||||||
Commitments and contingencies (See Note 20) | ||||||||||||||
| Redeemable limited partnership units at redemption value; 981,634 issued and outstanding as of December 31, 2020 and December 31, 2019 | ||||||||||||||
| Brandywine Operating Partnership, L.P.'s equity: | ||||||||||||||
| General Partnership Capital; 170,572,964 and 176,480,095 units issued and outstanding as of December 31, 2020 and December 31, 2019, respectively | ||||||||||||||
| Accumulated other comprehensive loss | ( | ( | ||||||||||||
| Total Brandywine Operating Partnership, L.P.'s equity | ||||||||||||||
| Noncontrolling interest - consolidated real estate ventures | ||||||||||||||
| Total partners' equity | $ | $ | ||||||||||||
| Total liabilities and partners' equity | $ | $ | ||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-13
BRANDYWINE OPERATING PARTNERSHIP, L.P.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except unit and per unit information)
| Year Ended December 31, | ||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||
| Revenue | ||||||||||||||||||||
| Rents | $ | $ | $ | |||||||||||||||||
| Third party management fees, labor reimbursement and leasing | ||||||||||||||||||||
| Other | ||||||||||||||||||||
| Total revenue | ||||||||||||||||||||
| Operating expenses | ||||||||||||||||||||
| Property operating expenses | ||||||||||||||||||||
| Real estate taxes | ||||||||||||||||||||
| Third party management expenses | ||||||||||||||||||||
| Depreciation and amortization | ||||||||||||||||||||
| General and administrative expenses | ||||||||||||||||||||
| Provision for impairment | ||||||||||||||||||||
| Total operating expenses | ||||||||||||||||||||
| Gain on sale of real estate | ||||||||||||||||||||
| Net gain on disposition of real estate | ||||||||||||||||||||
| Net gain on sale of undepreciated real estate | ||||||||||||||||||||
| Total gain on sale of real estate | ||||||||||||||||||||
| Operating income | ||||||||||||||||||||
| Other income (expense): | ||||||||||||||||||||
| Interest income | ||||||||||||||||||||
| Interest expense | ( | ( | ( | |||||||||||||||||
| Interest expense - amortization of deferred financing costs | ( | ( | ( | |||||||||||||||||
| Equity in loss of Real Estate Ventures | ( | ( | ( | |||||||||||||||||
| Net gain on real estate venture transactions | ||||||||||||||||||||
| Gain on promoted interest in unconsolidated real estate venture | ||||||||||||||||||||
| Loss on early extinguishment of debt | ( | |||||||||||||||||||
| Net income before income taxes | ||||||||||||||||||||
| Income tax (provision) benefit | ( | ( | ||||||||||||||||||
| Net income | ||||||||||||||||||||
| Net income attributable to noncontrolling interests - consolidated real estate ventures | ( | ( | ( | |||||||||||||||||
| Net income attributable to Brandywine Operating Partnership | ||||||||||||||||||||
| Nonforfeitable dividends allocated to unvested restricted unitholders | ( | ( | ( | |||||||||||||||||
| Net income attributable to Common Partnership Unitholders of Brandywine Operating Partnership, L.P. | $ | $ | $ | |||||||||||||||||
| Basic income per Common Partnership Unit | $ | $ | $ | |||||||||||||||||
| Diluted income per Common Partnership Unit | $ | $ | $ | |||||||||||||||||
| Basic weighted average common partnership units outstanding | ||||||||||||||||||||
| Diluted weighted average common partnership units outstanding | ||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-14
BRANDYWINE OPERATING PARTNERSHIP, L.P.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(in thousands)
| Year Ended December 31, | ||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||
| Net income | $ | $ | $ | |||||||||||||||||
| Comprehensive income (loss): | ||||||||||||||||||||
| Unrealized gain (loss) on derivative financial instruments | ( | ( | ||||||||||||||||||
| Amortization of interest rate contracts (1) | ||||||||||||||||||||
| Total comprehensive income (loss) | ( | ( | ||||||||||||||||||
| Comprehensive income | ||||||||||||||||||||
| Comprehensive income attributable to noncontrolling interest - consolidated real estate ventures | ( | ( | ( | |||||||||||||||||
| Comprehensive income attributable to Brandywine Operating Partnership | $ | $ | $ | |||||||||||||||||
(1)Amounts reclassified from comprehensive income to interest expense within the Consolidated Statement of Operations.
The accompanying notes are an integral part of these consolidated financial statements.
F-15
BRANDYWINE OPERATING PARTNERSHIP, L.P.
CONSOLIDATED STATEMENTS OF PARTNERS’ EQUITY
For the Years ended December 31, 2020, 2019 and 2018
(in thousands, except Units)
| General Partner Capital | |||||||||||||||||||||||||||||
| Units | Amount | Accumulated Other Comprehensive Income (Loss) | Noncontrolling Interest - Consolidated Real Estate Ventures | Total Partners' Equity | |||||||||||||||||||||||||
| BALANCE, December 31, 2017 | $ | $ | $ | $ | |||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||
| Other comprehensive income | |||||||||||||||||||||||||||||
| Deferred compensation obligation | ( | ( | |||||||||||||||||||||||||||
| Issuance of LP Units | |||||||||||||||||||||||||||||
| Repurchase and retirement of LP units | ( | ( | ( | ||||||||||||||||||||||||||
| Issuance of partnership interest in consolidated real estate venture | |||||||||||||||||||||||||||||
| Distributions from consolidated real estate venture | ( | ( | |||||||||||||||||||||||||||
| Share Choice Plan issuance | ( | — | |||||||||||||||||||||||||||
| Redemption value of limited partnership units | |||||||||||||||||||||||||||||
| Share-based compensation activity | |||||||||||||||||||||||||||||
| Distributions declared to general partnership unitholders ($0.73 per unit) | ( | ( | |||||||||||||||||||||||||||
| BALANCE, December 31, 2018 | $ | $ | $ | $ | |||||||||||||||||||||||||
| Cumulative effect of accounting change | ( | ( | |||||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||
| Other comprehensive loss | ( | ( | |||||||||||||||||||||||||||
| Deferred compensation obligation | — | ||||||||||||||||||||||||||||
| Conversion of LP Units to common shares | |||||||||||||||||||||||||||||
| Repurchase and retirement of LP units | ( | ( | ( | ||||||||||||||||||||||||||
| Issuance of partnership interest in consolidated real estate ventures | |||||||||||||||||||||||||||||
| Share-based compensation activity | |||||||||||||||||||||||||||||
| Purchase of partnership interest in consolidated real estate venture | ( | ( | ( | ||||||||||||||||||||||||||
| Adjustment of redeemable partnership units to liquidation value at period end | ( | ( | |||||||||||||||||||||||||||
| Distributions declared to general partnership unitholders ($0.76 per unit) | ( | ( | |||||||||||||||||||||||||||
| BALANCE, December 31, 2019 | $ | $ | ( | $ | $ | ||||||||||||||||||||||||
| Net income | |||||||||||||||||||||||||||||
| Other comprehensive loss | ( | ( | |||||||||||||||||||||||||||
| Deferred compensation obligation | ( | ( | |||||||||||||||||||||||||||
| Repurchase and retirement of LP units | ( | ( | ( | ||||||||||||||||||||||||||
| Distributions from consolidated real estate ventures | ( | ( | |||||||||||||||||||||||||||
| Share-based compensation activity | |||||||||||||||||||||||||||||
| Sale of partnership interest to consolidated real estate venture | ( | ( | |||||||||||||||||||||||||||
| Adjustment of redeemable partnership units to liquidation value at period end | |||||||||||||||||||||||||||||
| Distributions declared to general partnership unitholders ($0.76 per unit) | ( | ( | |||||||||||||||||||||||||||
| BALANCE, December 31, 2020 | $ | $ | ( | $ | $ | ||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-16
BRANDYWINE OPERATING PARTNERSHIP L.P.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
| Year Ended December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Cash flows from operating activities: | |||||||||||||||||
| Net income | $ | $ | $ | ||||||||||||||
| Adjustments to reconcile net income to net cash from operating activities: | |||||||||||||||||
| Depreciation and amortization | |||||||||||||||||
| Amortization of deferred financing costs | |||||||||||||||||
| Amortization of debt discount/(premium), net | ( | ||||||||||||||||
| Amortization of stock compensation costs | |||||||||||||||||
| Straight-line rent income | ( | ( | ( | ||||||||||||||
| Amortization of acquired above (below) market leases, net | ( | ( | ( | ||||||||||||||
| Ground rent expense | |||||||||||||||||
| Provision for doubtful accounts | ( | ||||||||||||||||
| Net gain on real estate venture transactions | ( | ( | ( | ||||||||||||||
| Gain on promoted interest in unconsolidated real estate venture | ( | ||||||||||||||||
| Net gain on sale of interests in real estate | ( | ( | ( | ||||||||||||||
| Loss on early extinguishment of debt | |||||||||||||||||
| Provision for impairment | |||||||||||||||||
| Other than temporary impairment | |||||||||||||||||
| Loss from Real Estate Ventures, net of distributions | |||||||||||||||||
| Income tax provision (benefit) | ( | ||||||||||||||||
| Changes in assets and liabilities: | |||||||||||||||||
| Accounts receivable | ( | ( | |||||||||||||||
| Other assets | ( | ( | |||||||||||||||
| Accounts payable and accrued expenses | ( | ||||||||||||||||
| Deferred income, gains and rent | ( | ||||||||||||||||
| Other liabilities | ( | ||||||||||||||||
| Net cash provided by operating activities | |||||||||||||||||
| Cash flows from investing activities: | |||||||||||||||||
| Acquisition of properties | ( | ( | |||||||||||||||
| Acquisition of partners interest in consolidated real estate venture | ( | ||||||||||||||||
| Proceeds from the sale of properties | |||||||||||||||||
| Proceeds from real estate venture sales | |||||||||||||||||
| Issuance of note receivable | ( | ||||||||||||||||
| Issuance of mortgage note receivable | ( | ||||||||||||||||
| Proceeds from repayment of mortgage notes receivable | |||||||||||||||||
| Proceeds from repayment of a capital lease | |||||||||||||||||
| Capital expenditures for tenant improvements | ( | ( | ( | ||||||||||||||
| Capital expenditures for redevelopments | ( | ( | ( | ||||||||||||||
| Capital expenditures for developments | ( | ( | ( | ||||||||||||||
| Advances for the purchase of tenant assets, net of repayments | ( | ||||||||||||||||
| Investment in unconsolidated Real Estate Ventures | ( | ( | ( | ||||||||||||||
| Deposits for real estate | ( | ( | |||||||||||||||
| Escrowed cash | |||||||||||||||||
| Capital distributions from Real Estate Ventures | |||||||||||||||||
| Leasing costs paid | ( | ( | ( | ||||||||||||||
| Net cash provided by (used in) investing activities | ( | ( | |||||||||||||||
| Cash flows from financing activities: | |||||||||||||||||
| Repayments of mortgage notes payable | ( | ( | ( | ||||||||||||||
| Proceeds from credit facility borrowings | |||||||||||||||||
| Repayments of credit facility borrowings | ( | ( | ( | ||||||||||||||
| Proceeds from unsecured notes | |||||||||||||||||
| Debt financing costs paid | ( | ( | |||||||||||||||
| Proceeds from the exercise of stock options | |||||||||||||||||
| Proceeds from the issuance of common units | |||||||||||||||||
| Shares used for employee taxes upon vesting of share awards | ( | ( | ( | ||||||||||||||
| Partner contributions to consolidated real estate venture | |||||||||||||||||
| Partner distributions from consolidated real estate venture | ( | ||||||||||||||||
| Repurchase and retirement of common shares | ( | ( | ( | ||||||||||||||
| Redemption of limited partnership units | ( | ||||||||||||||||
| Distributions paid to preferred and common partnership units | ( | ( | ( | ||||||||||||||
| Net cash used in financing activities | ( | ( | ( | ||||||||||||||
| Increase/(Decrease) in cash and cash equivalents and restricted cash | ( | ( | |||||||||||||||
| Cash and cash equivalents and restricted cash at beginning of year | |||||||||||||||||
F-17
| Cash and cash equivalents and restricted cash at end of period | $ | $ | $ | ||||||||||||||
| Reconciliation of cash and cash equivalents and restricted cash: | |||||||||||||||||
| Cash and cash equivalents, beginning of period | $ | $ | $ | ||||||||||||||
| Restricted cash, beginning of period | |||||||||||||||||
| Cash and cash equivalents and restricted cash, beginning of period | $ | $ | $ | ||||||||||||||
| Cash and cash equivalents, end of period | $ | $ | $ | ||||||||||||||
| Restricted cash, end of period | |||||||||||||||||
| Cash and cash equivalents and restricted cash, end of period | $ | $ | $ | ||||||||||||||
| Year Ended December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Supplemental disclosure: | |||||||||||||||||
| Cash paid for interest, net of capitalized interest during the years ended December 31, 2020, 2019 and 2018 of $4,650, $2,246 and $3,586 respectively | $ | $ | $ | ||||||||||||||
| Cash paid for income taxes | |||||||||||||||||
| Supplemental disclosure of non-cash activity: | |||||||||||||||||
| Dividends and distributions declared but not paid | |||||||||||||||||
| Change in construction-in-progress related to non-cash disposition of land | |||||||||||||||||
| Change in deferred income, gains and rent to the non-cash disposition of land | ( | ||||||||||||||||
| Change in investment in real estate ventures as a result of dispositions | |||||||||||||||||
| Change in Notes receivable as a result of a noncash acquisition of an operating property | |||||||||||||||||
| Change in real estate ventures as a result of other than temporary impairment | ( | ||||||||||||||||
| Change in operating real estate related to a non-cash acquisition of an operating property | ( | ||||||||||||||||
| Change in intangible assets, net related to non-cash acquisition of an operating property | ( | ||||||||||||||||
| Change in acquired lease intangibles, net related to non-cash acquisition of an operating property | |||||||||||||||||
| Change in investments in joint venture related to non-cash acquisition of property | ( | ||||||||||||||||
| Change in mortgage notes payable related to acquisition of an operating property | |||||||||||||||||
| Change in operating real estate from deconsolidation of operating properties | |||||||||||||||||
| Change in investment in real estate ventures from deconsolidation of operating properties | ( | ||||||||||||||||
| Change in mortgage notes payable from deconsolidation of operating properties | ( | ||||||||||||||||
| Change in capital expenditures financed through accounts payable at period end | ( | ( | |||||||||||||||
| Change in other assets as a result of deconsolidation of operating properties | |||||||||||||||||
| Change in capital expenditures financed through retention payable at period end | ( | ( | |||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-18
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION OF THE PARENT COMPANY AND THE OPERATING PARTNERSHIP
Brandywine Realty Trust (the "Parent Company") is a self-administered and self-managed real estate investment trust (“REIT”) engaged in the acquisition, development, redevelopment, ownership, management, and operation of a portfolio of office and mixed-use properties. The Parent Company owns its assets and conducts its operations through Brandywine Operating Partnership, L.P. (the "Operating Partnership") and subsidiaries of the Operating Partnership. The Parent Company is the sole general partner of the Operating Partnership and, as of December 31, 2020, owned a 99.4 % interest in the Operating Partnership. The Parent Company’s common shares of beneficial interest are publicly traded on the New York Stock Exchange under the ticker symbol “BDN.” The Parent Company, the Operating Partnership, and their consolidated subsidiaries are collectively referred to as the "Company."
As of December 31, 2020, the Company owned 82 properties that contained an aggregate of approximately 13.9 million net rentable square feet (collectively, the “Properties”). The Company’s core portfolio of operating properties (the “Core Properties”) excludes development properties, redevelopment properties, and properties held for sale. The Properties were comprised of the following as of December 31, 2020:
| Number of Properties | Rentable Square Feet | ||||||||||
| Office properties | |||||||||||
| Mixed-use properties | |||||||||||
| Core Properties | |||||||||||
| Development property | |||||||||||
| Redevelopment properties | |||||||||||
| The Properties | |||||||||||
In addition to the Properties, as of December 31, 2020, the Company owned 228.5 acres of land held for development, of which 35.2 acres were held for sale. The Company also held leasehold interests in two land parcels totaling 1.8 acres, each acquired through prepaid 99-year 55.5 additional acres of undeveloped land. As of December 31, 2020, the total potential development that this inventory of land could support under current zoning and entitlements, including the parcels under option, amounted to an estimated 14.2 million square feet, of which 0.2 million square feet relates to 35.2 acres held for sale. As of December 31, 2020, the Company also owned economic interests in nine unconsolidated real estate ventures (collectively, the “Real Estate Ventures”) (see Note 4, ''Investment in Unconsolidated Real Estate Ventures” for further information). The Properties and the properties owned by the Real Estate Ventures are located in or near Philadelphia, Pennsylvania; Austin, Texas; Metropolitan Washington, D.C.; Southern New Jersey; and Wilmington, Delaware.
All references to building square footage, rentable square feet, acres, occupancy percentage, the number of buildings, and tax basis are unaudited.
The Company conducts its third-party real estate management services business primarily through seven management companies (collectively, the “Management Companies”): Brandywine Realty Services Corporation (“BRSCO”), BDN Management Inc. (“BMI”), Brandywine Properties I Limited, Inc. (“BPI”), BDN Brokerage, LLC (“BBL”), Brandywine Properties Management, L.P. (“BPM”), Brandywine Brokerage Services, LLC (“BBS”), and BDN GC Services LLC ("BGCS"). BRSCO, BMI and BPI are each a taxable REIT subsidiary. BBS, BBL, BPM, and BGCS are tax disregarded entities wholly owned by the taxable REIT subsidiary entities. As of December 31, 2020, the Operating Partnership owned, directly and indirectly, 100 24.7 million net rentable square feet, of which approximately 13.9 million net rentable square feet related to Properties owned by the Company and approximately 10.8 million net rentable square feet related to properties owned by third parties and Real Estate Ventures.
F-19
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The Company consolidates variable interest entities (“VIEs”) in which it is considered to be the primary beneficiary. VIEs are entities in which the equity investors do not have sufficient equity at risk to finance their endeavors without additional financial support or that the holders of the equity investment at risk do not have a controlling financial interest. The primary beneficiary is defined by the entity having both of the following characteristics: (i) the power to direct those matters that most significantly impact the activities of the VIE and (ii) the obligation to absorb losses or the right to receive benefits of the VIE that could potentially be significant to the VIE. For entities that the Company has the obligations to fund losses, its maximum exposure to loss is not limited to the carrying amount of its investments.
The Company continuously assesses its determination of the primary beneficiary for each entity and assesses reconsideration events that may cause a change in the original determinations.
As of December 31, 2020 and 2019, the Company included in its consolidated balance sheets consolidated VIEs having total assets of $49.2 million and $392.0 million, respectively, and total liabilities of $21.6 million and $255.6 million, respectively.
When an entity is not deemed to be a VIE, the Company consolidates entities for which it has significant decision making control over the entity’s operations. The Company’s judgment with respect to its level of influence or control of an entity involves consideration of various factors including the form of the Company’s ownership interest, its representation in the entity’s governance, the size of its investment (including loans), estimates of future cash flows, its ability to participate in policy making decisions and the rights of the other investors to participate in the decision making process and to replace the Company as manager and/or liquidate the venture, if applicable. The Company’s assessment of its influence or control over an entity affects the presentation of these investments in the Company’s consolidated financial statements. In addition to evaluating control rights, the Company consolidates entities in which the outside partner has no substantive kick-out rights to remove the Company as managing member. The portion of the consolidated entities that are not owned by the Company is presented as noncontrolling interest as of and during the periods consolidated. All intercompany transactions have been eliminated in consolidation.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America ("US GAAP") requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates.
Operating Properties
Operating properties are carried at historical cost less accumulated depreciation and impairment losses. The value of operating properties reflects their purchase price or development cost. Acquisition costs related to business combinations are expensed as incurred, whereas the costs related to asset acquisitions are capitalized as incurred. Costs incurred for the renovation and betterment of an operating property are capitalized to the Company’s investment in that property. Ordinary repairs and maintenance are expensed as incurred.
Purchase Price Allocation
For acquisitions of real estate or in-substance real estate that are accounted for as business combinations, we recognize the assets acquired (including the intangible value of acquired above- or below-market leases, acquired in-place leases and tenant relationship values), liabilities assumed, noncontrolling interests, and previously existing ownership interests at fair value as of the acquisition date. Any excess (deficit) of the consideration transferred relative to the fair value of the net assets acquired is accounted for as goodwill (bargain purchase gain). Acquisition costs related to business combinations are expensed as incurred.
Acquisitions of real estate and in-substance real estate that do not meet the definition of a business are accounted for as asset acquisitions. The Company generally expects that acquisitions of real estate or in-substance real estate will not meet the definition of business and therefore are accounted for as asset acquisitions, unless specifically noted otherwise. The
F-20
accounting model for asset acquisitions is similar to the accounting model for business combinations except that the acquisition consideration (including acquisition costs) is allocated to the individual assets acquired and liabilities assumed on a relative fair value basis. As a result, asset acquisitions do not result in recognition of goodwill or a bargain purchase gain. Additionally, because the accounting model for asset acquisitions is a cost accumulation model, preexisting interests in the acquired assets, if any, are not remeasured to fair value but continue to be accounted for at their historical cost. Direct acquisition costs are capitalized if an asset acquisition is probable. If we determine that an asset acquisition is no longer probable, no new costs are capitalized and all capitalized costs that are not recoverable are written off.
The purchase price is allocated to the acquired assets and assumed liabilities, including land and buildings, as if vacant based on highest and best use for the acquired assets. The Company assesses and considers fair value of the operating properties based on estimated cash flow projections that utilize discount and/or capitalization rates that it deems appropriate, as well as available market information. Estimates of future cash flows are based on a number of factors including the historical operating results, known and anticipated trends, and market and economic conditions.
The Company allocates the purchase price of properties considered to be business combinations and asset acquisitions to net tangible and identified intangible assets acquired based on fair values. Above-market and below-market in-place lease values for acquired properties are recorded based on the present value (using an interest rate which reflects the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the in-place leases and (ii) the Company’s estimate of the fair market lease rates for the corresponding in-place leases, measured over a period equal to the remaining noncancellable term of the lease (including the below market fixed renewal periods that are considered probable, if applicable). Capitalized above-market lease values are amortized as a reduction of rental income over the remaining noncancellable terms of the respective leases. Capitalized below-market lease values are amortized as an increase to rental income over the remaining noncancellable terms of the respective leases, including any below market fixed-rate renewal option periods that are considered probable.
Other intangible assets also include in-place leases based on the Company’s evaluation of the specific characteristics of each tenant’s lease and the Company’s overall relationship with the respective tenant. The Company estimates the cost to execute leases with terms similar to the remaining lease terms of the in-place leases, including leasing commissions, legal and other related expenses. This intangible asset is amortized to expense over the remaining term of the respective leases and any fixed-rate bargain renewal periods. Factors considered by the Company in this analysis include an estimate of the carrying costs during the expected lease-up periods considering current market conditions and costs to execute similar leases. In estimating carrying costs, the Company includes real estate taxes, insurance, and other operating expenses, and estimates of lost rents at market rates during the expected lease-up periods, which primarily range from to twelve months . The Company also considers information obtained about each property as a result of its pre-acquisition due diligence, marketing, and leasing activities in estimating the fair value of the tangible and intangible assets acquired. The Company also uses the information obtained as a result of its pre-acquisition due diligence as part of its consideration of the accounting standard governing asset retirement obligations and when necessary, will record a conditional asset retirement obligation as part of its purchase price. The Company also evaluates tenant relationships on a tenant-specific basis. On most of the Company’s acquisitions, this intangible has not been material and, as a result, no value has been assigned.
In the event that a tenant terminates its lease, the unamortized portion of each intangible, including in-place lease values and tenant relationship values, is charged to expense and market rate adjustments (above or below) are recorded to revenue.
Depreciation and Amortization
The costs of buildings and improvements are depreciated using the straight-line method based on the following useful lives: buildings and improvements (5 to 55 years) and tenant improvements (the shorter of (i) the life of the asset (1 to 16 years) or (ii) the lease term).
F-21
Ground Leases
The Company is the lessee under long-term ground leases classified as operating leases. The Company makes significant assumptions and judgments when determining the discount rate for the lease to calculate the present value of the lease payments. As the rate implicit in the lease is not readily determinable, the Company estimates the incremental borrowing rate (“IBR”) that it would need to pay to borrow, on a collateralized basis, an amount equal to the lease payments in a similar economic environment, over a similar lease term. The Company utilizes a market-based approach to estimate the IBR for each individual lease. The base IBR is estimated utilizing observable mortgage and corporate bond rates, which are then adjusted to account for considerations related to the Company’s credit rating and the lease term to select an incremental borrowing rate for each lease.
The right of use assets and lease liabilities are presented as “Right of use asset - operating leases, net” and “Lease liability - operating leases”, respectively, on the consolidated balance sheet as of December 31, 2020. The lease liabilities and right of use assets are amortized on a straight-line basis over the lease term with the corresponding expense classified in “Property operating expenses” on the consolidated statements of operations.
The most recent CPI adjustment is used to determine the present value of the lease payments for an indexed lease and ultimately the right of use asset and corresponding lease liability. Rent payments for amounts in excess of this estimated growth rate will be expensed on a cash basis as incurred and are considered variable lease costs.
Impairment of Real Estate Investments
The Company reviews its real estate investments for impairment following the end of each quarter for each of its real estate investments where events or changes in circumstances indicate that the carrying amounts may not be recoverable. The Company updates leasing and other assumptions regularly, paying particular attention to real estate investments where there is an event or change in circumstances that indicates an impairment in value. Additionally, the Company considers strategic decisions regarding the future development plans for real estate investment under development and other market factors. For real estate investments to be held and used, the Company analyzes recoverability based on the estimated undiscounted future cash flows expected to be generated from the operations and eventual disposition of the assets over, in most cases, a 10-year hold period. If there is significant possibility that the Company will dispose of assets earlier, it analyzes the recoverability using a probability weighted analysis of the undiscounted future cash flows expected to be generated from the operations and eventual disposition of each asset using various probable hold periods. If the recoverability analysis indicates that the carrying value of the tested real estate investment is not recoverable, the real estate investment is written down to its fair value and an impairment is recognized in the amount of the excess of the carrying amount of the asset over its fair value. If and when the Company’s plans change, it revises its recoverability analysis to use cash flows expected from operations and eventual disposition of each asset using hold periods that are consistent with its revised plans.
Estimated future cash flows used in such analysis are based on the Company’s plans for the real estate investment and its views of market economic conditions. The estimates consider assumptions, including but not limited to market rental rates, capitalization rates, and recent sales data for comparable real estate investments. Future cash flows are discounted when determining fair value of an asset. Most of these assumptions are influenced by our direct experience with the real estate investments and their markets as well as market data obtained from real estate leasing and brokerage firms.
Assets Held for Sale
The Company generally reclassifies assets to held for sale when the transaction has been approved by its Board of Trustees, or by officers vested with authority to approve the transaction, and there are no known significant contingencies relating to the sale of the real estate investment within one year of the consideration date and the consummation of the transaction is otherwise considered probable. When a real estate investment is designated as held for sale, the Company stops depreciating the real estate investment and estimates the real estate investment’s fair value, net of selling costs. If the determination is made that the estimated fair value, net of selling costs, is less than the net carrying value of the real estate investment, an impairment is recognized, reducing the net carrying value of the real estate investment to estimated fair value less selling costs. For periods in which a real estate investment is classified as held for sale, the Company classifies the assets and liabilities, as applicable, of the real estate investment as held for sale on the consolidated balance sheet for such periods.
F-22
Impairment of Land Held for Development
When demand for build-to-suit properties declines and the ability to sell land held for development deteriorates, or other market factors indicate possible impairment in the recoverability of land held for development, it is reviewed for impairment by comparing its fair value to its carrying value. If the estimated sales value is less than the carrying value, the carrying value is written down to its estimated fair value. Estimated fair value is generally determined using a market valuation approach, comparing the subject property to recent comparable market transactions in a similar location; or using estimated cash flows.
Cash and Cash Equivalents
Cash and cash equivalents are highly-liquid investments with original maturities of three months or less. The Company maintains cash equivalents in money market accounts with financial institutions in excess of insured limits, but believes this risk is mitigated by only investing in or through major financial institutions. The Company does not invest its available cash balances in money market funds. As such, available cash balances are appropriately reflected as cash and cash equivalents on the consolidated balance sheets.
Restricted Cash
Restricted cash consists of cash held as collateral to provide credit enhancement for the Company’s mortgage debt, cash for property taxes, capital expenditures and tenant improvements. Restricted cash also includes cash held by qualified intermediaries for possible investments in like-kind exchanges in accordance with Section 1031 of the Internal Revenue Code in connection with sales of the Company’s properties. Restricted cash is included in “Other assets” in the consolidated balance sheets.
Accounts Receivable and Accrued Rent Receivable
Generally, leases with tenants are accounted for as operating leases. Minimum lease payments under tenant leases are recognized on a straight-line basis over the term of the related lease. The cumulative difference between lease revenue recognized under the straight-line method and contractual lease payment terms are recorded as “Accrued rent receivable, net” on the consolidated balance sheets. Included in current tenant receivables are tenant reimbursements which are comprised of amounts recoverable from tenants for common area maintenance expenses and certain other recoverable expenses that are recognized as revenue in the period in which the related expenses are incurred.
Investments in Unconsolidated Real Estate Ventures
Under the equity method, investments in real estate ventures are recorded initially at cost and subsequently adjusted for equity in earnings, contributions, distributions, and impairments. For real estate ventures that are constructing assets to commence planned principal operations, the Company capitalizes interest expense to the extent that it is recoverable using the Company’s weighted average interest rate of consolidated debt and its investment balance as a basis. Planned principal operations commence when a property is available to lease and at that point in time, the Company ceases capitalizing interest to its investment basis.
At least quarterly, management assesses whether there are any other than temporary impairment indicators of the Company’s investments in real estate ventures. An investment is other than temporarily impaired only if the fair value of the investment in a real estate venture, as estimated by management, is less than the carrying value and the decline is other than temporary. To the extent that an other than temporary impairment has occurred, an impairment charge is recorded in the amount of the excess of the carrying amount of the investment over the estimated fair value. Management is required to make significant judgments about the estimated fair value of its investments to determine if an impairment exists. Fair value is generally determined through income valuation approaches, including discounted cash flows and direct capitalization models.
F-23
Deferred Costs
Certain costs incurred in connection with property leasing are capitalized as deferred leasing costs. Deferred leasing costs consist primarily of third-party and internal leasing commissions that are amortized using the straight-line method over the life of the respective lease which generally ranges from 1 to 16 years. Management re-evaluates the remaining useful lives of leasing costs in conjunction with changes in the respective lease term.
Notes Receivable
The Company accounts for notes receivable on its balance sheet at amortized cost, net of allowance for loan losses. Interest income is recognized over the term of the notes receivable and is calculated based on the contractual terms of each note agreement. At inception and on a quarterly basis, the Company evaluates notes receivable for the current estimate of expected credit losses over the contractual term using a probability-of-default method and reports in net income (as a credit loss expense) the amount necessary to adjust the allowance for credit losses to reflect management's current estimate. Management considers performance and/or value of the underlying collateral property as well as the financial and operating capability of the borrower/sponsor in its evaluation.
Revenue Recognition
Rental Revenue
The Company generates revenue under leases with tenants occupying the Properties. Generally, leases with tenants are accounted for as operating leases. As of December 31, 2020 and 2019, the Company does not have any leases classified as direct-financing or sales-type leases. The operating leases have various expiration dates.
Fixed lease payments under tenant leases are recognized on a straight-line basis over the term of the related lease. The cumulative difference between lease revenue recognized under the straight-line method and contractual lease payments are recorded as “Accrued rent receivable” on the consolidated balance sheets. Variable lease payments are recognized as lease revenue in the period in which changes occur in facts and circumstances on which the variable lease payments are based.
Topic 842 requires a binary approach to evaluating leases for collectability. Lessors are required to determine if it is probable that substantially all of the lease payments will be collected from the tenant over the lease term. Should the lessor determine that it is not probable that substantially all of the lease payments will be collected, the standard requires that the lessor write off any accrued rent receivable and begin recognizing lease payments on a cash basis.
The Company’s lease revenue is impacted by the Company’s determination of whether improvements to the property, whether made by the Company or by the tenant, are landlord assets. The determination of whether an improvement is a
F-24
landlord asset requires judgment. In making this judgment, the Company’s primary consideration is whether an improvement would be utilizable by another tenant upon the then-existing tenant vacating the improved space. If the Company has funded an improvement that it determines not to be landlord assets, then it treats the cost of the improvement as a lease incentive. If the tenant has funded an improvement that the Company determines to be landlord assets, then the Company treats the costs of the improvement as deferred revenue and amortizes these costs into revenue over the lease term.
For certain leases, the Company also makes significant assumptions and judgments in determining the lease term, including assumptions when the lease provides the tenant with an early termination option or purchase option. The lease term impacts the period over which the Company determines and records lease payments and also impacts the period over which it amortizes lease-related costs. The Company considers all relevant factors that create an economic incentive for the lessee and uses judgment to determine if those factors, considered together, signify that the lessee is reasonably certain to exercise the option. For leases where a tenant executes a lease termination, termination fees are recognized over the modified term of the lease as rental income. Additionally, any deferred rents receivable are accelerated over the modified lease term.
The Company’s leases also typically provide for tenant reimbursement of a portion of common area maintenance expenses and other operating expenses to the extent that a tenant’s pro rata share of expenses exceeds a base year level set in the lease or to the extent that the tenant has a lease on a triple net basis. As the timing and pattern of revenue recognition is the same, rents and tenant reimbursements are treated as a combined lease component and included in the "Rents" caption within the Company's consolidated statements of operations.
Fixed lease payments include contractual rents under lease agreements with tenants recognized on a straight-line basis over the lease term, including amortization of lease incentives and above or below market rent intangibles, and parking income that is fixed under a long-term contract. Variable lease payments include reimbursements billed to tenants, termination fees, bad debt expense, and parking income that is not fixed under a long-term contract.
Point of Sale Revenue
Point of sale revenue consists of parking, restaurant, and flexible stay revenue from the Company’s hotel operations. Point of sale service obligations are performed daily, and the customer obtains control of those services simultaneously as they are performed. Accordingly, revenue is recorded on an accrual basis as it is earned, coinciding with the services that are provided to the Company’s customers. Parking and flexible stay revenue is recognized within rents and restaurant income is recognized within other income on the consolidated statements of operations.
Third party management fees, labor reimbursement, and leasing
The Company performs property management services for third-party property owners of real estate that consist of: (i) providing leasing services, (ii) property inspections, (iii) repairs and maintenance monitoring, and (iv) financial and accounting oversight. For these services, the Company earns management fees monthly, which are based on a fixed percentage of each managed property’s financial results, and is reimbursed for the labor costs incurred by its property management employees as services are rendered to the property owners. The Company determined that control over the services is passed to its customers simultaneously as performance occurs. Accordingly, management fee revenue is earned as the services are provided to the Company’s customers.
Lease commissions are earned when the Company, as a broker for the third party property owner, executes a lease agreement with a tenant. Based on the terms of the Company’s lease commission contracts, the Company's performance obligation to the customer has been completed upon execution of each lease agreement. The Company’s lease commissions are earned based on a fixed percentage of rental income generated for each executed lease agreement and there is no variable income component.
Development fee revenue is earned through two different sources: (i) the Company performs development services for third parties as an agent and earns fixed development fees based on a percentage of construction costs incurred over the construction period, and (ii) the Company acts as a general contractor on behalf of one of its managed real estate ventures. The Company acts as the principal construction company for the real estate ventures and records gross revenue as it provides construction services based on the quantifiable construction outputs.
In applying the cost based output method of revenue recognition, the Company uses the actual costs incurred relative to the total estimated costs to determine its progress towards contract completion and to calculate the corresponding gross revenue
F-25
The following is a summary of revenue earned by the Company’s reportable segments (see Note 19, ''Segment Information,” for further information) during the year ended December 31, 2020 (in thousands):
| Philadelphia CBD | Pennsylvania Suburbs | Austin, Texas | Metropolitan Washington, D.C. | Other | Corporate (a) | Total | |||||||||||||||||||||||||||||||||||
| Fixed rent | $ | $ | $ | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||||||||
| Variable rent | ( | ||||||||||||||||||||||||||||||||||||||||
| Total lease revenue | ( | ||||||||||||||||||||||||||||||||||||||||
| Amortization of deferred market rents | ( | ||||||||||||||||||||||||||||||||||||||||
| Daily parking & hotel flexible stay | |||||||||||||||||||||||||||||||||||||||||
| Total rents | ( | ||||||||||||||||||||||||||||||||||||||||
| Third party management fees, labor reimbursement and leasing | |||||||||||||||||||||||||||||||||||||||||
| Other income | |||||||||||||||||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||||
The following is a summary of revenue earned by the Company’s reportable segments (see Note 19, ''Segment Information,” for further information) during the year ended December 31, 2019 (in thousands):
| Philadelphia CBD | Pennsylvania Suburbs | Austin, Texas | Metropolitan Washington, D.C. | Other | Corporate (a) | Total | |||||||||||||||||||||||||||||||||||
| Fixed rent | $ | $ | $ | $ | $ | $ | ( | $ | |||||||||||||||||||||||||||||||||
| Variable rent | ( | ||||||||||||||||||||||||||||||||||||||||
| Total lease revenue | ( | ||||||||||||||||||||||||||||||||||||||||
| Amortization of deferred market rents | ( | ||||||||||||||||||||||||||||||||||||||||
| Daily parking & hotel flexible stay | |||||||||||||||||||||||||||||||||||||||||
| Total rents | ( | ||||||||||||||||||||||||||||||||||||||||
| Third party management fees, labor reimbursement and leasing | |||||||||||||||||||||||||||||||||||||||||
| Other income | |||||||||||||||||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||||||||||||||||
(a)Corporate includes intercompany eliminations necessary to reconcile to consolidated Company totals.
F-26
Income Taxes
Parent Company
The Parent Company has elected to be treated as a REIT under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”). In order to continue to qualify as a REIT, the Parent Company is required to, among other things, distribute at least 90% of its annual REIT taxable income to its shareholders and meet certain tests regarding the nature of its income and assets. As a REIT, the Parent Company is not subject to federal and state (in states that follow federal rules) income taxes with respect to the portion of its income that meets certain criteria and is distributed annually to its shareholders. Accordingly, a nominal provision for federal and state (as applicable) income taxes is included in the accompanying consolidated financial statements with respect to the operations of the Parent Company. The Parent Company intends to continue to operate in a manner that allows it to meet the requirements for taxation as a REIT. If the Parent Company fails to qualify as a REIT in any taxable year, it will be subject to federal and state (as applicable) income taxes and may not be able to qualify as a REIT for the four subsequent tax years. The Parent Company is subject to certain local income taxes. Provision for federal income taxes is recorded in the income tax provision line item and state and local income taxes have been included in operating expenses in the Parent Company’s consolidated statements of operations.
The tax basis of the Parent Company’s assets was $2.9 billion and $3.2 billion for the years ended December 31, 2020 and December 31, 2019, respectively.
The Parent Company is subject to a 4% federal excise tax if sufficient taxable income is not distributed within prescribed time limits. The excise tax equals 4% of the annual amount, if any, by which the sum of (a) 85% of the Parent Company’s ordinary income and (b) 95% of the Parent Company’s net capital gain exceeds cash distributions and certain taxes paid by the Parent Company. No excise tax was incurred in 2020, 2019 or 2018.
The Parent Company has elected to treat several of its subsidiaries as taxable REIT subsidiaries (each a “TRS”). A TRS is subject to federal, state and local income tax. In general, a TRS may perform non-customary services for tenants, hold assets that the Parent Company, as a REIT, cannot hold directly and generally may engage in any real estate or non-real estate related business. The Company’s taxable REIT subsidiaries did not have material tax provisions or deferred income tax items as of December 31, 2020 and December 31, 2019.
Operating Partnership
In general, the Operating Partnership is not subject to federal and state income taxes, and accordingly, no provision for income taxes has been made in the accompanying consolidated financial statements. The partners of the Operating Partnership are required to include their respective share of the Operating Partnership’s profits or losses in their respective tax returns. The Operating Partnership’s tax returns and the amount of allocable partnership profits and losses are subject to examination by federal and state taxing authorities. For any year beginning on or after January 1, 2017, the Operating Partnership can be assessed with federal income tax in the course of an audit by the IRS. Under the new partnership audit rules included in the Bipartisan Budget Act of 2015, the Operating Partnership has the option to make a push-out election and allocate the partnership adjustments to all the former partners for the tax year under audit.
The tax basis of the Operating Partnership’s assets was $2.9 billion and $3.2 billion for the years ended December 31, 2020 and December 31, 2019, respectively.
The Operating Partnership may elect to treat a subsidiary REIT under Sections 856 through 860 of the Code, if applicable. Each subsidiary REIT would be required to meet the requirements for treatment as a REIT under Sections 856 through 860 of the Code. If a subsidiary REIT fails to qualify as a REIT in any taxable year, that subsidiary REIT would be subject to federal and state income taxes and would not be able to qualify as a REIT for the four subsequent taxable years. Also, each subsidiary REIT would be subject to certain local income taxes.
The Operating Partnership has elected to treat several of its subsidiaries as TRSs, which are subject to federal, state and local income tax.
F-27
Earnings Per Share
Basic earnings per share (“EPS”) is computed by dividing net income available to common shareholders, as adjusted for unallocated earnings, if any, of certain securities, by the weighted average number of common shares outstanding during the year. Diluted EPS reflects the potential dilution that could occur from common shares issuable in connection with awards under share-based compensation plans, including upon the exercise of stock options, and conversion of the noncontrolling interests in the Operating Partnership. Anti-dilutive shares are excluded from the calculation.
Earnings Per Unit
Basic earnings per unit is computed by dividing net income available to common unitholders, as adjusted for unallocated earnings, if any, of certain securities issued by the Operating Partnership, by the weighted average number of common unit equivalents outstanding during the year. Diluted earnings per unit reflects the potential dilution that could occur from units issuable in connection with awards under share-based compensation plans, including upon the exercise of stock options. Anti-dilutive units are excluded from the calculation.
Comprehensive Income
Comprehensive income is recorded in accordance with the provisions of the accounting standard for comprehensive income. The accounting standard establishes standards for reporting comprehensive income and its components in the financial statements. Comprehensive income includes the effective portions of changes in the fair value of derivatives.
Accounting for Derivative Instruments and Hedging Activities
The Company accounts for its derivative instruments and hedging activities in accordance with the accounting standard for derivative and hedging activities. The accounting standard requires the Company to measure every derivative instrument (including certain derivative instruments embedded in other contracts) at fair value and record them on the balance sheet as either an asset or liability. See disclosures below related to the accounting standard for fair value measurements and disclosures.
For derivatives designated as cash flow hedges, the effective portions of changes in the fair value of the derivative are reported in other comprehensive income while the ineffective portions are recognized in earnings.
The Company actively manages its ratio of fixed-to-floating rate debt. To manage its fixed and floating rate debt in a cost-effective manner, the Company, from time to time, enters into interest rate swap agreements as cash flow hedges, under which it agrees to exchange various combinations of fixed and/or variable interest rates based on agreed upon notional amounts.
Fair Value Measurements
The Company estimates the fair value of its derivatives in accordance with the accounting standard for fair value measurements and disclosures. The accounting standard defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. It also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair
F-28
value. The standard describes three levels of inputs that may be used to measure fair value. Financial assets and liabilities recorded on the consolidated balance sheets are categorized based on the inputs to the valuation techniques as follows:
•Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that the Company has the ability to access;
•Level 2 inputs are inputs, other than quoted prices included in Level 1, which are observable for the asset or liability, either directly or indirectly. Level 2 inputs may include quoted prices for similar assets and liabilities in active markets, as well as inputs that are observable for the asset or liability (other than quoted prices), such as interest rates, foreign exchange rates, and yield curves that are observable at commonly quoted intervals; and
•Level 3 inputs are unobservable inputs for the asset or liability, which is typically based on an entity’s own assumptions, as there is little if any, related market activity or information.
In instances where the determination of the fair value measurement is based on inputs from different levels of the fair value hierarchy, the level in the fair value hierarchy within which the entire fair value measurement falls is based on the lowest level input that is significant to the fair value measurement in its entirety. The Company’s assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment, and considers factors specific to the asset or liability.
Risks and Uncertainties - COVID-19
Currently, one of the most significant risks and uncertainties the Company faces is the potential adverse effect of the ongoing global COVID-19 pandemic, which has significantly slowed global economic activity, caused significant volatility in financial markets, and resulted in unprecedented job losses, causing many to fear an imminent global recession. The responses of many countries, including the U.S., have included mandatory quarantines, restrictions on business activities, including construction activities, restrictions on group gatherings, restrictions on travel and mandatory closures. These actions are creating disruption in the global economy and supply chains and adversely impacting many industries, including owners and developers of real estate. Moreover, there is significant uncertainty around the breadth and duration of business disruptions related to the COVID-19 pandemic, as well as its impact on the U.S. economy and consumer confidence. Demand for space at the Company's properties is dependent on a variety of macroeconomic factors, such as employment levels, interest rates, changes in stock market valuations, rent levels and availability of competing space. The extent to which the COVID-19 pandemic impacts the Company's results will depend on future developments, many of which are highly uncertain and cannot be predicted, including new information which may emerge concerning the severity of COVID-19, future action plans, and vaccination efforts. The COVID-19 pandemic has caused continued negative economic impacts, market volatility, and business disruption, which could negatively impact the Company's tenants’ ability to pay rent, the Company's ability to lease vacant space, and the Company's ability to complete development and redevelopment projects. These consequences, in turn, could materially impact the Company's results of operations.
Recent Accounting Pronouncements
In May 2020, the SEC adopted amendments to requirements for companies relating to significant acquisitions and dispositions of businesses as well as amendments to the significance tests in the ‘significant subsidiary’ definition. Additionally, significant modifications were made to the requirements related to the presentation of pro forma financial information. The amendments are effective on January 1, 2021, with voluntary compliance permitted in advance of the effective date. The Company has elected to early adopt the amendments as of September 30, 2020.
On April 10, 2020, the FASB issued a Staff Q&A to respond to some frequently asked questions about accounting for lease concessions related to the effects of the COVID-19 pandemic. Consequently, for concessions related to the effects of the COVID-19 pandemic, an entity will not have to analyze each contract to determine whether enforceable rights and obligations for concessions exist in the contract and can elect to apply or not apply the lease modification guidance to those contracts. Entities may make the elections for any lessor-provided concession related to the effects of the COVID-19 pandemic (e.g., deferrals of lease payments, cash payments made to the lessee, reduced future lease payments) as long as the concession does not result in a substantial increase in the rights of the lessor or the obligations of the lessee. The Company has elected to account for lease concessions as though the enforceable rights and obligations for the concessions existed in the
F-29
original lease. To date, the impact of lease concessions granted has not had a material effect on the Company's financial statements. The Company continues to evaluate the impact of lease concessions and the appropriate accounting for those concessions.
In March 2020, the FASB issued ASU 2020-04 Reference Rate Reform (Topic 848) Facilitation of the Effects of Reference Rate Reform on Financial Reporting. The amendments provide practical expedients for reference rate reform related activities that impact debt, leases, derivatives and other contracts. The guidance is optional and is effective between March 12, 2020 and December 31, 2022. The guidance may be elected over time as reference rate reform activities occur. The Company continues to evaluate the impact of the guidance and may apply elections as applicable as additional changes in the market occur.
In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments Credit Losses (Topic 326), which changes how entities measure credit losses for most financial assets and certain other instruments that are not measured at fair value through net income. The guidance replaces the current incurred loss model with an expected loss approach, resulting in more timely recognition of such losses. In November 2018, the FASB released ASU 2018-19, Codification Improvements to Topic 326, Financial Instrument - Credit Losses, which clarifies that receivables arising from operating leases are not within the scope of Subtopic 326-20. The guidance was effective for the Company as of January 1, 2020. The Company adopted ASU 2016-13 effective January 1, 2020 and it did not have a material impact on the consolidated financial statements.
3. REAL ESTATE INVESTMENTS
| December 31, 2020 | December 31, 2019 | ||||||||||
| Land | $ | $ | |||||||||
| Building and improvements | |||||||||||
| Tenant improvements | |||||||||||
| Total | $ | $ | |||||||||
Construction-in-Progress
Internal direct construction costs totaling $8.4 million in 2020, $7.4 million in 2019, and $7.0 million in 2018 and interest totaling $4.6 million in 2020, $3.2 million in 2019, and $3.6 million in 2018 were capitalized related to the development of certain properties and land holdings.
During the years ended December 31, 2020, 2019 and 2018, the Company’s internal direct construction costs are comprised entirely of capitalized salaries. The following table shows the amount of compensation costs (including bonuses and benefits) capitalized for the years presented (in thousands):
| December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Development | $ | $ | $ | ||||||||||||||
| Redevelopment | |||||||||||||||||
| Tenant Improvements | |||||||||||||||||
| Total | $ | $ | $ | ||||||||||||||
F-30
2020 Acquisitions
The following table summarizes the property acquisitions during the year ended December 31, 2020 (dollars in thousands):
| Property/Portfolio Name | Acquisition Date | Location | Property Type | Rentable Square Feet/Acres | Purchase Price (a) | |||||||||||||||||||||||||||
| 145 King of Prussia Road | February 27, 2020 | Radnor, PA | Land | $ | ||||||||||||||||||||||||||||
| 1505-11 Race Street | November 5, 2020 | Philadelphia, PA | Office | $ | ||||||||||||||||||||||||||||
| 250 King of Prussia Road (b) | November 30, 2020 | Radnor, PA | Office | $ | ||||||||||||||||||||||||||||
(a)Exclusive of transaction costs and price adjustments. See purchase price allocation table below for a breakout of the net purchase price for wholly owned properties.
(b)This property was placed into redevelopment and is therefore included within Construction-in-progress on the consolidated balance sheets.
The Company accounted for the acquisition of 1501-11 Race Street as an asset acquisition and therefore capitalized $0.3 million of acquisition related costs. The Company utilized a number of sources in making estimates of fair value (including comparative sales transactions and market leasing assumptions) for purposes of allocating the purchase price to tangible and intangible assets acquired The acquisition values have been allocated as follows (in thousands):
| 1505-11 Race Street | |||||
| Building, land and improvements | $ | ||||
| Intangible assets acquired | |||||
| Below market lease liabilities assumed | ( | ||||
| Total unencumbered acquisition value | |||||
| Amortization period of intangible assets | |||||
| Amortization period of below market liabilities assumed | |||||
2019 Acquisitions
During the year ended December 31, 2019, the Company did not acquire any properties from a third party.
2018 Acquisitions
On December 19, 2018, the Company acquired an office property containing 120,559 rentable square feet located at 4516 Seton Center Parkway in Austin, Texas, known as Quarry Lake II, for a gross purchase price of $39.5 million.
On December 11, 2018, the Company acquired from DRA Advisors (“DRA”), its 50 % ownership interest in the G&I Austin Office LLC real estate venture (the "Austin Venture”) for an aggregate purchase price of $535.1 million. The Austin Venture owned twelve office properties (“the Austin Venture Portfolio”) containing an aggregate 1,570,123 square feet located in Austin, Texas. As a result of the acquisition, the Company acquired complete ownership of the Austin Venture Portfolio. The aggregate purchase price reflects the sum of: (i) the amount of such investment plus (ii) a $103.8 million non-cash accounting remeasurement gain related to the Company’s original investment in the Austin Venture Portfolio, reflected in the “Net gain on real estate venture transactions” in the consolidated statements of operations plus (iii) $28.3 million on account of the value of the Company’s promoted interest in the Austin Venture plus (iv) $14.6 million on account of the carrying amount of the Company’s original investment in the Austin Venture Portfolio. At settlement, the Company assumed $115.5 million of mortgage debt and received a credit at settlement of $130.7 million for a note receivable provided to the Austin Venture on November 1, 2018. This note receivable was used to repay one of Austin Venture’s mortgage loans prior to the December 11, 2018 acquisition date. The Company also obtained working capital of $24.9 million. Subsequent to receiving cash proceeds for its promoted interest in the Austin Venture and recognizing a remeasurement gain, the Company funded the acquisition with an aggregate cash payment of $117.3 million. Additionally, the assumed mortgage debt of $115.5 million was repaid at settlement. Both cash payments were funded through borrowings under the Company’s unsecured credit facility. The Company recognized a $28.3 million gain on its promoted interest in the Austin Venture, reflected in the caption “Gain on promoted interest in unconsolidated real estate venture” in the consolidated statements of operations. The gain on promoted
F-31
interest was based off of the returns earned over the duration of the Austin Venture and the returns were determined based on operating results and real estate valuation of the venture.
The Company previously accounted for its 50 % non-controlling interest in the Austin Venture under the equity method of accounting. As a result of the Company’s acquisition of DRA’s 50 % ownership interest in the Austin Venture, the Company obtained control of Austin Venture and the Company’s existing investment balance was remeasured based on the fair value of the underlying properties acquired and the existing distribution provisions under the relevant partnership agreement, including the Company’s entitlement to a distribution on account of its promoted interest.
On June 29, 2018, the Company acquired, through a 99-year ground lease, the leasehold interest in a one -acre land parcel, located at 3025 JFK Boulevard, in Philadelphia, Pennsylvania. The Company prepaid $15.0 million of ground lease rent and, in accordance with ASC 840, capitalized $0.3 million of costs related to entering the lease. Additionally, the ground lease required the Company to pay $5.6 million for a leasehold valuation credit, which can be applied to increase the density of the projects subject to the Schuylkill Yards Project master development agreement. Of this credit, $2.4 million will be applied to the development of 3001-3003 and 3025 JFK Boulevard if the Company constructs a minimum of 1.2 million square feet of floor area ratio (“FAR”) on these land parcels. The remaining credit of $3.2 million can be used for development in excess of 1.2 million FAR at 3001-3003 and 3025 JFK Boulevard or toward future ground lease takedowns at the Schuylkill Yards Development Site. This $3.2 million credit is reimbursed if the master development agreement is terminated by the landowner. Based on the Company’s evaluation under ASC 840, the ground lease is classified as an operating lease. The ground lease and credit are included in the “Prepaid leasehold interests in land held for development, net” and “Other assets” captions, respectively, in the consolidated balance sheets.
On March 22, 2018, the Company acquired, through a 99-year ground lease, the leasehold interest in a one -acre land parcel, located at 3001-3003 JFK Boulevard, in Philadelphia, Pennsylvania. The Company prepaid $24.6 million of ground lease rent and capitalized $0.3 million of costs related to entering the lease. The ground lease is classified as an operating lease and included in the “Prepaid leasehold interests in land held for development, net,” caption in the consolidated balance sheets.
On January 5, 2018, the Company acquired, from its then partner in each of the Four Tower Bridge real estate venture and the Seven Tower Bridge real estate venture, the partner’s 35 % ownership interest in the Four Tower Bridge real estate venture in exchange for the Company's 20 % ownership interest in the Seven Tower Bridge real estate venture. As a result of this non-monetary exchange, the Company acquired 100 % of the Four Tower Bridge real estate venture, which owns an office property containing 86,021 square feet, in Conshohocken, Pennsylvania, encumbered with $9.7 million in debt. The Company previously accounted for its noncontrolling interest in Four Tower Bridge using the equity method. As a result of the exchange transaction, the Company obtained control of the Four Tower Bridge property.
The Company’s acquisition of the 35 % ownership interest in Four Tower Bridge from its former partner resulted in the consolidation of the property. The unencumbered acquisition value of $23.6 million was determined under the comparative sales approach, which utilized observable transactions within the Conshohocken submarket.
F-32
The acquisition values have been allocated as follows (in thousands):
| Quarry Lake II | Austin Venture Portfolio | Four Tower Bridge | |||||||||||||||
| Acquisition Date | 12/19/2018 | 12/11/2018 | 1/5/2018 | ||||||||||||||
| Building, land and improvements | $ | $ | $ | ||||||||||||||
| Intangible assets acquired | |||||||||||||||||
| Below market lease liabilities assumed | ( | ( | ( | ||||||||||||||
| Deferred gain (a) | |||||||||||||||||
| Total unencumbered acquisition value | $ | $ | $ | ||||||||||||||
| Mortgage debt assumed - at fair value (b) | ( | ||||||||||||||||
| Total encumbered acquisition value | $ | $ | $ | ||||||||||||||
| Total unencumbered acquisition value | |||||||||||||||||
| Mortgage debt assumed - at fair value (b) | ( | ||||||||||||||||
| Mortgage debt repaid at settlement (c) | ( | ||||||||||||||||
| Investment in unconsolidated real estate ventures | ( | ( | |||||||||||||||
| Gain on promoted interest in unconsolidated real estate venture | ( | ||||||||||||||||
| Gain on real estate venture transactions | ( | ( | |||||||||||||||
| Purchase price reduction for note receivable (d) | ( | ||||||||||||||||
| Net working capital assumed | ( | ( | |||||||||||||||
| Total cash payment at settlement | $ | $ | $ | ||||||||||||||
| Weighted average amortization period of intangible assets | |||||||||||||||||
| Weighted average amortization period of below market liabilities assumed | |||||||||||||||||
(a)Represents a deferred gain recognized at settlement, which resulted in a reduction of the acquisition value.
(b)The outstanding principal balance on mortgage debt for Four Tower Bridge, assumed on January 5, 2018, was $9.7 million.
(c)On December 11, 2018, the Company assumed $115.5 million of mortgage debt which was repaid in full at settlement.
(d)Represents a note receivable due from the DRA Austin Venture that represents a purchase price reduction.
Quarry Lake II contributed approximately $0.1 million of revenue and $0.1 million of net income, included in the Company’s consolidated statements of operations, for the twelve-month period ended December 31, 2018.
Austin Venture Portfolio contributed approximately $3.4 million of revenue and $1.3 million of net loss, included in the Company’s consolidated statements of operations, for the twelve-month period ended December 31, 2018.
Four Tower Bridge contributed approximately $2.8 million of revenue and $0.3 million of net income, included in the Company’s consolidated statements of operations, for the twelve-month period ended December 31, 2018.
The unaudited pro forma information below summarizes the Company’s combined results of operations for the years ended December 31, 2018 and December 31, 2017, respectively, as though the acquisition of the Austin Venture Portfolio was completed on January 1, 2017. The supplemental pro forma operating data is not necessarily indicative of what the actual results of operations would have been assuming the transaction had been completed as set forth above, nor do they purport to represent the Company’s results of operations for future periods (in thousands).
| December 31, | |||||||||||
| 2018 | 2017 | ||||||||||
| Pro forma revenue | $ | $ | |||||||||
| Pro forma net income | |||||||||||
| Pro forma net income available to common shareholders | |||||||||||
F-33
Dispositions
The following table summarizes the property dispositions during the years ended December 31, 2020, 2019 and 2018 (dollars in thousands):
| Property/Portfolio Name | Disposition Date | Location | Property Type | Rentable Square Feet/Acres | Sales Price | Gain/(Loss) on Sale (a) | ||||||||||||||||||||||||||||||||
| Mid-Atlantic Office Portfolio (b) (g) | December 21, 2020 | Various | Office | $ | $ | |||||||||||||||||||||||||||||||||
| One and Two Commerce Square (c) | July 21, 2020 | Philadelphia, PA | Office | $ | $ | |||||||||||||||||||||||||||||||||
| Keith Valley | June 15, 2020 | Horsham, PA | Land | $ | $ | |||||||||||||||||||||||||||||||||
| 52 East Swedesford Road | March 19, 2020 | Malvern, PA | Office | $ | $ | |||||||||||||||||||||||||||||||||
| 1900 Gallows Rd | September 11, 2019 | Vienna, VA | Office | $ | $ | ( | ||||||||||||||||||||||||||||||||
| 9 Presidential Boulevard | March 15, 2019 | Bala Cynwyd, PA | Land | $ | $ | |||||||||||||||||||||||||||||||||
| Subaru National Training Center (d) | December 21, 2018 | Camden, NJ | Mixed-use | $ | $ | |||||||||||||||||||||||||||||||||
| Rockpoint Portfolio (e) | December 20, 2018 | Herndon, VA | Office | $ | $ | |||||||||||||||||||||||||||||||||
| 20 East Clementon Road | June 21, 2018 | Gibbsboro, NJ | Office | $ | $ | ( | ||||||||||||||||||||||||||||||||
| Garza Ranch - Office (f) | March 16, 2018 | Austin, TX | Land | $ | $ | |||||||||||||||||||||||||||||||||
| Westpark Land | January 10, 2018 | Durham, NC | Land | $ | $ | |||||||||||||||||||||||||||||||||
(a)Gain/(Loss) on Sale is net of closing and other transaction related costs.
(b)The Company sold a 60 % equity interest in a portfolio of twelve suburban office properties containing an aggregate of 1.1 million square feet ("Mid-Atlantic Office Portfolio"), nine of which are located in the Pennsylvania suburbs and three of which are located in Maryland, to an unrelated third party for a gross sales price of $192.9 million. The transaction resulted in deconsolidation of the properties and formation of PA/MD NNN Office JV, LLC ("Mid-Atlantic Office JV"). The Company recorded its investment at fair value and recognized a gain of $15.2 million in "Net gain on disposition of real estate" on the Consolidated Statements of Operations. See Note 4, ''Investment in Unconsolidated Real Estate Ventures," for further information.
(c)The Company sold a 30 % preferred equity interest in two office buildings located in Philadelphia, Pennsylvania, to an unrelated third party for $115.0 million (the "Commerce Square Venture Transaction"), which resulted in deconsolidation of the properties and formation of Brandywine Commerce I LP and Brandywine Commerce II LP (collectively, the "Commerce Square Venture"). The transaction valued the properties at $600.0 million. The Company recorded its investment at fair value and recognized a gain of $271.9 million in "Net gain on disposition of real estate" on the Consolidated Statements of Operations. See Note 4, ''Investment in Unconsolidated Real Estate Ventures," for further information.
(d)During the third quarter of 2018, the tenant, Subaru, exercised its purchase option for the Subaru National Training Center Development. The lease with Subaru was classified as a direct finance lease within "Other assets" on the consolidated balance sheets. In connection with the lease, the Company recognized $1.6 million in interest income during the twelve months ended December 31, 2018, in accordance with accounting guidance for direct finance leases under ASC 840.
(e)For information related to this transaction, see the “Herndon Innovation Center Metro Portfolio Venture, LLC” section in Note 4, “Investment in Unconsolidated Real Estate Ventures.”
(f)The Company had continuing involvement in this property through a completion guaranty, which required the Company, as developer, to complete certain infrastructure improvements on behalf of the buyers of the land parcel. The Company recorded the cash received at settlement as “Deferred income, gains and rent” on the consolidated balance sheet. The Company subsequently recognized the land sale and the $3.0 million gain on sale during the twelve months ended December 31, 2018 upon substantial completion of the infrastructure improvements and transfer of control to the buyer.
During the year ended December 31, 2019, the Company also recorded a $1.0 million gain related to contingent consideration received related to a land sale that closed in a prior period in the Other segment. The Company also received additional proceeds from a sale that closed in a prior year related to a property in the Metropolitan Washington, D.C. segment resulting in $0.7 million of additional gain on sale.
Held for Use Impairment
As of December 31, 2020 and 2019, the Company evaluated the recoverability of the carrying value of its properties that triggered assessment. Based on the analysis, no
As of December 31, 2018, the Company evaluated the recoverability of the carrying values of certain properties that triggered an assessment under the undiscounted cash flow model. Based on its evaluation, the Company determined it would not
F-34
recover the carrying value of one property in its Other segment, 1900 Gallows Road, located in Vienna, Virginia, due to a reduction in the intended hold period. Accordingly, the Company recorded an impairment of $14.8 million at December 31, 2018, reflected in the results for the twelve months ended December 31, 2018, which reduced the carrying value of the property from $52.8 million to its estimated fair value of $38.0 million. The Company measured this impairment based on a discounted cash flow analysis, using a hold period of ten years and a residual capitalization rate and discount rate of 7.5 % and 9.5 %, respectively. The result was comparable to indicative pricing in the market.
Held for Sale
As of both December 31, 2020 and 2019, the Company determined that the sale of two parcels of land within the Other segment totaling 35.2 acres was probable and classified these properties as held for sale. As such, $7.3 million was classified as “Assets held for sale, net” on the consolidated balance sheets as of December 31, 2020 and 2019.
As of December 31, 2020 and 2019, the fair value less the anticipated costs of sale of the properties exceeded the carrying values. The fair value of the properties is based on the pricing in the purchase and sale agreement.
Held for Sale Impairment
During the year ended December 31, 2018, the Company determined that the sale of eight office properties, known as the Rockpoint Portfolio, containing 1,293,197 rentable square feet, in the Metropolitan Washington, D.C. segment, was probable and classified these properties as held for sale and, as a result, recognized an impairment of $56.9 million. The Company measured this impairment based on a discounted cash flow analysis, using a hold period of ten years and residual capitalization rates and discount rates of 7.47 % and 8.60 %, respectively. The results were comparable to indicative pricing in the market. The Rockpoint Portfolio was sold during the fourth quarter of 2018. See the “Dispositions” section above for further information relating to this sale.
4. INVESTMENT IN UNCONSOLIDATED REAL ESTATE VENTURES
As of December 31, 2020, the Company held ownership interests in nine unconsolidated real estate ventures for an aggregate investment balance of $389.8 million, which includes a negative investment balance in one unconsolidated real estate venture of $11.5 million, reflected within 'Other liabilities' on the consolidated balance sheets. The Company formed or acquired interests in the Real Estate Ventures with unaffiliated third parties to develop or manage office, residential and/or mixed-use properties or to acquire land in anticipation of possible development of office, residential and/or mixed-use properties. As of December 31, 2020, five of the real estate ventures owned properties that contained an aggregate of approximately 8.4 million net rentable square feet of office space; two real estate ventures owned 1.4 acres of land held for development; one real estate venture owned 1.3 acres of land in active development; and one real estate venture owned a residential tower that contains 321 apartment units.
The Company accounts for its interests in the Real Estate Ventures, which range from 15 % to 70 %, using the equity method. Certain of the Real Estate Ventures are subject to specified priority allocations of distributable cash.
The Company earned management fees from the Real Estate Ventures of $4.7 million, $4.3 million and $6.3 million for the years ended December 31, 2020, 2019 and 2018, respectively.
The Company earned leasing commission income from the Real Estate Ventures of $1.1 million, $1.7 million and $2.5 million for the years ended December 31, 2020, 2019 and 2018, respectively.
The Company has outstanding accounts receivable balances from the Real Estate Ventures of $1.2 million and $0.8 million as of December 31, 2020 and 2019, respectively.
The amounts reflected in the following tables (except for the Company’s share of equity in income) are based on the historical financial information of the individual real estate ventures. The Company records operating losses of a real estate venture in excess of its investment balance if the Company is liable for the obligations of the real estate venture or is otherwise committed to provide financial support to the real estate venture.
F-35
The Company’s investment in the Real Estate Ventures as of December 31, 2020 and 2019, and the Company’s share of the Real Estate Ventures’ income (loss) for the years ended December 31, 2020 and 2019 was as follows (in thousands):
| Ownership Percentage | Carrying Amount | Company's Share of Real Estate Venture Income (Loss) | Real Estate Venture Debt at 100%, gross | ||||||||||||||||||||||||||||||||||||||
| 2020 | 2019 | 2020 | 2019 | 2020 | 2019 | ||||||||||||||||||||||||||||||||||||
| Office Properties | |||||||||||||||||||||||||||||||||||||||||
| Commerce Square Venture | $ | $ | $ | ( | $ | $ | $ | ||||||||||||||||||||||||||||||||||
| Mid-Atlantic Office Venture | |||||||||||||||||||||||||||||||||||||||||
| Brandywine - AI Venture LLC | ( | ||||||||||||||||||||||||||||||||||||||||
| Herndon Innovation Center Metro Portfolio Venture, LLC | ( | ( | |||||||||||||||||||||||||||||||||||||||
| MAP Venture | ( | ( | ( | ( | |||||||||||||||||||||||||||||||||||||
| PJP VII | |||||||||||||||||||||||||||||||||||||||||
| PJP II | |||||||||||||||||||||||||||||||||||||||||
| PJP VI | ( | ||||||||||||||||||||||||||||||||||||||||
| Other | |||||||||||||||||||||||||||||||||||||||||
| 1919 Venture | |||||||||||||||||||||||||||||||||||||||||
| Development Properties | |||||||||||||||||||||||||||||||||||||||||
| 4040 Wilson Venture (c) | ( | ( | |||||||||||||||||||||||||||||||||||||||
| JBG - 51 N Street (c) | ( | ( | |||||||||||||||||||||||||||||||||||||||
| JBG - 1250 First Street Office (c) | ( | ( | |||||||||||||||||||||||||||||||||||||||
| $ | $ | $ | ( | $ | ( | $ | $ | ||||||||||||||||||||||||||||||||||
(a)Ownership percentage represents the Company’s combined interest including preferred and common equity holdings. See "Commerce Square Venture" and "Mid-Atlantic Office JV" sections below for more information.
(b)On October 29, 2019, the Company sold its interest in PJP II, PJP VI and PJP VII. See "PJP Ventures" section below for more information on the disposal.
(c)This entity is a VIE.
The following is a summary of the financial position of the Real Estate Ventures as of December 31, 2020 and December 31, 2019 (in thousands):
| December 31, 2020 | December 31, 2019 | ||||||||||
| Net property | $ | $ | |||||||||
| Other assets | |||||||||||
| Other liabilities | |||||||||||
| Debt, net | |||||||||||
| Equity (a) | |||||||||||
(a)This amount does not include the effect of the basis difference between the Company's historical cost basis and the basis recorded at the real estate venture level, which is typically amortized over the life of the related assets and liabilities. Basis differentials occur from the impairment of investments, purchases of third party interests in existing real estate ventures and upon the transfer of assets that were previously owned by the
F-36
Company into a real estate venture. In addition, certain acquisition, transaction and other costs may not be reflected in the net assets at the real estate venture level.
The following is a summary of results of operations of the Real Estate Ventures in which the Company had interests during the twelve-month periods ended December 31, 2020, 2019 and 2018 (in thousands):
| Year Ended December 31, | |||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||
| Revenue | $ | $ | $ | ||||||||||||||
| Operating expenses | ( | ( | ( | ||||||||||||||
| Interest expense, net | ( | ( | ( | ||||||||||||||
| Depreciation and amortization | ( | ( | ( | ||||||||||||||
| Provision for impairment | ( | ( | |||||||||||||||
| Loss on extinguishment of debt | ( | ( | |||||||||||||||
| Net loss | $ | ( | $ | ( | $ | ( | |||||||||||
| Ownership interest % | Various | Various | Various | ||||||||||||||
| Company's share of net loss | $ | ( | $ | ( | $ | ( | |||||||||||
| Other-than-temporary impairment | ( | ||||||||||||||||
| Basis adjustments and other | ( | ( | |||||||||||||||
| Equity in loss of Real Estate Ventures | $ | ( | $ | ( | $ | ( | |||||||||||
As of December 31, 2020, the aggregate principal payments of the Real Estate Ventures recourse and non-recourse debt payable to third-parties are as follows (in thousands):
| 2021 | $ | ||||
| 2022 | |||||
| 2023 | |||||
| 2024 | |||||
| 2025 | |||||
| Thereafter | |||||
| Total principal payments | |||||
| Net deferred financing costs | ( | ||||
| Net original issue premium | |||||
| Outstanding indebtedness | $ | ||||
Mid-Atlantic Office JV
On December 21, 2020, the Company contributed a portfolio of twelve properties containing an aggregate of 1,128,645 square feet, nine of which are located in the Pennsylvania suburbs segment and three located in the Metropolitan Washington, D.C segment, to the Mid-Atlantic Office JV, for a gross sales price of $192.9 million. After the transaction, the Company owns approximately 25 % of the equity interest in the Mid-Atlantic Office JV through a $20.0 million preferred equity holding and approximately 15 % of the equity interest through a common equity interest (representing 20 % of the total common equity), for a combined approximately 40 % equity interest in the venture. On the closing date, Mid-Atlantic Office JV also obtained $147.4 million of third-party debt financing secured by the twelve properties within the venture, with an initial advance of $120.8 million. The loan bears interest at LIBOR + 3.15 % capped at a total maximum interest rate of 5.6 % and matures on January 9, 2024.
Based on the facts and circumstances at the formation of the Mid-Atlantic Office JV, the Company determined that the venture is not a VIE in accordance with the accounting standard for the consolidation of VIEs. As a result, the Company used the voting interest model under the accounting standard for consolidation in order to determine whether to consolidate the Mid-Atlantic Office JV. Based upon each member's substantive participating rights over the activities of the Mid-Atlantic Office JV under the operating and related agreements of the Mid-Atlantic Office JV, it is not consolidated by the Company, and is accounted for under the equity method of accounting. As a result, the Company measured its equity interest at fair value based on the fair value of the Mid-Atlantic Office JV properties and the distribution provisions of the real estate venture
F-37
agreement. Since the Company retains a non-controlling interest in the Mid-Atlantic Office JV and there are no other facts and circumstances that preclude the consummation of a sale, the contribution qualifies as a sale of a nonfinancial asset under the relevant guidance.
Commerce Square Venture
On July 21, 2020, the Company sold a 30 % preferred equity interest in the entities that own One Commerce Square and Two Commerce Square. After the transaction, the Company owns approximately 32 % of the equity interest in Commerce Square Venture through preferred equity interest holdings and approximately 38 % of the equity interest in Commerce Square Venture as the sole common equity holder, for a combined approximately 70 % equity interest in the venture. The properties held by the venture remain encumbered by the existing mortgages, which had a $222.1 million principal balance outstanding on the transaction date.
Based on the facts and circumstances at the formation of the Commerce Square Venture, the Company determined that the venture is not a VIE. As a result, the Company used the voting interest model under the accounting standard for consolidation in order to determine whether to consolidate the Commerce Square Venture. Based upon each member's substantive participating rights over the activities of the Commerce Square Venture under the operating and related agreements of the Commerce Square Venture, the Company does not have a controlling interest in the properties as the third party investor holds substantive participating rights in the properties. Therefore, the Company deconsolidated the properties and the venture is accounted for under the equity method of accounting. As a result, the Company measured its equity interest at fair value based on the fair value of the Commerce Square Venture properties and the distribution provisions of the real estate venture agreement. Since the Company retains a non-controlling interest in the Commerce Square Venture and there are no other facts and circumstances that preclude sale recognition, the contribution qualifies as the sale of a nonfinancial asset under the relevant guidance.
Under the conventional approach of accounting for equity method investments, an investor applies its percentage ownership interest to the venture’s net income or loss to determine the investor’s share of the earnings or losses of the venture. This approach is inappropriate if the venture’s capital structure gives different rights and priorities to its investors. Therefore, the Company follows the hypothetical liquidation at book value (“HLBV”) method in determining its share of the Commerce Square Venture’s earnings or losses for the reporting period as this method better reflects the Company’s claim on the venture’s book value at the end of each reporting period. Earnings for this equity method investment are recognized in accordance with the real estate venture agreement and, where applicable, based upon the allocation of the investment’s net assets at book value as if the investment was hypothetically liquidated at the end of each reporting period.
PJP Ventures
On October 29, 2019, PJP II, PJP VII and PJP VI, three real estate ventures in which the Company owned a 25 %-30 % interest, each sold its sole operating office property, totaling 204,347 rentable square feet in Charlottesville, Virginia, at an aggregate sales price of $51.0 million. The Company received cash proceeds of $9.1 million after closing costs and related debt payoffs. The Company recorded an $8.0 million gain within the caption "Net gains on real estate venture transactions" within its consolidated statements of operations for the year ended December 31, 2019.
Herndon Innovation Center Metro Portfolio Venture, LLC
On December 20, 2018, the Company contributed a portfolio of eight properties containing an aggregate of 1,293,197 square feet, located in its Metropolitan Washington, D.C. segment, to a newly-formed joint venture, known as the Herndon Innovation Center Metro Portfolio Venture, LLC (“Herndon Innovation Center”), for a gross sales price of $312.0 million. The Company and its partner own 15 % and 85 % interests in the Herndon Innovation Center, respectively. The Herndon Innovation Center funded the acquisition with $265.2 million of cash, which was distributed to the Company at closing. After funding its share of closing costs and working capital contributions of $2.2 million and $0.6 million, respectively, the Company received $262.4 million of cash proceeds at settlement and was given a $47.7 million capital credit for its share of the fair value of the Herndon Innovation Center. The Company recorded an impairment charge of $56.9 million for the Herndon Innovation Center during the third quarter of 2018. The Company recorded a $0.4 million gain on sale, which represents an adjustment to estimated closing costs used to determine the impairment charge in the third quarter of 2018. As part of the transaction, the Company’s subsidiary management company executed an agreement with the Herndon Innovation Center to provide property management and leasing services to the Herndon Innovation Center.
F-38
On March 29, 2019, Herndon Innovation Center obtained $134.1 million of third-party debt financing, secured by four properties within the venture, with an initial advance of $113.1 million. The remaining funds available under the loan have not yet been drawn. The Company received $16.7 million for its share of the cash proceeds on April 12, 2019. The loan bears interest at LIBOR + 1.95 % capped at a total maximum interest rate of 5.45 % - 6.45 % over the term of the loan and matures on March 29, 2024. On April 11, 2019, the venture obtained an additional $115.3 million of third-party debt financing secured by the remaining four properties within the venture, with an initial advance of $94.2 million. The remaining funds available under the loan have not yet been drawn. The loan bears interest at LIBOR + 1.80 % capped at a total maximum interest rate of 6.3 % and matures on April 11, 2024. On April 12, 2019, the Company received $13.8 million for its share of the cash proceeds from the financing.
Austin Venture
The Austin Venture owned twelve office properties containing an aggregate 1,570,123 square feet located in Austin, Texas.
On October 16, 2013, the Company contributed a portfolio of seven office properties containing an aggregate of 1,398,826 rentable square feet located in Austin, Texas (the “Austin Properties”) to a newly-formed joint venture with G&I VII Austin Office LLC (“DRA”). DRA and the Company agreed to an aggregate gross sales price of $330.0 million subject to an obligation on the Company’s part to fund the first $5.2 million of post-closing capital expenditures, of which $0.8 million was funded by the Company during 2013 and the remaining $4.4 million was funded by the Company during the twelve months ended December 31, 2014. DRA owned a 50 % interest in the Austin Venture and the Company owned a 50 % interest in the Austin Venture, subject to the Company’s right to receive up to an additional 10 % of distributions.
The Company measured its equity interest at fair value based on the fair value of the Austin Properties and the distribution provisions of the real estate venture agreement. Since the Company retained a noncontrolling interest in the Austin Properties and there were no other facts and circumstances that precluded the consummation of a sale, the contribution qualified as a partial sale of real estate under the relevant guidance for sales of real estate.
On December 11, 2018, the Company acquired DRA’s 50 % ownership interest in the Austin Venture for an aggregate purchase price of $535.1 million. On the sale date, the Austin Venture owned twelve office properties containing an aggregate 1,570,123 square feet, located in Austin, Texas. See Note 3, ''Real Estate Investments," for further information.
Brandywine - AI Venture
As of December 31, 2020 Brandywine - AI Venture (BDN - AI Venture) consists of one office property located in Metropolitan D.C. segment located at 3141 Fairview Park Drive. During 2019, BDN AI Venture recorded a $5.6 million held for use impairment charge related to 3141 Fairview Park Drive. The Company’s share of the impairment charge was $2.8 million which is reflected in “Equity in loss of Real Estate Ventures” in the consolidated statements of operations for the year ended December 31, 2019.
During 2019, BDN - AI Venture transferred an office building located in Falls Church, Virginia containing 180,659 rentable square feet to the mortgage lender in full satisfaction of the lender’s outstanding $26.0 million mortgage loan. The mortgage loan was nonrecourse to the Company. The Company recognized its $2.2 million share of the gain on debt forgiveness in "Net gain on real estate venture transactions" in the consolidated statements of operations for the year ended December 31, 2019.
During 2018, BDN - AI Venture sold three office properties containing 510,202 rentable square feet located in Silver Spring, MD (“Station Square”) for a gross sales price of $107.0 million. At the time of sale, the properties were encumbered by a mortgage of $66.5 million, which was repaid in full at closing, resulting in a debt prepayment penalty of $0.7 million. After mortgage payoff and closing costs, BDN - AI Venture received cash proceeds of $34.8 million, of which, the Company received $17.4 million and recognized a $1.5 million gain on the sale.
Additionally, in 2018, BDN - AI Venture recorded a $20.8 million held for use impairment charge related to 3141 Fairview Park Drive and 3130 Fairview Park Drive, the two then-remaining properties held by the venture. The Company’s share of the impairment charge was $10.4 million which was recognized in “Equity in loss of Real Estate Ventures” in the consolidated statements of operations for the year ended December 31, 2018. Based on the Company’s evaluation of the fair value of its investment in BDN - AI Venture subsequent to the disposition of Station Square, the Company determined that a persistent weak demand for office space and intense competition for tenants at the two remaining properties had reduced the fair value of the investment below the carrying value. As a result, the Company recorded an other than temporary impairment
F-39
of $4.1 million which was recognized in “Equity in Loss of Real Estate Ventures” in the consolidated statements of operations for the year ended December 31, 2018. The Company measured this impairment based on a discounted cash flow analysis, using a hold period of 10 years, a residual capitalization rate of 8.0 % and discount rates ranging from 9.0 % to 9.5 %.
MAP Venture
The MAP Venture owns 58 office properties that contain an aggregate of 3,924,783 square feet located in the Pennsylvania Suburbs, New Jersey/Delaware, Metropolitan Washington, D.C. and Richmond, Virginia ("MAP Venture"). The MAP Venture was formed as a limited liability company in which the Company has been designated as the Managing Member. In addition, through an affiliate, the Company provides property management services at the Buildings on behalf of the MAP Venture for a market based management fee.
The MAP Venture leases the land parcels under the 58 office properties through a ground lease that extends through February 2115. Annual payments by the MAP Venture, as tenant under the ground leases, initially total $11.9 million and increase 2.5 % annually through November 2025. Thereafter, annual rental payments increase by 2.5 % or CPI at the discretion of the lessor. Upon adoption of Topic 842, Leases, on January 1, 2019, the MAP Venture determined that the carrying amount of the right of use asset was greater than the fair value of the underlying right of use asset. The fair value of the underlying right of use asset was determined using the purchase price paid by a third-party to acquire the ground lease. As a result, MAP Venture recorded a $9.2 million cumulative effect of accounting change adjustment simultaneously with the recording of the right of use asset to reduce the value of the right of use asset to its estimated fair value. The Company recorded its $4.6 million proportionate share of the cumulative effect of accounting change adjustment through "Cumulative earnings” on its consolidated balance sheets.
On August 1, 2018, MAP Venture refinanced its $180.8 million third party debt financing, secured by the buildings of MAP Venture and maturing February 9, 2019, with $185.0 million third party debt financing, also secured by the buildings, bearing interest at LIBOR + 2.45 % and maturing on August 1, 2023. The interest rate is swapped to a fixed rate of 2.66% through the maturity date.
1919 Venture
1919 Venture owns a 29 -story, 455,000 square foot mixed-use tower consisting of 321 luxury apartments, 24,000 square feet of commercial space and a 215 -car structured parking facility. See to Note 5, "Investment in Unconsolidated Real Estate Ventures" for additional information regarding the related-party note receivable with 1919 Venture.
Four Tower Bridge Acquisition
During 2018, the Company acquired, from its then partner in each of the Four Tower Bridge real estate venture and the Seven Tower Bridge real estate venture, the partner’s remaining 35 % ownership interest in the Four Tower Bridge real estate venture in exchange for the Company's 20 % ownership interest in the Seven Tower Bridge real estate venture. The Four Tower Bridge real estate venture owned an office property containing 86,021 square feet in Conshohocken, Pennsylvania encumbered with $9.7 million in debt. The Company previously accounted for its noncontrolling interest in Four Tower Bridge using the equity method. As a result of the exchange transaction, the Company obtained control of the Four Tower Bridge property and recognized a gain of $11.6 million. For further information regarding the accounting of the transaction, see Note 3, ''Real Estate Investments.”
evo at Cira Centre South Venture
On January 10, 2018, evo at Cira, a real estate venture in which the Company held a 50 % interest, sold its sole asset, a 345 -unit student housing tower, at a gross sales value of $197.5 million. The student housing tower, located in Philadelphia, Pennsylvania, was encumbered by a secured loan with a principal balance of $110.9 million at the time of sale, which was repaid in full from the sale proceeds. The Company’s share of net cash proceeds from the sale, after debt repayment and closing costs, was $43.0 million. As the Company’s investment basis was $17.3 million, a gain of $25.7 million was recorded within the “Net gain on real estate venture transactions’ caption in the consolidated statements of operations.
F-40
JBG Ventures
JBG Ventures consists of 51 N 50 Patterson, Holdings, LLC Venture ("51 N Street") and 1250 First Street Office, LLC Venture ("1250 First Street"), with the Company owning a 70.0 30.0 two ventures. 51 N Street owns 0.9 acres of undeveloped land and 1250 First Street, owns 0.5 acres of undeveloped land.
Based on the facts and circumstances at the formation of each of the two ventures with JBG, the Company determined that each venture is a VIE in accordance with the accounting standard for the consolidation of VIEs. As a result, the Company used the variable interest model under the accounting standard for consolidation in order to determine whether to consolidate the JBG Ventures. JBG is the managing member of the ventures, and pursuant to the operating and related agreements, major decisions require the approval of both members. Based upon each member's shared power over the activities of each of the two ventures, which most significantly impact the economics of the ventures, neither venture is consolidated by the Company. Both ventures are accounted for under the equity method of accounting.
4040 Wilson Venture
On July 31, 2013, the Company formed 4040 Wilson LLC Venture (“4040 Wilson”) a joint venture between the Company and Ashton Park Associates LLC (“Ashton Park”), an unaffiliated third party. Each of the Company and Ashton Park owns a 50 % interest in 4040 Wilson. 4040 Wilson is developing a 427,500 square foot mixed-use building representing the final phase of the eight building, mixed-use, Liberty Center complex located in the Ballston submarket of Arlington, Virginia. The project is being constructed on a 1.3 -acre land parcel contributed by Ashton Park to 4040 Wilson at an agreed upon value of $36.0 million. During the fourth quarter of 2017, 4040 Wilson achieved pre-leasing levels that enabled the venture to obtain a secured construction loan with a total borrowing capacity of $150.0 million for the remainder of the project costs. As of December 31, 2020, $141.9 million had been advanced under the construction loan and development of the building is in progress.
Based upon the facts and circumstances at the formation of 4040 Wilson, the Company determined that 4040 Wilson is a VIE in accordance with the accounting standard for the consolidation of VIEs. As a result, the Company used the variable interest model under the accounting standard for consolidation in order to determine whether to consolidate 4040 Wilson. Based upon each member’s shared power over the activities of 4040 Wilson under the operating and related agreements, and the Company’s lack of control over the development and construction phases of the project, 4040 Wilson is accounted for under the equity method of accounting.
5. DEBT AND PREFERRED EQUITY INVESTMENTS
As of December 31, 2020, the Company held one debt investment and one preferred equity investment in entities owning real estate assets. The Company accounts for these mandatorily redeemable investments as notes receivable, which are included within “Other assets” on the consolidated balance sheets. As of December 31, 2020, all debt and preferred equity investments were performing in accordance with their respective terms and remain on accrual status.
Austin Preferred Equity Investment
On December 31, 2020, the Company invested $50.0 million through a preferred equity interest in a single-purpose entity that owns two stabilized office buildings located in Austin, Texas. The preferred equity interest acquired by the Company accrues a 9.0 % annual return, compounded and paid monthly. The investment is required to be redeemed no later than December 31, 2023 (subject to a one-year extension option).
1919 Venture Note Receivable
During 2018, the Company and the other equity partner in 1919 Venture each provided a $44.4 million mortgage loan to 1919 Venture and, as a result, the Company recorded a related-party note receivable from 1919 Venture of $44.4 million. The loan bears interest at a fixed 4.0 % per annum interest rate with a scheduled maturity on June 25, 2023. 1919 Venture used the proceeds from the loans to repay the venture’s then outstanding $88.8 million construction loan. See Note 4, ''Investment in Unconsolidated Real Estate Ventures” for further information regarding 1919 Venture.
F-41
6. LEASES
Lessor Accounting
The Company leases properties to tenants under operating leases with various expiration dates. Scheduled minimum lease payments on noncancellable leases at December 31, 2020 are as follows (in thousands):
| Year | Minimum Rent | |||||||
| 2021 | $ | |||||||
| 2022 | ||||||||
| 2023 | ||||||||
| 2024 | ||||||||
| 2025 | ||||||||
| Thereafter | ||||||||
Lessee Accounting
As of December 31, 2020, the Company is the lessee under six long-term ground leases classified as "operating leases" in the consolidated balance sheets. Certain of the Company’s ground leases contain extension options and the Company considered all relevant factors in determining if it was reasonably certain that it would exercise such extension options. The Company concluded that it was not reasonably certain that it would exercise the extension options and, therefore, has not included the extension period in the remaining lease terms. With the exception of certain ground leases that are subject to rent increases periodically based on the CPI index, all lease payments under the ground lease are fixed.
The table below summarizes the Company’s operating lease cost (in thousands) recognized through “Property operating expenses” on the consolidated statements of operations (in thousands):
| Year Ended December 31, | ||||||||||||||
| Lease Cost | 2020 | 2019 | ||||||||||||
| Fixed lease cost | $ | $ | ||||||||||||
| Variable lease cost | ||||||||||||||
| Total | $ | $ | ||||||||||||
| Weighted-average remaining lease term (years) | ||||||||||||||
| Weighted-average discount rate | % | % | ||||||||||||
Lease payments by the Company under the terms of all noncancellable ground leases of land are expensed on a straight-line basis regardless of when payments are due. The Company’s ground leases, excluding prepaid ground leases, have remaining lease terms ranging from 9 to 64 years. Lease payments on noncancellable leases at December 31, 2020 are as follows (in thousands):
| Year | Minimum Rent | |||||||
| 2021 | $ | |||||||
| 2022 | ||||||||
| 2023 | ||||||||
| 2024 | ||||||||
| 2025 | ||||||||
| Thereafter | ||||||||
| Total lease payments | $ | |||||||
| Less: Imputed interest | ||||||||
| Present value of operating lease liabilities | $ | |||||||
The Company obtained ground tenancy rights related to three properties in Philadelphia, Pennsylvania, which provide for contingent rent participation by the lessor in certain capital transactions and net operating cash flows of the properties after certain returns are achieved by the Company. Such amounts, if any, will be reflected as contingent rent when incurred. The ground leases also provide for payment by the Company of certain operating costs relating to the land, primarily real estate
F-42
7. DEFERRED COSTS
As of December 31, 2020 and 2019, the Company’s deferred costs were comprised of the following (in thousands):
| December 31, 2020 | |||||||||||||||||
| Total Cost | Accumulated Amortization | Deferred Costs, net | |||||||||||||||
| Leasing costs | $ | $ | ( | $ | |||||||||||||
| Financing costs - Revolving Credit Facility | ( | ||||||||||||||||
| Total | $ | $ | ( | $ | |||||||||||||
| December 31, 2019 | |||||||||||||||||
| Total Cost | Accumulated Amortization | Deferred Costs, net | |||||||||||||||
| Leasing costs | $ | $ | ( | $ | |||||||||||||
| Financing costs - Revolving Credit Facility | ( | ||||||||||||||||
| Total | $ | $ | ( | $ | |||||||||||||
8. INTANGIBLE ASSETS
As of December 31, 2020 and 2019, the Company’s intangible assets were comprised of the following (in thousands):
| December 31, 2020 | |||||||||||||||||
| Total Cost | Accumulated Amortization | Intangible Assets, net | |||||||||||||||
| Intangible assets, net: | |||||||||||||||||
| In-place lease value | $ | $ | ( | $ | |||||||||||||
| Tenant relationship value | ( | ||||||||||||||||
| Above market leases acquired | ( | ||||||||||||||||
| Total intangible assets, net | $ | $ | ( | $ | |||||||||||||
| Total Cost | Accumulated Amortization | Intangible Liabilities, net | |||||||||||||||
| Intangible liabilities, net: | |||||||||||||||||
| Below market leases acquired | $ | $ | ( | $ | |||||||||||||
F-43
| December 31, 2019 | |||||||||||||||||
| Total Cost | Accumulated Amortization | Intangible Assets, net | |||||||||||||||
| Intangible assets, net: | |||||||||||||||||
| In-place lease value | $ | $ | ( | $ | |||||||||||||
| Tenant relationship value | ( | ||||||||||||||||
| Above market leases acquired | ( | ||||||||||||||||
| Total intangible assets, net | $ | $ | ( | $ | |||||||||||||
| Total Cost | Accumulated Amortization | Intangible Liabilities, net | |||||||||||||||
| Intangible liabilities, net: | |||||||||||||||||
| Below market leases acquired | $ | $ | ( | $ | |||||||||||||
For the years ended December 31, 2020, 2019, and 2018, the Company accelerated the amortization of intangible assets by approximately $0.3 million, $4.5 million, and $0.6 million, respectively, as a result of tenant move-outs prior to the end of the associated lease term. For the years ended December 31, 2020 and 2019 the Company accelerated the amortization of approximately $0.1 million and $2.2 million of intangible liabilities as a result of tenant move-outs. For the year ended December 31, 2018 the Company accelerated the amortization of a no minal amount of intangible liabilities as a result of tenant move-outs.
As of December 31, 2020, the Company’s annual amortization for its intangible assets/liabilities, assuming no early lease terminations, are as follows (dollars in thousands):
| Assets | Liabilities | ||||||||||
| 2021 | $ | $ | |||||||||
| 2022 | |||||||||||
| 2023 | |||||||||||
| 2024 | |||||||||||
| 2025 | |||||||||||
| Thereafter | |||||||||||
| Total | $ | $ | |||||||||
F-44
9. DEBT OBLIGATIONS
The following table sets forth information regarding the Company’s consolidated debt obligations outstanding at December 31, 2020 and 2019 (in thousands):
| December 31, 2020 | December 31, 2019 | Effective Interest Rate | Maturity Date | ||||||||||||||||||||
| MORTGAGE DEBT: | |||||||||||||||||||||||
| Two Logan Square (a) | $ | $ | October 2020 | ||||||||||||||||||||
| Four Tower Bridge (b) | February 2021 | ||||||||||||||||||||||
| One Commerce Square (c) | April 2023 | ||||||||||||||||||||||
| Two Commerce Square (c) | April 2023 | ||||||||||||||||||||||
| Principal balance outstanding | |||||||||||||||||||||||
| Plus: fair market value premium (discount), net | ( | ||||||||||||||||||||||
| Less: deferred financing costs | ( | ||||||||||||||||||||||
| Mortgage indebtedness | $ | $ | |||||||||||||||||||||
| UNSECURED DEBT | |||||||||||||||||||||||
$ | $ | $ | LIBOR + | July 2022 | |||||||||||||||||||
-Year Term Loan - Swapped to fixed | October 2022 | ||||||||||||||||||||||
$ | February 2023 | ||||||||||||||||||||||
$ | October 2024 | ||||||||||||||||||||||
$ | November 2027 | ||||||||||||||||||||||
$ | October 2029 | ||||||||||||||||||||||
| Indenture IA (Preferred Trust I) | LIBOR + | March 2035 | |||||||||||||||||||||
| Indenture IB (Preferred Trust I) - Swapped to fixed | April 2035 | ||||||||||||||||||||||
| Indenture II (Preferred Trust II) | LIBOR + | July 2035 | |||||||||||||||||||||
| Principal balance outstanding | |||||||||||||||||||||||
| Plus: original issue premium (discount), net | |||||||||||||||||||||||
| Less: deferred financing costs | ( | ( | |||||||||||||||||||||
| Total unsecured indebtedness | $ | $ | |||||||||||||||||||||
| Total Debt Obligations | $ | $ | |||||||||||||||||||||
(a)On October 21, 2020, the Company acquired the $79.8 million remaining mortgage on this property from the lender.
(b)On November 10, 2020, the Company repaid the remaining $9.1 million mortgage balance.
(c)The properties encumbered by these mortgages were deconsolidated as a result of the Commerce Square Venture Transaction. See Note 3, ''Real Estate Investments," for further information.
The Parent Company unconditionally guarantees the unsecured debt obligations of the Operating Partnership (or is a co-borrower with the Operating Partnership) but does not by itself incur unsecured indebtedness. The Parent Company has no material assets other than its investment in the Operating Partnership.
On October 10, 2019, the Company completed underwriting offerings of an additional $100.0 million of its 4.10 % Guaranteed Notes due 2024 (the "2024 Notes") and an additional $100.0 million of its 4.55 % Guaranteed Notes due 2029 (the "2029 Notes"). The additional 2024 Notes were priced at 106.315 % of their face amount and the additional 2029 Notes were priced at 110.058 % of their face amount. The additional 2024 Notes and additional 2029 Notes have been reflected net of premiums of $5.3 million and $8.5 million, respectively, in the consolidated balance sheet as of December 31, 2019.
On December 13, 2018, the Company amended and restated its $250.0 million seven-year term loan maturing October 8, 2022. In connection with the terms of the amendment, the credit spread on the term loan decreased from LIBOR plus 1.80 % to LIBOR plus 1.25 %, reducing the Company’s effective interest rate by 0.55 %. Through a series of interest rate swaps, the $250.0 million outstanding balance of the term loan has a fixed interest rate of 2.87 %.
On July 17, 2018, the Company amended and restated its revolving credit agreement (as amended and restated, the “Unsecured Credit Facility”). The amendment and restatement, among other things: (i) maintained the total commitment of the revolving line of credit of $600.0 million; (ii) extended the maturity date from May 15, 2019 to July 15, 2022, with two six-month extensions at the Company’s election subject to specified conditions and subject to payment of an extension fee; (iii) reduced the interest rate margins applicable to Eurodollar loans; (iv) provided for an additional interest rate option based on a floating LIBOR rate; and (v) removed the covenant requiring the Company to maintain a minimum net worth. In
F-45
connection with the amendments, the Company capitalized $2.7 million in financing costs, which will be amortized through the July 15, 2022 maturity date.
At the Company's option, loans outstanding under the Unsecured Credit Facility will bear interest at a rate per annum equal to (1) LIBOR plus between 0.775 % and 1.45 %, based on the Company's credit rating, or (2) a base rate equal to the greatest of (a) the Administrative Agent's prime rate, (b) the Federal Funds rate plus 0.5 % or (c) LIBOR for a one month period plus 1.00 %, in each case, plus a margin ranging from 0.0 % to 0.45 % based on the Company's credit rating. The Unsecured Credit Facility also contains a competitive bid option that allows banks that are part of the lender consortium to bid to make loan advances to the Company at a reduced interest rate. In addition, the Company is also obligated to pay (1) in quarterly installments a facility fee on the total commitment at a rate per annum ranging from 0.125 % to 0.30 % based on the Company's credit rating and (2) an annual fee on the undrawn amount of each letter or credit equal to the LIBOR Margin. Based on the Company's current credit rating, the LIBOR margin is 1.10 % and the facility fee is 0.25 %.
The terms of the Unsecured Credit Facility require that the Company maintain customary financial and other covenants, including: (i) a fixed charge coverage ratio greater than or equal to 1.5 to 1.00; (ii) a leverage ratio less than or equal to 0.60 to 1.00, subject to specified exceptions; (iii) a ratio of unsecured indebtedness to unencumbered asset value less than or equal to 0.60 to 1.00, subject to specified exceptions; (iv) a ratio of secured indebtedness to total asset value less than or equal to 0.40 to 1.00; and (v) a ratio of unencumbered cash flow to interest expense on unsecured debt greater than 1.75 to 1.00. In addition, the Unsecured Credit Facility restricts payments of dividends and distributions on shares in excess of 95 % of the Company's funds from operations (FFO) except to the extent necessary to enable the Company to continue to qualify as a REIT for Federal income tax purposes.
The Company had no borrowings under the Unsecured Credit Facility as of December 31, 2020 and 2019. During the twelve months ended December 31, 2020, the weighted-average interest rate on Unsecured Credit Facility borrowings was 1.48 % resulting in $0.5 million of interest expense. During the twelve months ended December 31, 2019, the weighted-average interest rate on Unsecured Credit Facility borrowings was 3.52 % resulting in $4.4 million of interest expense.
The Company was in compliance with all financial covenants as of December 31, 2020 and 2019. Management continuously monitors the Company’s compliance with and anticipated compliance with the covenants. Certain of the covenants restrict the Company’s ability to obtain alternative sources of capital. While the Company currently believes it will remain in compliance with its covenants, in the event that the economy deteriorates in the future, the Company may not be able to remain in compliance with such covenants, in which case a default would result absent a lender waiver.
As of December 31, 2020, the Company’s aggregate scheduled principal payments of debt obligations are as follows (in thousands):
| 2021 | $ | ||||
| 2022 | |||||
| 2023 | |||||
| 2024 | |||||
| 2025 | |||||
| Thereafter | |||||
| Total principal payments | |||||
| Net unamortized premiums/(discounts) | |||||
| Net deferred financing costs | ( | ||||
| Outstanding indebtedness | $ | ||||
10. FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company determined the fair values disclosed below using available market information and discounted cash flow analyses as of December 31, 2020 and 2019, respectively. The discount rate used in calculating fair value is the sum of the current risk free rate and the risk premium on the date of measurement of the instruments or obligations. Considerable judgment is necessary to interpret market data and to develop the related estimates of fair value. Accordingly, the estimates presented are not necessarily indicative of the amounts that the Company could realize upon disposition. The use of different estimation methodologies may have a material effect on the estimated fair value amounts shown. The Company believes that the carrying amounts reflected in the consolidated balance sheets at December 31, 2020 and 2019 approximate the fair values
F-46
for cash and cash equivalents, accounts receivable, other assets, accounts payable and accrued expenses because they are short-term in duration.
The following are financial instruments for which the Company’s estimates of fair value differ from the carrying amounts (in thousands):
| December 31, 2020 | December 31, 2019 | |||||||||||||||||||||||||
| Carrying Amount (a) | Fair Value | Carrying Amount (a) | Fair Value | |||||||||||||||||||||||
| Unsecured notes payable | $ | $ | $ | $ | ||||||||||||||||||||||
| Variable rate debt | $ | $ | $ | $ | ||||||||||||||||||||||
| Mortgage notes payable | $ | $ | $ | $ | ||||||||||||||||||||||
| Notes receivable | $ | $ | $ | $ | ||||||||||||||||||||||
(a)The carrying amounts presented in the table above are net of deferred financing costs of $7.2 million and $8.7 million for unsecured notes payable, $0.9 million and $1.4 million for variable rate debt and $0.0 million and $0.2 million for mortgage notes payable as of December 31, 2020 and December 31, 2019, respectively.
On June 26, 2018, the Company provided a $44.4 million mortgage loan to 1919 Venture, an unconsolidated real estate venture in which the Company holds a 50 % ownership interest, and recorded a note receivable of $44.4 million. For additional information regarding the transaction, see Note 4, ''Investment in Unconsolidated Real Estate Ventures.”
The Company used quoted market prices as of December 31, 2020 and December 31, 2019 to value the unsecured notes payable and, as such, categorized them as Level 2.
The inputs utilized to determine the fair value of the Company’s mortgage notes payable and variable rate debt are categorized as Level 3. The fair value of the variable rate debt was determined using a discounted cash flow model that considered borrowing rates available to the Company for loans with similar terms and characteristics. The fair value of the mortgage notes payable was determined using a discounted cash flow model that considered the contractual interest and principal payments discounted at a blended market rate for loans with similar terms, maturities and loan-to-value. These inputs have been categorized as Level 3 because the Company considers the rates used in the valuation techniques to be unobservable.
The inputs utilized to determine fair value of the Company's notes receivable are unobservable and, as such, were categorized as Level 3. Fair value was determined using a discounted cash flow model that considered the contractual interest and principal payments discounted at a blended interest rate of the notes receivable.
For the Company’s Level 3 financial instruments for which fair value is disclosed, an increase in the discount rate used to determine fair value would result in a decrease to the fair value. Conversely, a decrease in the discount rate would result in an increase to the fair value.
Disclosure about the fair value of financial instruments is based upon pertinent information available to management as of December 31, 2020 and December 31, 2019. Although management is not aware of any factors that would significantly affect the fair value amounts, such amounts were not comprehensively revalued for purposes of these financial statements since December 31, 2020. Current estimates of fair value may differ from the amounts presented herein.
11. DERIVATIVE FINANCIAL INSTRUMENTS
Use of Derivative Financial Instruments
The Company’s use of derivative instruments is limited to the utilization of interest rate agreements or other instruments to manage interest rate risk exposures and not for speculative purposes. The principal objective of such arrangements is to minimize the risks and/or costs associated with the Company’s operating and financial structure, as well as to hedge specific transactions. The counterparties to these arrangements are major financial institutions with which the Company and its affiliates may also have other financial relationships. The Company is potentially exposed to credit loss in the event of non-performance by these counterparties. However, because of the high credit ratings of the counterparties, the Company does not anticipate that any of the counterparties will fail to meet these obligations as they come due. The Company does not hedge credit or property value market risks through derivative financial instruments.
F-47
The Company formally assesses, both at the inception of a hedge and on an on-going basis, whether each derivative is highly-effective in offsetting changes in cash flows of the hedged item. If management determines that a derivative is not highly-effective as a hedge or if a derivative ceases to be a highly-effective hedge, the Company will discontinue hedge accounting prospectively for either the entire hedge or the portion of the hedge that is determined to be ineffective. The related ineffectiveness would be charged to the consolidated statement of operations.
The valuation of these instruments is determined using widely accepted valuation techniques including discounted cash flow analysis on the expected cash flows of each derivative. This analysis reflects the contractual terms of the derivatives, including the period to maturity, and uses observable market-based inputs, including interest rate curves and implied volatilities. The fair values of interest rate swaps are determined using the market standard methodology of netting the discounted future fixed cash receipts (or payments) and the discounted expected variable cash payments (or receipts). The variable cash payments (or receipts) are based on an expectation of future interest rates (forward curves) derived from observable market interest rate curves.
To comply with the provisions of the accounting standard for fair value measurements and disclosures, the Company incorporates credit valuation adjustments to appropriately reflect both its own nonperformance risk and the respective counterparty’s nonperformance risk in the fair value measurements. In adjusting the fair value of its derivative contracts for the effect of nonperformance risk, the Company has considered the impact of netting and any applicable credit enhancements, such as collateral postings, thresholds, mutual puts, and guarantees.
The following table summarizes the terms and fair values of the Company’s derivative financial instruments as of December 31, 2020 and December 31, 2019. The notional amounts provide an indication of the extent of the Company’s involvement in these instruments at that time but do not represent exposure to credit, interest rate or market risks (amounts presented in thousands).
| Hedge Product | Hedge Type | Designation | Notional Amount | Strike | Trade Date | Maturity Date | Fair value | |||||||||||||||||||||||||||||||||||||||||||||||||
| 12/31/2020 | 12/31/2019 | 12/31/2020 | 12/31/2019 | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Liabilities | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Swap | Interest Rate | Cash Flow | (a) | $ | $ | % | October 8, 2015 | October 8, 2022 | $ | ( | $ | ( | ||||||||||||||||||||||||||||||||||||||||||||
| Swap | Interest Rate | Cash Flow | (a) | % | December 22, 2011 | January 30, 2021 | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||
| $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
(a)Hedging unsecured variable rate debt.
The Company measures its derivative instruments at fair value and records them in the “Other assets” and (“Other liabilities”) captions on the Company’s consolidated balance sheets.
Although the Company has determined that the majority of the inputs used to value its derivatives fall within Level 2 of the fair value hierarchy, the credit valuation adjustments associated with its derivatives utilize Level 3 inputs, such as estimates of current credit spreads to evaluate the likelihood of default by itself and its counterparties. The Company has assessed the significance of the impact of the credit valuation adjustments on the overall valuation of its derivative positions and has determined that the credit valuation adjustments are not significant to the overall valuation of its derivatives. As a result, the Company has determined that the inputs utilized to determine the fair value of derivative instruments are classified in Level 2 of the fair value hierarchy.
Disclosure about the fair value of derivative instruments is based upon pertinent information available to management as of December 31, 2020 and December 31, 2019. Although management is not aware of any factors that would significantly affect the fair value amounts, such amounts have not been comprehensively revalued for purposes of these financial statements since December 31, 2020. Current estimates of fair value may differ from the amounts presented herein.
Concentration of Credit Risk
Concentrations of credit risk arise for the Company when multiple tenants of the Company are engaged in similar business activities, or are located in the same geographic region, or have similar economic features that impact in a similar manner
F-48
12. LIMITED PARTNERS' NONCONTROLLING INTERESTS IN THE PARENT COMPANY
Noncontrolling interests in the Parent Company’s financial statements relate to redeemable common limited partnership interests in the Operating Partnership held by parties other than the Parent Company and properties which are consolidated but not wholly owned by the Operating Partnership.
Operating Partnership
The aggregate book value of the noncontrolling interests associated with the redeemable common limited partnership interests that were consolidated in the accompanying consolidated balance sheet of the Parent Company as of December 31, 2020 and December 31, 2019, was $10.5 million and $9.3 million, respectively. Under the applicable accounting guidance, the redemption value of limited partnership units are carried at fair value. The Parent Company believes that the aggregate settlement value of these interests (based on the number of units outstanding and the closing price of the common shares on the balance sheet date) was approximately $11.7 million and $15.5 million, respectively, as of December 31, 2020 and December 31, 2019.
13. BENEFICIARIES' EQUITY OF THE PARENT COMPANY
Earnings per Share (EPS)
The following table details the number of shares and net income used to calculate basic and diluted earnings per share (in thousands, except share and per share amounts; results may not add due to rounding):
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||||||||||||||||||||
| Basic | Diluted | Basic | Diluted | Basic | Diluted | ||||||||||||||||||||||||||||||
| Numerator | |||||||||||||||||||||||||||||||||||
| Net income | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
| Net income attributable to noncontrolling interests | ( | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||||
| Nonforfeitable dividends allocated to unvested restricted shareholders | ( | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||||
| Net income attributable to common shareholders | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
| Denominator | |||||||||||||||||||||||||||||||||||
| Weighted-average shares outstanding | |||||||||||||||||||||||||||||||||||
| Contingent securities/Share based compensation | — | — | — | ||||||||||||||||||||||||||||||||
| Weighted-average shares outstanding | |||||||||||||||||||||||||||||||||||
| Earnings per Common Share: | |||||||||||||||||||||||||||||||||||
| Net income attributable to common shareholders | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
The contingent securities/share based compensation impact is calculated using the treasury stock method and relates to employee awards settled in shares of the Parent Company. The effect of these securities is anti-dilutive for periods that the Parent Company incurs a net loss from continuing operations available to common shareholders and therefore is excluded from the dilutive earnings per share calculation in such periods.
Redeemable common limited partnership units, totaling 981,634 982,871 as of December 31, 2018, respectively, were excluded from the diluted earnings per share computations because they are not dilutive.
F-49
Unvested restricted shares are considered participating securities which require the use of the two-class method for the computation of basic and diluted earnings per share. For the years ended December 31, 2020, 2019 and 2018, earnings representing nonforfeitable dividends were allocated to the unvested restricted shares issued to the Company’s executives and other employees under the Company's shareholder-approved long-term incentive plan.
Common and Preferred Shares
On December 8, 2020, the Parent Company declared a distribution of $0.19 per common share, totaling $32.7 million, which was paid on January 20, 2021 to shareholders of record as of January 6, 2021.
Of the 20,000,000 none
Common Share Repurchases
The Parent Company maintains a common share repurchase program under which the Board of Trustees has authorized the Parent Company to repurchase common shares. On January 3, 2019, the Board of Trustees replenished this program by authorizing the Parent Company to repurchase up to $150 million common shares under the program from and after January 3, 2019. During the year ended December 31, 2020 the Company repurchased and retired 6,248,483 common shares at an average price of $9.60 per share, totaling $60.0 million. During the year ended December 31, 2019, the Company repurchased and retired 1,337,169 common shares at an average price of $12.92 per share, totaling $17.3 million. During the year ended December 31, 2018, the Company repurchased and retired 1,729,278 common shares at an average price of $12.64 per share, totaling $21.9 million. The Company expects to fund any additional share repurchases with a combination of available cash balances and availability under its unsecured revolving credit facility. The timing and amounts of any repurchases will depend on a variety of factors, including market conditions, regulatory requirements, share prices, capital availability and other factors as determined by the Company’s management team. The repurchase program does not require the purchase of any minimum number of shares and may be suspended or discontinued at any time without notice.
In connection with the Parent Company’s common share repurchase program, one common unit of the Operating Partnership is retired for each common share repurchased. During the year ended December 31, 2020 the Company repurchased and retired 6,248,483 common units at an average price of $9.60 per unit, totaling $60.0 million. During the year ended December 31, 2019, the Company repurchased and retired 1,337,169 common units at an average price of $12.92 per unit, totaling $17.3 million. During the year ended December 31, 2018, the Company repurchased and retired 1,729,278 units at an average price of $12.64 per unit totaling $21.9 million. During the year ended December 31, 2017 there were no repurchases under the program. The Company expects to fund any additional unit repurchases with a combination of available cash balances and availability under its unsecured revolving credit facility. The timing and amounts of any purchases will depend on a variety of factors, including market conditions, regulatory requirements, unit prices, capital availability and other factors as determined by the Company’s management team. The repurchase program does not require the purchase of any minimum number of units and may be suspended or discontinued at any time without notice.
The common shares repurchased were retired and, as a result, were accounted for in accordance with Maryland law, which does not contemplate treasury stock. The repurchases were recorded as a reduction of common shares (at $0.01 par value per unit) and a decrease to General Partnership Capital.
Continuous Offering Program
On January 10, 2017, the Parent Company entered into a continuous offering program (the “Offering Program”), that permitted the Parent Company to sell up to an aggregate of 16,000,000 common shares in at-the-market offerings.
There was no 23,311 common shares under the Offering Program at a weighted average price per share of $18.04 , receiving net cash proceeds of $0.4 million. At December 31, 2020, no common shares remained available for issuance under the Offering Program, which terminated on January 10, 2020.
F-50
14. PARTNERS' EQUITY OF THE PARENT COMPANY
Earnings per Common Partnership Unit
The following table details the number of units and net income used to calculate basic and diluted earnings per common partnership unit (in thousands, except unit and per unit amounts; results may not add due to rounding):
| Year Ended December 31, | |||||||||||||||||||||||||||||||||||
| 2020 | 2019 | 2018 | |||||||||||||||||||||||||||||||||
| Basic | Diluted | Basic | Diluted | Basic | Diluted | ||||||||||||||||||||||||||||||
| Numerator | |||||||||||||||||||||||||||||||||||
| Net income | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
| Net income attributable to noncontrolling interests | ( | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||||
| Nonforfeitable dividends allocated to unvested restricted unitholders | ( | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||||
| Net income attributable to common unitholders | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
| Denominator | |||||||||||||||||||||||||||||||||||
| Weighted-average units outstanding | |||||||||||||||||||||||||||||||||||
| Contingent securities/Share based compensation | — | — | — | ||||||||||||||||||||||||||||||||
| Total weighted-average units outstanding | |||||||||||||||||||||||||||||||||||
| Earnings per Common Partnership Unit: | |||||||||||||||||||||||||||||||||||
| Net income attributable to common unitholders | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||
Unvested restricted units are considered participating securities which require the use of the two-class method for the computation of basic and diluted earnings per unit. For the years ended December 31, 2020, 2019 and 2018, earnings representing nonforfeitable dividends were allocated to the unvested restricted units issued to the Parent Company’s executives and other employees under the Parent Company’s shareholder-approved long-term incentive plan.
Common Partnership Units and Preferred Mirror Units
The Operating Partnership issues partnership units to the Parent Company in exchange for the contribution of the net proceeds of any equity security issuance by the Parent Company. The number and terms of such partnership units correspond to the number and terms of the related equity securities issued by the Parent Company. In addition, the Operating Partnership may also issue separate classes of partnership units. Historically, the Operating Partnership has had the following types of partnership units outstanding: (i) Preferred Partnership Units which have been issued to parties other than the Parent Company; (ii) Preferred Mirror Partnership Units which have been issued to the Parent Company; and (iii) Common Partnership Units which include both interests held by the Parent Company and those held by other limited partners.
Preferred Mirror Partnership Units
In exchange for the proceeds received in corresponding offerings by the Parent Company of preferred shares of beneficial interest, the Operating Partnership has issued to the Parent Company a corresponding amount of Preferred Mirror Partnership Units with terms consistent with that of the preferred securities issued by the Parent Company.
Common Partnership Units (Redeemable and General)
The Operating Partnership has two classes of Common Partnership Units outstanding as of December 31, 2020: (i) Class A Limited Partnership Interest which are held by both the Parent Company and outside third parties and (ii) General Partnership Interests which are held solely by the Parent Company (collectively, the Class A Limited Partnership Interest, and General Partnership Interests are referred to as “Common Partnership Units”). The holders of the Common Partnership Units are
F-51
entitled to share in cash distributions from, and in profits and losses of, the Operating Partnership, in proportion to their respective percentage interests, subject to preferential distributions on the preferred mirror units and the preferred units.
The Common Partnership Units held by the Parent Company (comprised of both General Partnership Units and Class A Limited Partnership Units) are presented as partner’s equity in the consolidated financial statements. Class A Limited Partnership Interest held by parties other than the Parent Company are redeemable at the option of the holder for a like number of common shares of the Parent Company, or cash, or a combination thereof, at the election of the Parent Company. Because the form of settlement of these redemption rights are not within the control of the Operating Partnership, these Common Partnership Units have been excluded from partner’s equity and are presented as redeemable limited partnership units measured at the potential cash redemption value as of the end of the periods presented based on the closing market price of the Parent Company’s common shares at December 31, 2020, 2019 and 2018, which was $11.91 , $15.75 and $12.87 , respectively. Class A Units of 981,634 982,871 as of December 31, 2018, respectively, were outstanding and owned by outside limited partners of the Operating Partnership.
On December 8, 2020, the Operating Partnership declared a distribution of $0.19 per common unit, totaling $32.7 million, which was paid on January 20, 2021 to unitholders of record as of January 6, 2021.
Common Unit Repurchases
In connection with the Parent Company’s common share repurchase program, one common unit of the Operating Partnership is retired for each common share repurchased. On January 3, 2019, the Board of Trustees replenished this program by authorizing the Parent Company to repurchase of up to $150.0 million common shares under the program from and after January 3, 2019. During the year ended December 31, 2020 the Company repurchased and retired 6,248,483 common units at an average price of $9.60 per unit, totaling $60.0 million. During the year ended December 31, 2019, the Company Repurchased 1,337,169 common units at an average price of $12.92 per unit, totaling $17.3 million. During the year ended December 31, 2018, the Company repurchased and retired 1,729,278 common units at an average price of $12.64 per unit, totaling $21.9 million. The Company expects to fund any additional unit repurchases with a combination of available cash balances and availability under its unsecured revolving credit facility. The timing and amounts of any purchases will depend on a variety of factors, including market conditions, regulatory requirements, unit prices, capital availability and other factors as determined by the Company’s management team. The repurchase program does not require the purchase of any minimum number of units and may be suspended or discontinued at any time without notice.
The common units repurchased were retired and, as a result, were accounted for in accordance with Maryland law, which does not contemplate treasury stock. The repurchases were recorded as a reduction of common units (at $0.01 par value per unit) and a decrease to General Partnership Capital.
Continuous Offering Program
On January 10, 2017, the Parent Company entered into a continuous offering program (the “Offering Program”), which permitted it to sell up to an aggregate of 16,000,000 common units in at-the-market offerings. In connection with the commencement of the Offering Program, $0.2 million of upfront costs were recorded to General Partner Capital.
There was no activity under the Offering Program during 2020 and 2019. During 2018, the Parent Company issued 23,311 common units under the Offering Program at a weighted average price per unit of $18.04 , receiving net cash proceeds of $0.4 million. As of December 31, 2020, no common shares remained available for issuance under the Offering Program, which terminated on January 10, 2020.
15. SHARE BASED COMPENSATION, 401(K) PLAN AND DEFERRED COMPENSATION
Stock Options
On December 31, 2020, options exercisable for 300,046 common shares were outstanding under the Parent Company’s shareholder approved equity incentive plan (referred to as the “Equity Incentive Plan”). During the years ended December 31, 2020, 2019 and 2018, the Company did not recognize any compensation expense related to unvested options. During the years ended December 31, 2020, 2019 and 2018, the Company did not capitalize any compensation expense related to stock options as part of the Company’s review of employee salaries eligible for capitalization.
F-52
Options outstanding as of December 31, 2020 and changes during the year-ended December 31, 2020 were as follows:
| Shares | Weighted Average Exercise Price | Weighted Average Remaining Contractual Term (in years) | Aggregate Intrinsic Value (in thousands) | |||||||||||||||||||||||
| Outstanding at January 1, 2020 | $ | |||||||||||||||||||||||||
| Exercised | ( | $ | $ | |||||||||||||||||||||||
| Outstanding at December 31, 2020 | $ | $ | ||||||||||||||||||||||||
| Vested/Exercisable at December 31, 2020 | $ | $ | ||||||||||||||||||||||||
401(k) Plan
The Company sponsors a 401(k) defined contribution plan for its employees. Each employee may contribute up to 100 % of annual compensation, subject to specific limitations under the Internal Revenue Code. At its discretion, the Company can make matching contributions equal to a percentage of the employee’s elective contribution and profit sharing contributions. The Company funds its 401(k) contributions annually and plan participants must be employed as of December 31 in order to receive employer contributions, except for employees eligible for qualifying retirement, as defined under the Internal Revenue Code. The Company contributions were $0.5 million, $0.4 million, and $0.5 million in 2020, 2019, and 2018, respectively.
Restricted Share Rights Awards
As of December 31, 2020, 488,735 restricted share rights ("Restricted Share Rights") were outstanding under the Equity Incentive Plan. These Restricted Share Rights vest over to three years from the initial grant dates. The remaining compensation expense to be recognized with respect to these awards at December 31, 2020 was $1.8 million and is expected to be recognized over a weighted average remaining vesting period of 0.8 years. For the years ended December 31, 2020, 2019, and 2018, the amortization related to outstanding Restricted Share Rights was $4.3 million (of which $0.4 million was capitalized), $3.9 million (of which $0.3 million was capitalized), and $3.6 million (of which $0.6 million was capitalized), respectively. Compensation expense related to outstanding Restricted Share Rights is included in general and administrative expense.
The following table summarizes the Company’s Restricted Share Rights activity during the year-ended December 31, 2020:
| Shares | Weighted Average Grant Date Fair Value | |||||||||||||
| Non-vested at January 1, 2020 | $ | |||||||||||||
| Granted | $ | |||||||||||||
| Vested | ( | $ | ||||||||||||
| Forfeited | ( | $ | ||||||||||||
| Non-vested at December 31, 2020 | $ | |||||||||||||
On March 5, 2020, the Compensation Committee of the Parent Company’s Board of Trustees awarded to officers of the Company an aggregate of 183,758 Restricted Share Rights, which generally vest over three years from the grant date. Each Restricted Share Right entitles the holder to one common share upon settlement. The Parent Company pays dividend equivalents on the Restricted Share Rights prior to the settlement date. Vesting and/or settlement would accelerate if the recipient of the award were to die, become disabled or, in the case of certain of such Restricted Share Rights, retire in a qualifying retirement prior to the vesting or settlement date. Qualifying retirement generally means the recipient’s voluntary termination of employment after reaching at least age 57 and accumulating at least 15 years of service with the Company. In addition, vesting would also accelerate if the Parent Company were to undergo a change of control and, on or before the first anniversary of the change of control, the recipient’s employment were to cease due to a termination without cause or resignation with good reason.
F-53
The Restricted Share Rights granted in 2020 and 2019 to certain senior executives include an “outperformance feature” whereby additional shares may be earned, up to 200 % of the shares subject to the basic award, based on the Company’s achievement of targets for same-store net operating cash income growth and investment/development activity provided certain operating and balance sheet metrics are also achieved during the three-year period ending December 31, 2022 and December 31, 2021 for the 2019 and 2020 awards, respectively. Half of any additional shares earned will vest based on continued service through each of January 1, 2023 and January 1, 2024 for the 2020 award and January 1, 2022 and January 1, 2023 for the 2019 award, provided that this additional service requirement will be waived in the event of a death, disability or qualifying retirement. In addition to the basic award, up to 316,306 shares and 233,890 shares may be awarded under the outperformance feature for the 2020 award and 2019 award, respectively. As of December 31, 2020, the Company has no t recognized any compensation expense related to the outperformance feature for the 2020 awards and has recognized $0.2 million related to the outperformance feature for the 2019 award. The Company will continue to evaluate progress towards achievement of the performance metrics on a quarterly basis and recognize compensation expense for these awards should it be determined that achievement of these metrics is probable.
In addition, on March 5, 2020, the Compensation Committee awarded non-officer employees an aggregate of 40,920 Restricted Share Rights that vest in three equal installments on April 15, 2020, 2021, and 2022. Vesting of these awards is subject to acceleration upon death, disability or termination without cause within one year following a change of control.
On May 20, 2020, the Compensation Committee awarded the Trustees an aggregate of 70,371 fully vested common shares.
In accordance with the accounting standard for share-based compensation, the Company amortizes share-based compensation costs through the qualifying retirement dates for those executives and Trustees who meet the conditions for qualifying retirement during the scheduled vesting period and whose award agreements provide for vesting upon a qualifying retirement.
Restricted Performance Share Units Plan
The Compensation Committee of the Parent Company’s Board of Trustees has granted performance share-based awards (referred to as Restricted Performance Share Units, or RPSUs) to officers of the Parent Company. The RPSUs are settled in common shares, with the number of common shares issuable in settlement determined based on the Company’s total shareholder return over specified measurement periods compared to total shareholder returns of comparative groups over the measurement periods. The table below presents certain information as to unvested RPSU awards.
| RPSU Grant Date | ||||||||||||||||||||||||||
| 2/28/2018 | 2/21/2019 | 3/5/2020 | Total | |||||||||||||||||||||||
| (Amounts below in shares, unless otherwise noted) | ||||||||||||||||||||||||||
| Non-vested at January 1, 2020 | ||||||||||||||||||||||||||
| Units Granted | ||||||||||||||||||||||||||
| Non-vested at December 31, 2020 | ||||||||||||||||||||||||||
| Measurement Period Commencement Date | 1/1/2018 | 1/1/2019 | 1/1/2020 | |||||||||||||||||||||||
| Measurement Period End Date | 12/31/2020 | 12/31/2021 | 12/31/2022 | |||||||||||||||||||||||
| Units Granted | ||||||||||||||||||||||||||
| Fair Value of Units on Grant Date (in thousands) | $ | $ | $ | |||||||||||||||||||||||
The Company values each RPSU on its grant date using a Monte Carlo simulation. The fair values of each award are being amortized over the three year performance period. During the performance period, dividend equivalents are credited as additional RPSU's, subject to the same terms and conditions as the original RPSU's. The performance period will be abbreviated and the delivery of earned shares will be accelerated in the event of a change in control or if the recipient of the award were to die, become disabled or retire in a qualifying retirement prior to the end of the otherwise applicable three year performance period; provided that, in the case of qualifying retirement for the March 5, 2020 grant, the number of shares deliverable will be pro-rated based on the portion of the performance period actually worked before retirement. In accordance with the accounting standard for share-based compensation, the Company amortizes stock-based compensation costs for the February 2019 and 2018 grants through the qualifying retirement date for those executives who meet the conditions for qualifying retirement during the scheduled vesting period.
For the year ended December 31, 2020, the Company recognized amortization of the 2020, 2019 and 2018 RPSU awards of $3.0 million, of which $0.4 million was capitalized consistent with the Company’s policies for capitalizing eligible portions of employee compensation. For the year ended December 31, 2019, amortization for the 2019, 2018 and 2017 RPSU awards
F-54
was $4.2 million, of which $0.6 million was capitalized consistent with the Company’s policies for capitalizing eligible portions of employee compensation. For the year ended December 31, 2018, amortization for the 2018, 2017, and 2016 RPSU awards was $3.9 million, of which $1.1 million was capitalized consistent with the Company’s policies for capitalizing eligible portions of employee compensation.
The remaining compensation expense to be recognized with respect to the non-vested RPSU's at December 31, 2020 was approximately $4.5 million and is expected to be recognized over a weighted average remaining vesting period of 1.5 years.
The Company issued 121,897 common shares on February 1, 2020 in settlement of RPSUs that had been awarded on March 1, 2017 (with a three-year measurement period ended December 31, 2019). Holders of these RPSUs also received a cash dividend of $0.19 per share for these common shares on January 22, 2020.
Employee Share Purchase Plan
The Parent Company’s shareholders approved the 2007 Non-Qualified Employee Share Purchase Plan (the “ESPP”), which is intended to provide eligible employees with a convenient means to purchase common shares of the Parent Company through payroll deductions and voluntary cash purchases at an amount equal to 85 % of the average closing price per share for a specified period. Under the plan document, the maximum participant contribution for the 2020 plan year is limited to the lesser of 20 % of compensation or $50,000 . The ESPP allows the Parent Company to make open market purchases, which reflects all purchases made under the plan to date. In addition, the number of shares separately reserved for issuance under the ESPP is 1.25 million. Employees made purchases under the ESPP of $0.4 million during the year ended December 31, 2020, $0.5 million during the year ended December 31, 2019 and $0.5 million during the year ended December 31, 2018. The Company recognized $0.1 15 % discount on the purchase price. The Board of Trustees of the Parent Company may terminate the ESPP at its sole discretion at any time.
Deferred Compensation
In January 2005, the Parent Company adopted a Deferred Compensation Plan (the “Plan”) that allows trustees and certain key employees to defer compensation voluntarily. Compensation expense is recorded for the deferred compensation and a related liability is recognized. Participants may elect designated benchmark investment options for the notional investment of their deferred compensation. The deferred compensation obligation is adjusted for deemed income or loss related to the investments selected. At the time the participants defer compensation, the Company records a liability, which is included in the Company’s consolidated balance sheets. The liability is adjusted for changes in the market value of the participant-selected investments at the end of each accounting period, and the impact of adjusting the liability is recorded as an increase or decrease to compensation cost.
The Company has purchased mutual funds which can be utilized as a funding source for the Company’s obligations under the Plan. Participants in the Plan have no interest in any assets set aside by the Company to meet its obligations under the Plan. For each of the years ended December 31, 2020, December 31, 2019 and December 31, 2018, the Company recorded a nominal amount of deferred compensation costs, net of investments in the company-owned policies and mutual funds.
Participants in the Plan may elect to have all, or a portion of their deferred compensation invested in the Company’s common shares. The Company holds these shares in a rabbi trust, which is subject to the claims of the Company’s creditors in the event of the Company’s bankruptcy or insolvency. The Plan does not permit diversification of a participant’s deferral allocated to the Company common shares and deferrals allocated to Company common shares can only be settled with a fixed number of shares. In accordance with the accounting standard for deferred compensation arrangements where amounts earned are held in a rabbi trust and invested, the deferred compensation obligation associated with the Company’s common shares is classified as a component of shareholder’s equity and the related shares are treated as shares to be issued and are included in total shares outstanding. At December 31, 2020 and 2019, 1.2 million and 1.1 million of such shares were included in total shares outstanding, respectively. Subsequent changes in the fair value of the common shares are not reflected in operations or shareholders’ equity of the Company.
F-55
16. DISTRIBUTIONS
The following table provides the tax characteristics of the 2020, 2019 and 2018 distributions paid:
| Years ended December 31, | ||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||
| (in thousands, except per share amounts) | ||||||||||||||||||||
| Common Share Distributions: | ||||||||||||||||||||
| Ordinary income | $ | $ | $ | |||||||||||||||||
| Capital gain | ||||||||||||||||||||
| Non-taxable distributions | ||||||||||||||||||||
| Distributions per share | $ | $ | $ | |||||||||||||||||
| Percentage classified as ordinary income | % | % | % | |||||||||||||||||
| Percentage classified as capital gain | % | % | % | |||||||||||||||||
| Percentage classified as non-taxable distribution | % | % | % | |||||||||||||||||
17. INCOME TAXES AND TAX CREDIT TRANSACTIONS
Income Tax Provision/Benefit
The Company accounts for income taxes using the asset and liability method. Under this method, deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to the differences between the financial statement carrying amounts of existing assets and liabilities and their respective income tax bases, and for net operating loss, capital loss and tax credit carryforwards. The deferred tax assets and liabilities are measured using the enacted income tax rates in effect for the year in which those temporary differences are expected to be realized or settled. The effect on the deferred tax assets and liabilities from a change in tax rates is recognized in earnings in the period when the new rate is enacted. However, deferred tax assets are recognized only to the extent that it is more likely than not that they will be realized based on consideration of all available evidence, including the future reversals of existing taxable temporary differences, future projected taxable income and tax planning strategies. Valuation allowances are provided if, based upon the weight of the available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized.
As of December 31, 2020 there were no deferred tax assets included within “Other assets” in the consolidated balance sheets. As of December 31, 2019, there were nominal deferred tax assets included within “Other assets” in the consolidated balance sheets.
The Company had no
For the year ended December 31, 2020, there was no deferred income tax expense and $0.2 million of current income tax benefit. For the year ended December 31, 2019, there was $0.1 million of deferred income tax expense and $0.1 million of current income tax benefit. For the year ended December 31, 2018, there was $0.3 million of deferred income tax expense and $0.1 million of current income tax expense. These amounts are included in “Income tax (provision) benefit” in the consolidated statements of operations.
F-56
18. ACCUMULATED OTHER COMPREHENSIVE INCOME (LOSS)
The following table details the components of accumulated other comprehensive income (loss) of the Parent Company and the Operating Partnership as of and for the three years ended December 31, 2020 (in thousands):
| Parent Company | Cash Flow Hedges | |||||||
| Balance at January 1, 2018 | $ | |||||||
| Change in fair market value during year | ||||||||
| Allocation of unrealized (gains)/losses on derivative financial instruments to noncontrolling interests | ( | |||||||
| Amortization of interest rate contracts reclassified from comprehensive income to interest expense | ||||||||
| Balance at December 31, 2018 | $ | |||||||
| Change in fair market value during year | ( | |||||||
| Allocation of unrealized (gains)/losses on derivative financial instruments to noncontrolling interests | ||||||||
| Amortization of interest rate contracts reclassified from comprehensive income to interest expense | ||||||||
| Balance at December 31, 2019 | $ | ( | ||||||
| Change in fair market value during year | ( | |||||||
| Allocation of unrealized (gains)/losses on derivative financial instruments to noncontrolling interests | ||||||||
| Amortization of interest rate contracts reclassified from comprehensive income to interest expense | ||||||||
| Balance at December 31, 2020 | $ | ( | ||||||
| Operating Partnership | Cash Flow Hedges | |||||||
| Balance at January 1, 2018 | $ | |||||||
| Change in fair market value during year | ||||||||
| Amortization of interest rate contracts reclassified from comprehensive income to interest expense | ||||||||
| Balance at December 31, 2018 | $ | |||||||
| Change in fair market value during year | ( | |||||||
| Amortization of interest rate contracts reclassified from comprehensive income to interest expense | ||||||||
| Balance at December 31, 2019 | $ | ( | ||||||
| Change in fair market value during year | ( | |||||||
| Amortization of interest rate contracts reclassified from comprehensive income to interest expense | ||||||||
| Balance at December 31, 2020 | $ | ( | ||||||
Over time, the unrealized gains and losses held in Accumulated Other Comprehensive Income (“AOCI”) will be reclassified to interest expense when the related hedged items are recognized in earnings. The current balance held in AOCI is expected to be reclassified to interest expense for realized losses on forecasted debt transactions over the related term of the debt obligation, as applicable. The Company expects to reclassify $0.8 million from AOCI into interest expense within the next twelve months.
19. SEGMENT INFORMATION
During the year ended December 31, 2020, the Company owned and managed its portfolio within five segments: (1) Philadelphia Central Business District (Philadelphia CBD), (2) Pennsylvania Suburbs, (3) Austin, Texas (4) Metropolitan Washington, D.C., and (5) Other. The Philadelphia CBD segment includes properties located in the City of Philadelphia, Pennsylvania. The Pennsylvania Suburbs segment includes properties in Chester, Delaware, and Montgomery counties in the Philadelphia suburbs. The Austin, Texas segment includes properties in the City of Austin, Texas. The Metropolitan Washington, D.C. segment includes properties in the District of Columbia, Northern Virginia and Southern Maryland. The Other segment includes properties located in Camden County, New Jersey and properties in New Castle County, Delaware. In addition to the five segments, the corporate group is responsible for cash and investment management, development of certain real estate properties during the construction period, and certain other general support functions. Land held for development and construction in progress is transferred to operating properties by region upon completion of the associated construction or project.
F-57
The following tables provide selected asset information as of December 31, 2020 and 2019 and results of operations of the Company’s reportable segments for the years ended December 31, 2020, 2019 and 2018 (in thousands):
| Real estate investments, at cost: | ||||||||||||||
| December 31, 2020 | December 31, 2019 | |||||||||||||
| Philadelphia CBD | $ | $ | ||||||||||||
| Pennsylvania Suburbs | ||||||||||||||
| Austin, Texas | ||||||||||||||
| Metropolitan Washington, D.C. | ||||||||||||||
| Other | ||||||||||||||
| Operating Properties | $ | $ | ||||||||||||
| Corporate | ||||||||||||||
| Right of use asset - operating leases, net | $ | $ | ||||||||||||
| Construction-in-progress | $ | $ | ||||||||||||
| Land held for development | $ | $ | ||||||||||||
| Prepaid leasehold interests in land held for development, net | $ | $ | ||||||||||||
Net operating income:
| Year Ended December 31, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total revenue | Operating expenses (a) | Net operating income (loss) | Total revenue | Operating expenses (a) | Net operating income (loss) | Total revenue | Operating expenses (a) | Net operating income (loss) | ||||||||||||||||||||||||||||||||||||||||||||||||
| Philadelphia CBD | $ | $ | ( | $ | $ | $ | ( | $ | $ | $ | ( | $ | ||||||||||||||||||||||||||||||||||||||||||||
| Pennsylvania Suburbs | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Austin, Texas | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Metropolitan Washington, D.C. | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Other | ( | ( | ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||
| Corporate | ( | ( | ( | ( | ( | ( | ||||||||||||||||||||||||||||||||||||||||||||||||||
Operating properties | $ | $ | ( | $ | $ | $ | ( | $ | $ | $ | ( | $ | ||||||||||||||||||||||||||||||||||||||||||||
(a)Includes property operating expense, real estate taxes and third party management expense.
| Unconsolidated real estate ventures: | ||||||||||||||||||||||||||||||||
| Investment in real estate ventures, at equity | Equity in income (loss) of real estate venture | |||||||||||||||||||||||||||||||
| As of | Years ended December 31, | |||||||||||||||||||||||||||||||
| December 31, 2020 | December 31, 2019 | 2020 | 2019 | 2018 | ||||||||||||||||||||||||||||
| Philadelphia CBD | $ | $ | $ | ( | $ | $ | ( | |||||||||||||||||||||||||
| Metropolitan Washington, D.C. | ( | ( | ( | |||||||||||||||||||||||||||||
| Mid-Atlantic Office JV | ||||||||||||||||||||||||||||||||
| MAP Venture | ( | ( | ( | ( | ( | |||||||||||||||||||||||||||
| Other | ||||||||||||||||||||||||||||||||
| Austin, Texas | ||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | ( | $ | ( | $ | ( | ||||||||||||||||||||||||
Net operating income (“NOI”) is a non-GAAP financial measure, which we define as total revenue less property operating expenses, real estate taxes, and third party management expenses. Property operating expenses that are included in determining NOI consist of costs that are necessary and allocable to our operating properties such as utilities, property-level salaries, repairs and maintenance, property insurance, management fees, and bad debt expense. General and administrative expenses that are not reflected in NOI primarily consist of corporate-level salaries, amortization of share awards and professional fees that are incurred as part of corporate office management. NOI presented by the Company may not be comparable to NOI reported by other companies that define NOI differently. NOI is the measure that is used by the Company to evaluate the operating performance of its real estate assets by segment. The Company believes NOI provides useful
F-58
information to investors regarding the financial condition and results of operations because it reflects only those income and expense items that are incurred at the property level. While NOI is a relevant and widely used measure of operating performance of real estate investment trusts, it does not represent cash flow from operations or net income as defined by GAAP and should not be considered as an alternative to those measures in evaluating our liquidity or operating performance. NOI does not reflect interest expenses, real estate impairment losses, depreciation and amortization costs, capital expenditures and leasing costs. The Company believes that net income (loss), as defined by GAAP, is the most appropriate earnings measure. The following is a reconciliation of consolidated net income (loss), as defined by GAAP, to consolidated NOI, (in thousands):
| Year Ended December 31, | ||||||||||||||||||||
| 2020 | 2019 | 2018 | ||||||||||||||||||
| Net income | $ | $ | $ | |||||||||||||||||
| Plus: | ||||||||||||||||||||
| Interest expense | ||||||||||||||||||||
| Interest expense - amortization of deferred financing costs | ||||||||||||||||||||
| Depreciation and amortization | ||||||||||||||||||||
| General and administrative expenses | ||||||||||||||||||||
| Equity in loss of Real Estate Ventures | ||||||||||||||||||||
| Provision for impairment | ||||||||||||||||||||
| Loss on early extinguishment of debt | ||||||||||||||||||||
| Less: | ||||||||||||||||||||
| Interest income | ||||||||||||||||||||
| Income tax (provision) benefit | ( | ( | ||||||||||||||||||
| Net gain on disposition of real estate | ||||||||||||||||||||
| Net gain on sale of undepreciated real estate | ||||||||||||||||||||
| Net gain on real estate venture transactions | ||||||||||||||||||||
| Gain on promoted interest in unconsolidated real estate venture | ||||||||||||||||||||
| Consolidated net operating income | $ | $ | $ | |||||||||||||||||
20. COMMITMENTS AND CONTINGENCIES
Legal Proceedings
The Company is involved from time to time in litigation on various matters, including disputes with tenants, disputes with vendors, employee disputes and disputes arising out of agreements to purchase or sell properties or joint ventures or disputes relating to state and local taxes. Given the nature of the Company’s business activities, these lawsuits are considered routine to the conduct of its business. The result of any particular lawsuit cannot be predicted, because of the very nature of litigation, the litigation process and its adversarial nature, and the jury system. The Company will establish reserves for specific legal proceedings when it determines that the likelihood of an unfavorable outcome is probable and when the amount of loss is reasonably estimable. The Company does not expect that the liabilities, if any, that may ultimately result from such legal actions will have a material adverse effect on the consolidated financial position, results of operations or cash flows of the Company.
Environmental
As an owner of real estate, the Company is subject to various environmental laws of federal, state, and local governments. The Company’s compliance with existing laws has not had a material adverse effect on its financial condition and results of operations, and the Company does not believe it will have a material adverse effect in the future. However, the Company cannot predict the impact of unforeseen environmental contingencies or new or changed laws or regulations on its current Properties or on properties that the Company may acquire.
F-59
Fair Value of Contingent Consideration
On April 2, 2015, the Company purchased 618 Market Street in Philadelphia, Pennsylvania. The allocated purchase price included contingent consideration of $2.0 million payable to the seller upon commencement of development. The liability was recorded at a fair value of $1.6 million and has fully accreted through interest expense to $2.0 million as of December 31, 2020. The fair value of this contingent consideration was determined using a probability weighted discounted cash flow model based on the period until development was originally expected to commence. The significant inputs to the discounted cash flow model were the discount rate and weighted probability scenarios. As the inputs were unobservable, the Company determined the inputs used to value this liability fall within Level 3 for fair value reporting.
Debt Guarantees
As of December 31, 2020, the Real Estate Ventures had aggregate indebtedness of $963.2 million. These loans are generally mortgage or construction loans, most of which are non-recourse to the Company, except for customary recourse carve-outs. As of December 31, 2020, the $150.0 million construction loan obtained by 4040 Wilson, for which the Company has guaranteed payment up to $41.3 million, is recourse to the Company. In addition, during construction undertaken by real estate ventures, including 4040 Wilson, the Company has provided and expects to continue to provide cost overrun and completion guarantees, with rights of contribution among partners or members in the real estate ventures, as well as customary environmental indemnities and guarantees of customary exceptions to nonrecourse provisions in loan agreements.
Other Commitments or Contingencies
In connection with the Schuylkill Yards Project, the Company entered into a neighborhood engagement program and, as of December 31, 2020, had $7.7 million of future fixed contractual obligations. The Company is also committed to make additional contributions under the program. As of December 31, 2020, the Company estimates that, as of December 31, 2020, these additional contributions, which are not fixed under the terms of agreement, will be $2.6 million.
In connection with the formation of the Commerce Square Venture, the Company has committed to investing an additional $20.0 million of preferred equity in the properties on a pari passu basis with its joint venture partner.
As part of the Company’s September 2004 acquisition of a portfolio of properties from The Rubenstein Company (which the Company refers to as the “TRC acquisition”), the Company acquired its interest in Two Logan Square, a 708,844 square foot office building in Philadelphia, Pennsylvania primarily through its ownership of a second and third mortgage secured by this property. This property is consolidated, as the borrower is a variable interest entity and the Company, through its ownership of the second and third mortgages, is the primary beneficiary. On October 21, 2020, the Company also acquired the $79.8 million first mortgage on the property from the third-party mortgage lender pursuant to an agreement with certain of the former owners. Under the agreement, the Company has agreed to not take title to Two Logan until the earlier of June 2026 or the occurrence of certain events related to the ownership interests of certain former owners. If the Company were to sell the restricted property before the expiration of the restricted period in a non-exempt transaction, the Company may be required to make significant payments to certain of the former owners of Two Logan Square on account of tax liabilities attributed to them. Additionally, the Company will be required to pay these certain former owners an amount estimated at approximately $0.9 million to redeem their residual interest in the fee owner of this property. The $0.9 million payment is included within "Other liabilities" on the consolidated balance sheets.
Similarly, as part of the 2013 acquisition of substantially all of the equity interests in the partnerships that own One and Two Commerce Square, the Company agreed, for the benefit of affiliates of the holder of the 1 % residual ownership interest in these properties, to not sell these two properties in certain taxable transactions prior to October 20, 2021 without the holder’s consent. The Commerce Square Venture Transaction did not violate such covenant.
As part of the Company’s acquisition of properties from time to time in tax-deferred transactions, the Company has agreed to provide certain of the prior owners of the acquired properties the right to guarantee Company indebtedness. If the Company were to seek to repay the indebtedness guaranteed by the prior owner before the expiration of the applicable agreement, the Company would be required to provide the prior owner an opportunity to guaranty qualifying replacement debt. These debt maintenance agreements may limit the Company’s ability to refinance indebtedness on terms favorable to the Company. As part of its 2013 acquisition of substantially all of the equity interests in the partnerships that own One and Two Commerce Square, the Company agreed, for the benefit of affiliates of the holder of the 1 % residual ownership interest in these
F-60
properties, to maintain qualifying mortgage debt through October 20, 2021, in the amounts of not less than $125.0 million on One Commerce Square and $100.0 million on Two Commerce Square. Similarly, the Company agreed with other contributors of assets that obligate it to maintain debt available for them to guaranty.
The Company invests in its properties and regularly incurs capital expenditures in the ordinary course of business to maintain the properties. The Company believes that such expenditures enhance its competitiveness. The Company also enters into construction, utility and service contracts in the ordinary course of business which may extend beyond one year. These contracts typically provide for cancellation with insignificant or no cancellation penalties.
21. SUBSEQUENT EVENTS
On February 2, 2021, the Company formed a joint venture with an unaffiliated third party to develop a 570,000 square foot mixed-use building at property under a long-term ground lease of 3025 JFK Boulevard, Philadelphia, Pennsylvania, also known as "Schuylkill Yards West." The estimated project cost is approximately $287 million, and the joint venture partner has agreed, subject to customary funding conditions, to fund up to approximately $58 million of the project costs in exchange for a 45 % preferred equity interest in the venture. We have agreed to provide a completion guaranty in connection with the development of the project.
F-61
Brandywine Realty Trust and Brandywine Operating Partnership, L.P.
Schedule II
Valuation and Qualifying Accounts
(in thousands)
| Description | Balance at Beginning of Year | Additions | Deductions (1) | Balance at End of Year | ||||||||||||||||||||||
| Allowance for doubtful accounts: | ||||||||||||||||||||||||||
| December 31, 2020 | $ | $ | $ | $ | ||||||||||||||||||||||
| December 31, 2019 | $ | $ | $ | $ | ||||||||||||||||||||||
| December 31, 2018 | $ | $ | $ | $ | ||||||||||||||||||||||
F-62
BRANDYWINE REALTY TRUST AND BRANDYWINE OPERATING PARTNERSHIP, L.P.
Schedule III
Real Estate and Accumulated Depreciation — December 31, 2020
(in thousands)
| Initial Cost | Gross Amount Which Carried December 31, 2020 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Property Name | City | State | Land | Building & Improvements | Net Improvements (Retirements) Since Acquisition | Land | Building & Improvements | Total (a) | Accumulated Depreciation at December 31, 2020 (b) | Year of Construction | Year Acquired | Depreciable Life | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| PENNSYLVANIA SUBURBS | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Six Tower Bridge (181 Washington Street) | Conshohocken | PA | $ | $ | $ | $ | $ | $ | $ | 1999 | 2013 | (c) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 426 West Lancaster Avenue | Devon | PA | 1990 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 52 Swedesford Square | East Whiteland Twp. | PA | ( | 1988 | 1998 | (c) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 640 Freedom Business Center (d) | King Of Prussia | PA | 1991 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 620 Freedom Business Center (d) | King Of Prussia | PA | 1986 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1000 First Avenue | King Of Prussia | PA | 1980 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1060 First Avenue | King Of Prussia | PA | 1987 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 630 Freedom Business Center Drive (d) | King Of Prussia | PA | 1989 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1020 First Avenue | King Of Prussia | PA | 1984 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1040 First Avenue | King Of Prussia | PA | 1985 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 610 Freedom Business Center Drive (d) | King Of Prussia | PA | 1985 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 650 Park Avenue | King Of Prussia | PA | ( | 1968 | 1998 | (c) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 600 Park Avenue | King Of Prussia | PA | 1964 | 1998 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 933 First Avenue | King Of Prussia | PA | ( | 2017 | N/A | (c) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 500 North Gulph Road | King Of Prussia | PA | 1979 | 1996 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 401 Plymouth Road | Plymouth Meeting | PA | 2001 | 2000 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Metroplex (4000 Chemical Road) | Plymouth Meeting | PA | 2007 | 2001 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 610 West Germantown Pike | Plymouth Meeting | PA | 1987 | 2002 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 600 West Germantown Pike | Plymouth Meeting | PA | 1986 | 2002 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 630 West Germantown Pike | Plymouth Meeting | PA | 1988 | 2002 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 620 West Germantown Pike | Plymouth Meeting | PA | 1990 | 2002 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 660 West Germantown Pike | Plymouth Meeting | PA | 1987 | 2012 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 351 Plymouth Road | Plymouth Meeting | PA | N/A | 2000 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 150 Radnor Chester Road | Radnor | PA | 1983 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| One Radnor Corporate Center | Radnor | PA | 1998 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 201 King of Prussia Road | Radnor | PA | 2001 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 555 Lancaster Avenue | Radnor | PA | 1973 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Four Radnor Corporate Center | Radnor | PA | 1995 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Five Radnor Corporate Center | Radnor | PA | 1998 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Three Radnor Corporate Center | Radnor | PA | 1998 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Two Radnor Corporate Center | Radnor | PA | 1998 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 130 Radnor Chester Road | Radnor | PA | ( | 1983 | 2004 | (c) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 170 Radnor Chester Road | Radnor | PA | 1983 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 200 Radnor Chester Road | Radnor | PA | 2014 | 2005 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 101 West Elm Street | W. Conshohocken | PA | 1999 | 2005 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1 West Elm Street | W. Conshohocken | PA | 1999 | 2005 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Four Tower Bridge (200 Barr Harbor Drive) | W. Conshohocken | PA | 1998 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
F-63
| Initial Cost | Gross Amount Which Carried December 31, 2020 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Property Name | City | State | Land | Building & Improvements | Net Improvements (Retirements) Since Acquisition | Land | Building & Improvements | Total (a) | Accumulated Depreciation at December 31, 2020 (b) | Year of Construction | Year Acquired | Depreciable Life | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| PHILADELPHIA CBD | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Cira Centre (2929 Arch Street) | Philadelphia | PA | ( | 2005 | N/A | (c) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Three Logan Square (1717 Arch Street) | Philadelphia | PA | 1990 | 2010 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| One Logan Square (130 North 18th Street) | Philadelphia | PA | 1998 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Two Logan Square (100 North 18th Street) | Philadelphia | PA | 1988 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Cira Centre South Garage (129 South 30th Street) (d) | Philadelphia | PA | 2010 | N/A | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1900 Market Street | Philadelphia | PA | 1981 | 2012 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 3020 Market Street | Philadelphia | PA | 1959 | 2011 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 618-634 Market Street | Philadelphia | PA | 1966 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| FMC Tower at Cira Centre South (2929 Walnut Street) | Philadelphia | PA | 2016 | N/A | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2100 Market Street | Philadelphia | PA | N/A | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1505-11 Race Street | Philadelphia | PA | 1922 | 2020 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| The Bulletin Building (3025 Market Street) (e) | Philadelphia | PA | 1953 | 2017 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 3001-3003 JFK Boulevard (f) | Philadelphia | PA | N/A | 2018 | N/A | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 3025 JFK Boulevard (f) | Philadelphia | PA | N/A | 2018 | N/A | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| METROPOLITAN WASHINGTON, D.C. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 6600 Rockledge Drive | Bethesda | MD | 1981 | 2006 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2340 Dulles Corner Boulevard | Herndon | VA | 1987 | 2006 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1676 International Drive | McLean | VA | 1999 | 2006 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 8260 Greensboro Drive | McLean | VA | 1980 | 2006 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 8521 Leesburg Pike | Vienna | VA | 1984 | 2006 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| AUSTIN, TX | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Building 1 | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Building 2 | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Building 3 | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Building 4 | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Building 5 | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Building 6 | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Building 8 | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 11501 Burnet Road - Parking Garage | Austin | TX | 1991 | 2015 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Four Points Centre 3 (11120 Four Points Drive) | Austin | TX | 2019 | 2013 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| One Barton Skyway (1501 South MoPac Expressway) | Austin | TX | 1999 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Two Barton Skyway (1601 South MoPac Expressway) | Austin | TX | 2000 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Three Barton Skyway (1221 South MoPac Expressway) | Austin | TX | 2001 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Four Barton Skyway (1301 South MoPac Expressway) | Austin | TX | 2001 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
F-64
| Initial Cost | Gross Amount Which Carried December 31, 2020 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Property Name | City | State | Land | Building & Improvements | Net Improvements (Retirements) Since Acquisition | Land | Building & Improvements | Total (a) | Accumulated Depreciation at December 31, 2020 (b) | Year of Construction | Year Acquired | Depreciable Life | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Four Points Centre (11305 Four Points Drive) | Austin | TX | 2008 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| River Place - Building 1 (6500 River Place Boulevard) | Austin | TX | 2000 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| River Place - Building 2 (6500 River Place Boulevard) | Austin | TX | 2000 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| River Place - Building 3 (6500 River Place Boulevard) | Austin | TX | 2000 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| River Place - Building 4 (6500 River Place Boulevard | Austin | TX | 2000 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| River Place - Building 5 (6500 River Place Boulevard) | Austin | TX | 2001 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| River Place - Building 6 (6500 River Place Boulevard) | Austin | TX | 2001 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| River Place - Building 7 (6500 River Place Boulevard) | Austin | TX | 2002 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Quarry Lake II (4516 Seton Center Parkway) | Austin | TX | 1998 | 2018 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| OTHER | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 10 Foster Avenue | Gibbsboro | NJ | 1983 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 7 Foster Avenue | Gibbsboro | NJ | 1983 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 2 Foster Avenue | Gibbsboro | NJ | 1974 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 4 Foster Avenue | Gibbsboro | NJ | 1974 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1 Foster Avenue | Gibbsboro | NJ | 1972 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 5 U.S. Avenue | Gibbsboro | NJ | 1987 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 5 Foster Avenue | Gibbsboro | NJ | 1968 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Main Street - Plaza 1000 | Voorhees | NJ | 1988 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Main Street - Piazza | Voorhees | NJ | 1990 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Main Street - Promenade | Voorhees | NJ | 1988 | 1997 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 920 North King Street | Wilmington | DE | 1989 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 300 Delaware Avenue | Wilmington | DE | 1989 | 2004 | (c) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total: | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
F-65
(a)Reconciliation of Real Estate:
The following table reconciles the real estate investments from January 1, 2018 to December 31, 2020 (in thousands):
| 2020 | 2019 | 2018 | ||||||||||||||||||
| Balance at beginning of year | $ | $ | $ | |||||||||||||||||
| Additions: | ||||||||||||||||||||
| Acquisitions | ||||||||||||||||||||
| Capital expenditures and assets placed into service | ||||||||||||||||||||
| Less: | ||||||||||||||||||||
| Dispositions/impairments/placed into redevelopment | ( | ( | ( | |||||||||||||||||
| Retirements | ( | ( | ( | |||||||||||||||||
| Balance at end of year | $ | $ | $ | |||||||||||||||||
| Per consolidated balance sheet | $ | $ | $ | |||||||||||||||||
The aggregate cost for federal income tax purposes is $2.9 billion as of December 31, 2020.
(b)Reconciliation of Accumulated Depreciation:
The following table reconciles the accumulated depreciation on real estate investments from January 1, 2018 to December 31, 2020 (in thousands):
| 2020 | 2019 | 2018 | ||||||||||||||||||
| Balance at beginning of year | $ | $ | $ | |||||||||||||||||
| Additions: | ||||||||||||||||||||
| Depreciation expense | ||||||||||||||||||||
| Less: | ||||||||||||||||||||
| Dispositions/impairments/placed into redevelopment | ( | ( | ( | |||||||||||||||||
| Retirements | ( | ( | ( | |||||||||||||||||
| Balance at end of year | $ | $ | $ | |||||||||||||||||
| Per consolidated balance sheet | $ | $ | $ | |||||||||||||||||
(c)Depreciation of the buildings and improvements are calculated over lives ranging from the life of the lease to 55 years.
(d)Land value represents unamortized prepaid ground lease.
(e)Reflects original construction date. Significant improvements were made to The Bulletin Building in 2012.
F-66
Exhibit 3.2.19
ADMITTED PARTNERS OF
BRANDYWINE OPERATING PARTNERSHIP, L.P.
AS OF DECEMBER 31, 2020
Brandywine Holdings I, Inc.
Brandywine Realty Trust
R. Randle Scarborough
Steven L. Shapiro
Gloria Kantor
Hirschman Family Trust
Helen Geffner
Trust UTW of Theodore Geffner
D. Kent Dahlke
Kenneth L. Hatfield
Michael G. Tombari
James J. Gorman
Christopher J. Knauer
The Jon Q. Reynolds and Ann S. Reynolds Family Trust
The Revocable Trust Declaration of Thomas K. Terrill and Susan Jean Terrill
The Redford Family Survivor’s Trust
The Judith B. Brown 1992 Trust
The Peter M. Reynolds and Christina A. Reynolds Family Trust
C. Thomas Martz
Karen Leigh Brown
Tara Lynne Brown
Kristen Ann Stinnett-Brown
The Reynolds Family Partners
GENERAL PARTNER
Brandywine Realty Trust
Exhibit 10.9
BRANDYWINE REALTY TRUST
SECOND AMENDED AND RESTATED
EXECUTIVE DEFERRED COMPENSATION PLAN
(As Amended and Restated, Effective January 1, 2021)
ARTICLE 1
PURPOSE
The Board of Trustees of Brandywine Realty Trust (the “Board”) adopted the Brandywine Realty Trust Executive Deferred Compensation Plan (the “Plan”), effective January 1, 2005 (the “Effective Date”). Effective March 31, 2006 (the “Transfer Date”), all of the assets, liabilities and obligations under the Prentiss Properties Executive Choice Share Deferral Plan, the Prentiss Properties Executive Choice Deferred Compensation Plan, the Prentiss Properties Executive Choice Deferred Compensation Plan for Trustees and the Prentiss Properties Executive Choice Share Deferral Plan for Trustees, were assumed by the Plan, and such Prior Plans were terminated. The Plan was amended and restated, effective January 1, 2013 (the “First Restatement Date”) to incorporate certain changes with respect to payment events and make other clarifying changes. This second amendment and restatement, effective January 1, 2021 (the “Second Restatement Date”), is entered into in order to implement a class year deferral election structure and to make certain other plan design and clarifying changes. The second amendment and restatement is not intended to affect the rights or accruals of any Participant (as defined below), prior elections relating to such Participant’s Distribution Option Account(s) (as defined below), or such Participant’s continued participation in the Plan.
Prior to the Effective Date, the Pre-2005 Brandywine Realty Trust Executive Deferred Compensation Plan (the “Pre-2005 EDCP”) was in effect. In order to preserve the favorable tax treatment available to deferrals under the Pre-2005 EDCP due to the American Jobs Creation Act of 2004, the regulations and Internal Revenue guidance issued thereunder (collectively, the “AJCA”), the Board froze the Pre-2005 EDCP with respect to amounts earned and vested on and after the Effective Date. Amounts earned and vested prior to the Effective Date are and will remain subject to the terms of the Pre-2005 EDCP.
All amounts earned and vested on and after the Effective Date are subject to the terms of the Plan. The Plan retains many of the attributes of the Pre-2005 EDCP, but is modified so as to achieve compliance with the requirements of the AJCA. The Board reserves the right to amend the Plan, either retroactively or prospectively, in whatever respect is required to achieve compliance with the requirements of the AJCA.
ARTICLE 2
DEFINITIONS
“Additional Company Contributions” are contributions credited to the Participant’s Retirement Distribution Account by the Company pursuant to Section 4.6.
“Affiliate” means: (a) any firm, partnership, or corporation that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Brandywine Realty Trust; (b) any other organization similarly related to Brandywine Realty Trust that is designated as such by the Board; and (c) any other entity 50% or more of the economic interests in which are owned, directly or indirectly, by Brandywine Realty Trust.
“Beneficiary” means the person or persons designated as such in accordance with Section 11.4.
1
“Board” means the Board of Trustees of Brandywine Realty Trust or its delegate.
“Board Remuneration” means for any Trustee, for any Plan Year, the annual retainer and Board meeting fees; provided that committee fees and informal Board discussion fees shall not be “Board Remuneration;” provided further that such remuneration shall not be eligible for Matching Contributions, Profit Sharing Contributions, Supplemental Profit Sharing Contributions or Additional Company Contributions.
“Change of Control” means, within the meaning of Treas. Reg. 1.409A-3(i)(5) or any succeeding regulations, a change in the ownership or effective control of Brandywine Realty Trust, or a change in the ownership of a substantial portion of the assets of Brandywine Realty Trust.
“Change of Control Distribution Option” means the Distribution Option pursuant to which benefits are payable in accordance with Section 7.2. The Change of Control Distribution Option, if elected, applies with respect to amounts deferred on and after January 1, 2013 only.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
“Committee” means the Brandywine Realty Trust Plan Committee, which shall consist of at least one person, the member(s) of which shall be designated from time to time by the President and Chief Executive Officer of Brandywine Realty Trust and which may include the President and Chief Executive Officer.
“Company” means Brandywine Realty Trust and each such subsidiary, division or Affiliate as may from time to time participate in the Plan by or pursuant to authorization of the Board.
“Compensation” means, for any Eligible Employee, for any Plan Year, the Participant’s total taxable income from the Company earned for services rendered for such Plan Year, including, but not limited to, base earnings, regular bonuses, commissions and overtime, plus pre-tax contributions and elective contributions that are not includible in gross income under section 125, 402(a)(8) or 402(h) of the Code, and excluding income recognized in connection with share-related options and payments, reimbursements and other expense allowances, fringe benefits (cash and noncash), moving expenses, deferred compensation and welfare benefits, as determined pursuant to guidelines established and revised by the Plan Administrator from time to time and communicated to Eligible Employees.
“Compensation Committee” means the Compensation Committee of the Board.
“Compensation Deferral” means that portion of Compensation or Board Remuneration as to which a Participant has made an annual election to defer receipt until the date specified under the Retirement Distribution Option, the Flexible Distribution Option, the Change of Control Distribution Option or the Deferred Board Remuneration Option, as applicable.
2
“Compensation Limit” means the compensation limit of section 401(a)(17) of the Code, as in effect on the first day of the Plan Year.
“Deferred Board Remuneration Account” means an Account maintained for a Participant to which Compensation Deferrals are credited pursuant to the Deferred Board Remuneration Option.
“Deferred Board Remuneration Option” means the Distribution Option pursuant to which benefits are payable in accordance with Section 7.3.
“Disability” means a disability of an Employee or Trustee which renders such Employee or Trustee unable to perform the full extent of his duties and responsibilities by reason of his illness or incapacity which entitles that Employee or Trustee to receive Social Security Disability Income under the Social Security Act, as amended, and the regulations promulgated thereunder.
“Disabled” means having a Disability. The determination of whether a Participant is Disabled shall be made by the Plan Administrator, whose determination shall be conclusive; provided that,
ARTICLE 1.if a Participant is bound by the terms of an employment agreement between the Participant and the Employer, whether the Participant is “Disabled” for purposes of the Plan shall be determined in accordance with the procedures set forth in said employment agreement, if such procedures are therein provided; and
(i)a Participant bound by such an employment agreement shall not be determined to be Disabled under the Plan any earlier than he would be determined to be disabled under his employment agreement; provided that, a Participant may not be determined to be Disabled unless such Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of disability of not less than 12 months.
“Distribution Date” means the date determined in accordance with the rules and procedures established by the Plan Administrator.
“Distribution Option” means the four distribution options which are available under the Plan, consisting of the Retirement Distribution Option, the Flexible Distribution Option, the Change of Control Distribution Option and the Deferred Board Remuneration Option.
“Distribution Option Account(s)” means, with respect to a Participant, the Retirement Distribution Account(s), a Flexible Distribution Account(s), and/or the Deferred Board Remuneration Account(s) established on the books of account of the Company, pursuant to Section 5.1.
“Earnings Crediting Options” means the deemed investment options selected by the Participant from time to time pursuant to which deemed earnings are credited to the Participant’s Distribution Option Accounts other than the Employer Stock Fund.
3
“Effective Date” means January 1, 2005.
“Eligible Employee” means (1) an Employee who is a member of a group of selected management and/or highly compensated Employees of the Company and who is designated by the Plan Administrator as eligible to participate in the Plan, or (2) each Employee who, as of the Transfer Date, was eligible to participate in a Prior Plan.
“Employee” means any individual employed by the Company on a regular, full-time basis (in accordance with the personnel policies and practices of the Company), including citizens of the United States employed outside of their home country and resident aliens employed in the United States; provided, however, that to qualify as an “Employee” for purposes of the Plan, the individual must be a member of a group of “key management or other highly compensated employees” within the meaning of Sections 201, 301 and 401 of the Employee Retirement Income Security Act of 1974, as amended; provided further, that the following individuals shall not be “Employees:” (1) individuals who are not classified by the Company as its employees, even if they are retroactively recharacterized as employees by a third party or the Company; (2) individuals for whom the Company does not report wages on Form W-2 or who are not on an employee payroll of the Company; or (3) individuals who have entered into an agreement with the Company which excludes them from participation in employee benefit plans of the Company (whether or not they are treated or classified as employees for certain specified purposes that do not include eligibility in the Plan).
“Employer” means Brandywine Realty Trust and its Affiliates.
“Employer Stock Fund” means a hypothetical investment fund consisting entirely of Shares.
“Enrollment Agreement” means the authorization form which an Eligible Employee or Trustee files with the Plan Administrator to participate in the Plan.
“Excess Bonus” means that portion of a Compensation Deferral as defined in Section 4.6.
“Flexible Distribution Account” means an account maintained for a Participant to which Share Awards, Performance-Based Compensation and Compensation Deferrals are credited pursuant to the Flexible Distribution Option.
“Flexible Distribution Option” means the Distribution Option pursuant to which benefits are payable in accordance with Section 7.4.
“Matching Contributions” are contributions credited to the Participant’s Retirement Distribution Account(s) by the Company pursuant to Section 4.3.
“Offeree” means an individual designated by the Plan Administrator who has received a written offer of employment from the Company and would be an Eligible Employee upon commencement of employment with the Company.
4
“Participant” means an Eligible Employee or Trustee who has filed a completed and executed Enrollment Agreement with the Plan Administrator or its designee and is participating in the Plan in accordance with the provisions of Article 4. In the event of the death or incompetency of a Participant, the term shall mean his personal representative or guardian. An individual shall remain a Participant until that individual has received full distribution of any amount credited to the Participant’s Distribution Option Account(s).
“Performance-Based Compensation” means, for any Eligible Employee, Compensation or a Share Award that constitutes “performance-based compensation” within the meaning of Treas. Reg. 1.409A-1(e), or any succeeding regulations, that is payable with respect to a Performance Period, as determined by the Plan Administrator.
“Performance Period” means a period of at least 12 months during which a Participant may earn Performance-Based Compensation.
“Plan” means this Brandywine Realty Trust Executive Deferred Compensation Plan, as amended from time to time.
“Plan Administrator” means the Committee.
“Plan Year” means the 12-month period beginning on each January 1 and ending on the following December 31.
“Prior Plan” means each of (1) the Prentiss Properties Executive Choice Share Deferral Plan, (2) the Prentiss Properties Executive Choice Deferred Compensation Plan, (3) the Prentiss Properties Executive Choice Deferred Compensation Plan for Trustees, and (4) the Prentiss Properties Executive Choice Share Deferral Plan for Trustees and such other legacy deferred compensation arrangements as are designated as a Prior Plan by the Plan Administrator.
“Prior Plan Sub-Account” means the portion of an Eligible Employee’s Account attributable to amounts rolled over to the Plan from a Prior Plan as described in Section 4.1(e).
“Profit Sharing Contributions” are contributions credited to the Participant’s Retirement Distribution Account(s) by the Company, based on a percentage, as determined each year by the Company, of the Participant’s Compensation in excess of the Compensation Limit. To the extent that a contribution is not deemed to be a Profit Sharing Contribution, it will be considered Compensation classified as a bonus for purposes of the Plan.
“Re-Deferral Election” means an election to change the form and commencement date of payment with respect to all or a portion of a Distribution Option Account by filing an election change consistent with the requirements of the Treas. Reg. 1.409A-2(b), or any succeeding regulations. The Plan Administrator reserves the right to and discretion to reject and disallow a Re-Deferral Election for any reason and at any time. A Re-Deferral Election as to a Distribution Option Account: (1) must be made at least 12 months prior to the date on which the first scheduled payment from the Distribution Option Account was to occur; (2) will not be effective as to any payment from such Distribution Option Account scheduled to be made within 12
5
months of the Re-Deferral Election; and (3) other than a Re-Deferral Election made in connection with a Participant becoming Disabled or dying, the first payment to which such Re-Deferral Election applies must be deferred by at least five (5) years from the originally scheduled payment date.
“Retirement” means the termination of the Participant’s Service with the Employer (for reasons other than death) at or after age 55.
“Retirement Distribution Account” means an Account maintained for a Participant to which Share Awards, Performance-Based Compensation, Compensation Deferrals, Matching Contributions, Additional Company Contributions, Profit Sharing Contributions, and Supplemental Profit Sharing Contributions are credited pursuant to the Retirement Distribution Option.
“Retirement Distribution Option” means the Distribution Option pursuant to which benefits are payable in accordance with Section 7.1.
“Service” means the period of time during which an employment relationship exists between an Employee and the Company, including any period during which the Employee is on an approved leave of absence, whether paid or unpaid. “Service” also includes employment with an Affiliate if an Employee transfers directly between the Company and the Affiliate.
“Share” means a common share of beneficial interest, $.01 par value per share, of Brandywine Realty Trust.
“Share Award” means Shares subject to an award under the terms of the Brandywine Realty Trust Amended and Restated 1997 Long-Term Incentive Plan (as amended from time to time), including Restricted Performance Share Unit awards granted thereunder, or any other equity based compensation plan, program or arrangement sponsored by the Company, as determined by the Plan Administrator.
“Supplemental Profit Sharing Contributions” are contributions credited to the Retirement Distribution Account of certain Participants by the Company pursuant to Section 4.5.
“Termination Date” means the date of termination of a Participant’s Service with the Employer, determined without reference to any compensation continuing arrangement or severance benefit arrangement that may be applicable.
“Trustee” means a member of the Board who receives remuneration payable for services as a member of the Board.
“Unforeseeable Emergency” means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in section 152(a) of the Code) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.
6
“401(k) Plan” means the Brandywine Realty Trust 401(k) Profit Sharing Plan and any other qualified plan sponsored by the Company that includes a cash-or-deferred arrangement described in section 401(k) of the Code and in which a Participant in the Plan is eligible to participate.
ARTICLE 3
ADMINISTRATION OF THE PLAN AND DISCRETION
3.1The Committee, as Plan Administrator, shall have full power and authority to interpret the Plan, to prescribe, amend and rescind any rules, forms and procedures as it deems necessary or appropriate for the proper administration of the Plan and to make any other determinations and to take any other such actions as it deems necessary or advisable in carrying out its duties under the Plan. All action taken by the Plan Administrator arising out of, or in connection with, the administration of the Plan or any rules adopted thereunder, shall, in each case, lie within its sole discretion, and shall be final, conclusive and binding upon the Company, the Board, all Employees and Trustees, all Beneficiaries and all persons and entities having an interest therein. The Committee, may, however, delegate to any person or entity any of its powers or duties under the Plan. To the extent of any such delegation, the delegate shall become the Plan Administrator responsible for administration of the Plan, and references to the Plan Administrator shall apply instead to the delegate. Any action by the Committee assigning any of its responsibilities to specific persons who are all trustees, officers, or employees of the Company shall not constitute delegation of the Committee’s responsibility but rather shall be treated as the manner in which the Committee has determined internally to discharge such responsibility.
3.2The Plan Administrator shall serve without compensation for its services unless otherwise determined by the Board. All expenses of administering the Plan shall be paid by the Company.
3.3The Company shall indemnify and hold harmless the Plan Administrator from any and all claims, losses, damages, expenses (including counsel fees) and liability (including any amounts paid in settlement of any claim or any other matter with the consent of the Board) arising from any act or omission of such member, except when the same is due to gross negligence or willful misconduct.
3.4Any decisions, actions or interpretations to be made under the Plan by the Company, the Board or the Plan Administrator shall be made in its respective sole discretion, not as a fiduciary and need not be uniformly applied to similarly situated individuals and shall be final, binding and conclusive on all persons interested in the Plan.
ARTICLE 4
PARTICIPATION
4.1Election to Participate.
(a)Timing of Election to Participate. Any Eligible Employee or Trustee may enroll in the Plan effective as of the first day of a Plan Year by filing a completed and fully
7
executed Enrollment Agreement with the Plan Administrator by a date set by the Plan Administrator.
(i) Base Salary/Board Remuneration. With respect to the deferral of Compensation that is classified by the Company as base salary or the deferral of Board Remuneration, an executed Enrollment Agreement must be filed by December 31 of the Plan Year preceding the Plan Year in which such base salary or Board Remuneration is to be earned, or such earlier time as may be established by the Plan Administrator.
(ii) Bonus.
(A)With respect to the deferral of Compensation that is classified by the Company as bonus, an executed Enrollment Agreement must be filed by December 31 of the Plan Year preceding the Plan Year in which such bonus is earned, or such earlier time as may be established by the Plan Administrator.
(B)The Board may, as a condition of a bonus award, require that it be deferred under the Plan and may prescribe vesting and investment provisions with respect to such award, and may establish separate deadlines by which Enrollment Agreements may be filed with respect to such an award.
(iii) Performance-Based Compensation.
(A)With respect to the deferral of Performance-Based Compensation for any Eligible Employee who will not be eligible for retirement at any time during the Performance Period for such Performance-Based Compensation, an executed Enrollment Agreement must be filed no later than six months prior to the end of the Performance Period during which such Performance-Based Compensation is earned, subject to such other administrative rules, procedures and earlier deadlines as may be set by the Plan Administrator and communicated with reasonable advance notice to Eligible Employees.
(B)With respect to the deferral of Performance-Based Compensation for any Eligible Employee who is or will become eligible for retirement at any time during the Performance Period for such Performance-Based Compensation, an executed Enrollment Agreement must be filed by December 31 of the Plan Year preceding the Plan Year in which the Performance Period for such Performance-Based Compensation begins, or such earlier time as may be established by the Plan Administrator.
(iv) Share Awards. With respect to the deferral of a Share Award that does not qualify as Performance-Based Compensation, an executed Enrollment Agreement
8
must be filed by December 31 of the Plan Year preceding the Plan Year in which such Share Award is granted, subject to such other administrative rules, procedures and earlier deadlines as may be set by the Plan Administrator and communicated with reasonable advance notice to Eligible Employees.
(v) Revocation of Election. Elections to defer Compensation, Performance-Based Compensation, Share Awards and Board Remuneration are irrevocable at the end of the election period established by the Plan Administrator, provided that, the Plan Administrator in its sole discretion, may accept revocations of elections up to the last day of the open enrollment period that applies with respect to such election.
(b)Amount of Deferral. Pursuant to said Enrollment Agreement, the Eligible Employee or Trustee shall irrevocably elect the percentages by which (as a result of payroll deduction) an amount equal to any whole percentage of the Participant’s Compensation, Performance-Based Compensation, Share Award or Board Remuneration will be deferred. Up to 85 percent (85%) of base salary, 100 percent (100%) of bonus, 100 percent (100%) of Performance-Based Compensation, 100 percent (100%) of a Share Award, and 100 percent (100%) of Board Remuneration may be deferred; provided however, that deferrals will be made after required non-deferrable payroll tax deductions and any deductions elected by the Participant (including, but not limited to, deductions for payment of health insurance premiums). The Plan Administrator may establish minimum amounts that may be deferred under this Section 4.1 and may change such standards from time to time. Any such limit shall be communicated by the Plan Administrator to the Participants prior to the commencement of a Plan Year.
(c)Accounts to Which Amounts Credited. Pursuant to said Enrollment Agreement, the Eligible Employee shall elect the Distribution Option Accounts to which such amounts will be credited, and shall provide such other information as the Plan Administrator shall require. Board Remuneration will only be credited to a Deferred Board Remuneration Account.
(d)Form of Distribution from Accounts.
(i) This Section 4.1(d)(i) shall be effective with respect to deferrals of Participant’s Compensation, Performance-Based Compensation, Share Awards or Board Remuneration and (in each case) related earnings for services performed during calendar years beginning prior to January 1, 2021. The first Enrollment Agreement filed by an Eligible Employee must set forth the Participant’s election as to the time and manner of distribution from the Flexible Distribution Account. The first Enrollment Agreement filed by an Eligible Employee must set forth the time and manner of distribution with respect to amounts credited to the Retirement Distribution Account and whether the Change of Control Distribution Option (for deferrals made for Plan Years beginning on and after January 1, 2013) will apply. Subsequent Enrollment Agreements must also set forth the Participant’s election as to the time and form of distribution from each additional Flexible Distribution Account and whether the Change of Control Distribution Option will apply. The first Enrollment Agreement filed by a Trustee must set forth the manner of distribution with respect to amounts credited to the Deferred Board Remuneration
9
Account and whether the Change of Control Distribution Option (for deferrals made for Plan Years beginning on and after January 1, 2013) will apply. Notwithstanding the foregoing, the manner of distribution for all amounts invested in the Employer Stock Fund as of the applicable Distribution Date shall be in the form of Shares (and cash for fractional Shares).
(ii) With respect to deferrals of Compensation, Performance-Based Compensation, Share Awards or Board Remuneration and (in each case) related earnings for services performed by an Eligible Employee or a Trustee during each Plan Year beginning after December 31, 2020, this Section 4.1(d)(ii) shall apply. An Eligible Employee must file separate Enrollment Agreement(s) for each Plan Year setting forth the Participant’s election as to the time and manner of distribution from the Flexible Distribution Account and/or the Retirement Distribution Account established to receive deferrals in connection with services performed by the Participant during such Plan Year. A Trustee must file a separate Enrollment Agreement for each Plan Year setting forth the Participant’s election as to the time and manner of distribution from the Deferred Board Remuneration Account established to receive deferrals in connection with services performed by the Trustee during such Plan Year. In each instance, the Participant must also indicate on the Enrollment Agreement(s) for each Plan Year whether the Change of Control Distribution Option will apply.
(e)Prior Plan Accounts. Notwithstanding anything herein to the contrary, the balance of each Prior Plan Sub-Account as of the Transfer Date shall include the portion of such Prior Plan Participant’s account under the Prior Plan that was rolled over into the Plan as of the Transfer Date. Amounts rolled over from the Prior Plan to the Plan shall be deemed invested in the Earnings Crediting Option as determined by the Plan Administrator as the appropriate successor investment fund on the date those amounts are credited to the Prior Plan Sub-Account, based on the deemed investment of such amounts under the applicable Prior Plan immediately prior to the Transfer Date. Amounts in a Prior Plan Sub-Account shall be distributed to the Participant in accordance with the election or elections the Eligible Employee has made under the applicable Prior Plan with respect to such amounts.
4.2Special Rules for Filing of Elections.
(a)New Hires and Offerees. The Plan Administrator may, in its discretion, permit an Employee or Offeree who becomes an Eligible Employee to enroll in the Plan for the Plan Year in which the Employee or Offeree became an Eligible Employee by filing a completed and fully executed Enrollment Agreement, in accordance with Section 4.1, prior to or as soon as practicable after the date the Employee or Offeree becomes an Eligible Employee but, in any event, not later than 30 days after such date. Notwithstanding the foregoing, however, any election by an Eligible Employee to defer Share Awards, Compensation and Performance-Based Compensation pursuant to this Section 4.2(a) shall apply only to Share Awards, Compensation and Performance-Based Compensation earned by or awarded to the Eligible Employee after the date on which such Enrollment Agreement is filed. Alternatively, the Plan Administrator may require an Employee or Offeree who becomes an Eligible Employee after the beginning of a Plan
10
Year to enroll in the next subsequent Plan Year, by filing a completed and fully executed Enrollment Agreement, in accordance with Section 4.1 during the next scheduled open enrollment period that Brandywine Realty Trust conducts an open enrollment for the Plan.
(b)Promotions. The Plan Administrator may, in its discretion, permit an Employee who first becomes an Eligible Employee after the beginning of a Plan Year due to a promotion, to enroll in the Plan for that Plan Year by filing a completed and fully executed Enrollment Agreement, in accordance with Section 4.1, as soon as practicable following the date the Employee becomes an Eligible Employee but, in any event, not later than 30 days after such date. Notwithstanding the foregoing, however, any election by an Eligible Employee to defer Share Awards, Compensation and Performance-Based Compensation pursuant to this Section 4.2(b) shall apply only to Share Awards, Compensation and Performance-Based Compensation earned by or awarded to the Eligible Employee after the date on which such Enrollment Agreement is filed.
(c)New Trustees. A Trustee whose election as a member of the Board first becomes effective in a Plan Year may enroll in the Plan for that Plan Year by filing a completed and fully executed Enrollment Agreement, in accordance with Section 4.1, as soon as practicable following the effective date of such Trustee’s election but, in any event, not later than 30 days after the effective date of such election. Notwithstanding the foregoing, however, any election by a Trustee to defer Board Remuneration pursuant to this Section 4.2 shall apply only to such Board Remuneration earned by the Trustee after the date on which such Enrollment Agreement is filed.
4.3Matching Contributions.
(a)If: (1) the dollar amount of the matching contributions under the 401(k) Plan for the Plan Year was limited due to the application of the provisions of Section 401(m) of the Code; (2) the percentage of the Participant’s Compensation that could be deferred under the 401(k) Plan was limited to an amount less than 10% (or such other percentage that may become effective after the Effective Date) because of other Code limitations; or (3) to the extent that a Participant’s compensation for purposes of the 401(k) Plan is reduced to an amount that is below the Compensation Limit in any Plan Year by reason of deferrals made under this Plan (regardless of whether, prior to reduction, it was in excess of such limitation), a Matching Contribution shall be contributed under the Plan equal to the amount of matching contributions that would have been made to the 401(k) Plan but for such limitations, but only if and to the extent the Participant has deferred additional amounts of Compensation to the Plan at least equal to the amount that would have been required to have been deferred under the 401(k) Plan in order to support such additional matching contributions in the absence of such limitations.
(b)In its discretion, the Company may make Matching Contributions, which, if made, shall be credited to a Participant’s Retirement Distribution Account(s). Generally, the Matching Contribution shall be equal to the “matching percentage” (30%, as of the Effective Date) set forth in the 401(k) Plan, multiplied by a specified percentage (10%, as of the Effective Date) of the Participant’s Compensation in excess of the Compensation Limit that is deferred under Section 4.1 or 4.2(a) or (b), as applicable.
11
4.4Profit Sharing Contributions. The Company may credit to each Participant’s Retirement Distribution Account(s) a Profit Sharing Contribution. Profit Sharing Contributions will be credited as frequently as determined by the Plan Administrator.
4.5Supplemental Profit Sharing Contributions. To the extent that a Participant’s compensation for purposes of the 401(k) Plan is reduced to an amount that is below the Compensation Limit in any Plan Year by reason of deferrals made under this Plan (regardless of whether, prior to reduction, it was in excess of such limitation), a Supplemental Profit Sharing Contribution shall be credited to the Retirement Distribution Account of such Participant, at least annually, equal to the specified profit sharing percentage for the applicable Plan Year (if any), multiplied by the excess, if any, of (a) the lesser of (i) the Participant’s Compensation or (ii) the Compensation Limit over (b) the amount of the Participant’s compensation that is taken into account under the 401 (k) Plan.
4.6Additional Company Contributions.
(a)If, pursuant to Section 4.1 or 4.2, a Participant (other than a Participant who is a Trustee) elects to defer receipt of 25% of his annual bonus (if any), which may or may not qualify as Performance-Based Compensation, and deems that such deferral be invested in the Employer Stock Fund, then, with respect to any part of such bonus in excess of 25% that is deferred and invested in the Employer Stock Fund (“Excess Bonus”), the Compensation Committee, in its sole discretion, may provide for an Additional Company Contribution for each such Participant for a Plan Year equal to a specified percentage of the Excess Bonus to be contributed to such Participant’s Retirement Distribution Account and deemed invested in the Employer Stock Fund. Notwithstanding the preceding provisions of this Section 4.6(a), if the Compensation Committee determines in its sole discretion that a Participant has met the Brandywine Realty Trust target shareholding requirements, to the extent that such a Participant elects to defer receipt of his annual bonus and deems that such deferral be invested in the Employer Stock Fund, which deferral shall also be referred to as “Excess Bonus” for purposes of the Plan, the Compensation Committee, in its sole discretion, may provide for an Additional Company Contribution for each such Participant for a Plan Year equal to a specified percentage of such Excess Bonus to be contributed to such Participant’s Retirement Distribution Account and deemed invested in the Employer Stock Fund. For purposes of this Section 4.6(a), the specified percentage of the Excess Bonus to be contributed to a Participant’s Retirement Distribution Account and deemed invested in the Employer Stock Fund shall be 15% unless the Compensation Committee, in its sole discretion, determines otherwise.
(b)The Excess Bonus and associated Additional Company Contribution shall not be subject to Participant investment direction for two years from the date of crediting; provided, however, that Excess Bonus and associated Additional Company Contributions shall not be subject to Participant investment direction on and after April 1, 2007. Prior to April 1, 2007, if, prior to the expiration of two years from the date on which the Excess Bonus and Additional Company Contribution are credited, (1) the Participant directs that all or a portion of the Excess Bonus or the associated Additional Company Contribution be deemed invested in an Earnings Crediting Option other than the Employer Stock Fund or (2) the Participant receives a
12
distribution pursuant to Article 10, any portion of which consists of all or a portion of such Excess Bonus or Additional Company Contribution, then the Participant shall forfeit all of such Additional Company Contribution.
ARTICLE 5
DISTRIBUTION OPTION ACCOUNTS
5.1Distribution Option Accounts. The Plan Administrator shall establish and maintain separate Distribution Option Accounts with respect to a Participant. A Participant’s Distribution Option Accounts shall consist of Retirement Distribution Account(s), Flexible Distribution Account(s), and/or a Deferred Board Remuneration Account(s), as applicable. The amount of Compensation, Performance-Based Compensation and Board Remuneration , and Shares subject to a Share Award, deferred pursuant to Section 4.1 or Section 4.2 shall be credited by the Company to the Participant’s Distribution Option Account(s), in accordance with the Distribution Option irrevocably elected by the Participant in each Enrollment Agreement, as soon as reasonably practicable following the close of the payroll period, bonus payment date, or, in the case of Trustees, the regularly scheduled payment date, or, in the case of Share Awards, the vesting date, for which the deferred Compensation, Performance-Based Compensation and Board Remuneration and Share Awards would otherwise be payable or vested, as determined by the Plan Administrator in its sole discretion. Any amount once taken into account as Compensation, Performance-Based Compensation or Board Remuneration for purposes of this Plan shall not be taken into account thereafter. Matching Contributions, Additional Company Contributions, Profit Sharing Contributions, and Supplemental Profit Sharing Contributions, when credited, as determined by the Plan Administrator in its sole discretion, are credited only to the Retirement Distribution Account(s). The Participant’s Distribution Option Accounts shall be reduced by the amount of payments or Share distributions made by the Company to the Participant or the Participant’s Beneficiary pursuant to this Plan.
5.2Earnings on Distribution Option Accounts.
(a)General. A Participant’s Distribution Option Accounts shall be credited with earnings in accordance with the Earnings Crediting Options elected by the Participant from time to time. Participants may allocate their Retirement Distribution Account(s), Flexible Distribution Account(s), and/or their Deferred Board Remuneration Account(s) among the Earnings Crediting Options available under the Plan only in whole percentages of not less than one percent (1%); provided, however, that the portion of a Participant’s Distribution Option Account that is attributable to a Share Award shall only be invested in the Employer Stock Fund. The Company reserves the right, on a prospective basis, to add or delete Earnings Crediting Options.
(b)Investment Options.
(i) Investment Performance. The deemed rate of return, positive or negative, credited under each Earnings Crediting Option is based upon the actual investment performance of (A) the Employer Stock Fund, (B) the corresponding investment portfolios of the EQ Advisers Trust, open-end investment management
13
companies under the Investment Company Act of 1940, as amended from time to time, or (C) such other investment fund(s) as the Company may designate from time to time, and shall equal the total return of such investment fund net of asset based charges, including, without limitation, money management fees, fund expenses and mortality and expense risk insurance contract charges.
(ii) Dividends. Dividends creditable to deferral amounts and Share Awards invested in the Employer Stock Fund shall be treated as a separate arrangement subject to the provisions of Appendix A.
5.3Earnings Crediting Options. Notwithstanding that the rates of return credited to Participants’ Distribution Option Accounts under the Earnings Crediting Options are based upon the actual performance of the investment options specified in Section 5.2, or such other investment funds as the Company may designate, the Company shall not be obligated to invest any Compensation, Performance-Based Compensation or Board Remuneration deferred by Participants under this Plan, Matching Contributions, Additional Company Contributions, Profit Sharing Contributions, Supplemental Profit Sharing Contributions, or any other amounts, in such portfolios or in any other investment funds.
5.4Changes in Earnings Crediting Options.
(a)General. Except as otherwise provided in Section 5.4(b) below, a Participant may change the Earnings Crediting Options to which his Distribution Option Accounts are deemed to be allocated, subject to such rules as may be determined by the Plan Administrator, provided that except as the Plan Administrator may otherwise determine in light of legal restrictions on changes, the frequency of permitted changes among Earnings Crediting Options shall not be less than four times per Plan Year. Each such change may include (a) reallocation of the Participant’s existing Accounts in whole percentages of not less than one percent (1%), and/or (b) change in investment allocation of amounts to be credited to the Participant’s Accounts in the future, as the Participant may elect. The effect of a Participant’s change in Earnings Crediting Options shall be reflected in the Participant’s Accounts as soon as reasonably practicable following the Plan Administrator’s receipt of notice of such change, as determined by the Plan Administrator in its sole discretion.
(b)Employer Stock Fund Changes. For deferral elections effective on and after January 1, 2007, amounts or Share Awards deferred and invested in the Employer Stock Fund may not be reallocated to any other Earnings Crediting Option and shall instead remain invested in the Employer Stock Fund until distributed. For amounts deferred prior to January 1, 2007, (i) a Participant may change the Earnings Crediting Option to which the portions of his Distribution Option Accounts are invested in the Employer Stock Fund subject to such rules as may be determined by the Plan Administrator, (ii) provided that such reallocation election is received on or prior to March 31, 2007, and (iii) further provided that such deferral amounts that remain invested in the Employer Stock Fund as of April 1, 2007 may not be reallocated thereafter to any other Earnings Crediting Option and shall instead remain invested in the Employer Stock Fund until distributed.
14
5.5Valuation of Accounts. Except as otherwise provided in Section 5.7, the value of a Participant’s Distribution Option Accounts as of any date shall equal the amounts theretofore credited to such Accounts, including any earnings (positive or negative) deemed to be earned on such Accounts in accordance with Section 5.2 and Section 5.4 through such date, less the amounts theretofore deducted from such Accounts.
5.6Statement of Accounts. The Plan Administrator shall provide to each Participant, not less frequently than quarterly, a statement in such form as the Plan Administrator deems desirable for setting forth the balance standing to the credit of each Participant in each of his Distribution Option Accounts.
5.7Distributions from Accounts. Any distribution made to or on behalf of a Participant from one or more of his Distribution Option Accounts in an amount which is less than the entire balance of any such Account shall be made pro rata from each of the Earnings Crediting Options to which such Account is then allocated. For purposes of any provision of the Plan relating to distribution of benefits to Participants or Beneficiaries, the value of a Participant’s Distribution Option Accounts shall be determined as of a date as soon as reasonably practicable preceding the Distribution Date, as determined by the Plan Administrator in its sole discretion. In the case of any benefit payable in the form of a cash lump sum, the value of a Participant’s Distribution Option Accounts, as determined pursuant to this Section 5.7, shall be distributed. In the case of any benefit payable in the form of annual installments, as of any payment date, the amount of each installment payment shall be determined as the quotient of (a) the value of the Participant’s Distribution Option Account subject to distribution, as determined pursuant to this Section 5.7, divided by (b) the number of remaining annual installments immediately preceding the payment date. In the case of any benefit attributable to a deferral that was effective on or after January 1, 2007, or in the case of any benefit attributable to a deferral effective prior to January 1, 2007 and invested in the Employer Stock Fund as of April 1, 2007, such benefit shall only be payable in the form of Shares (and cash for fractional Shares).
5.8Small Benefit Cash-Out. If a Participant or Beneficiary becomes eligible for a distribution in accordance with the provisions of Sections 7.1(b), 7.2(b), 7.4(c), 8.1 or 9.1, relating to payments following termination of Service, Disability or death, the Plan Administrator reserves the right to cash out such Participant or Beneficiary as soon as administratively practicable provided that the value of the Participant’s Distribution Option Accounts, together with any other deferred amounts under agreements, methods, programs, or other arrangements treated with the Plan as a single nonqualified deferred compensation plan under Treas. Reg. 1.409A-1(c)(2) (or any succeeding regulations), is not greater than the applicable dollar amount under Section 402(g)(1)(B) of the Code as of the Participant’s termination of Service, Disability or death.
ARTICEL 6
DISTRIBUTION OPTIONS
6.1Election of Distribution Option. In the completed and fully executed Enrollment Agreements filed with the Plan Administrator, a Participant shall elect the time and manner of
15
payment in accordance with Section 4.1(d). Annually, the Participant shall allocate his or her deferrals among the Distribution Options in such increments as may be prescribed by the Plan Administrator; provided that, deferrals of Board Remuneration shall automatically be allocated to a Deferred Board Remuneration Account.
6.2Retirement Distribution Option. Subject to Section 7.1, distribution of the Participant’s Retirement Distribution Account(s), if any, shall commence not earlier than the thirteenth month following the Participant’s Retirement.
6.3Change of Control Distribution Option. For deferrals made for Plan Years beginning on and after January 1, 2013, subject to Section 7.2, if the Change of Control Distribution Option is elected by the Participant, distribution of the Participant’s Retirement Distribution Account(s), Deferred Board Remuneration Account(s) and/or Flexible Distribution Account(s), if any, shall be paid, or commence to be paid within 90 days of a Change of Control.
6.4Deferred Board Remuneration Option. Subject to Section 7.3, distribution of the Participant’s Deferred Board Remuneration Account(s), if any, shall commence following the Participant’s termination of service as a Trustee.
6.5Flexible Distribution Option. Subject to Section 7.4, each of the Participant’s Flexible Distribution Accounts shall be distributed commencing in the year elected by the Participant in the Enrollment Agreement pursuant to which such Flexible Distribution Account was established; provided, however, no such election may provide that a distribution be made prior to the third Plan Year beginning after the Plan Year for which the first deferral election is made with regard to that Flexible Distribution Account.
ARTICLE 7
BENEFITS TO PARTICIPANTS
7.1Benefits Under the Retirement Distribution Option. Benefits under the Retirement Distribution Option shall be paid to a Participant as follows:
(a)Benefits Upon Retirement.
(i) General. In the case of a Participant whose Service with the Employer terminates on account of his Retirement, the Participant’s Retirement Distribution Account(s) shall be distributed in one of the following methods, as elected by the Participant in writing either in an Enrollment Agreement or in a separate election made in accordance with Section 7.1(b): (x) in a lump sum or (y) in annual installments over a period of up to 10 years.
(ii) Time of Payment. Any benefit payable in accordance with this paragraph shall be paid or commence, as elected by the Participant in accordance with this Section 7.1, but not earlier than the thirteenth month following the Participant’s
16
Retirement. The valuation and timing of payments shall be subject to administrative processes prescribed by the Plan Administrator.
(iii) Default Form and Time of Payment. Unless elected otherwise in accordance with Section 7.1(a) or Section 7.2(a), the default form of payment of a Participant’s Retirement Distribution Account shall be a lump sum (including Shares for applicable amounts under the Employer Stock Fund) paid on the Distribution Date next following the thirteenth month following the Participant’s Retirement.
(b)Benefits Upon Termination of Employment. If a Participant’s Service with the Employer terminates prior to the occurrence of a Change of Control and prior to the earliest date on which the Participant is eligible for Retirement (other than due to death or becoming Disabled), the Participant’s Retirement Distribution Account(s) will be distributed in a lump sum (including Shares for applicable amounts under the Employer Stock Fund) at the earliest Distribution Date that is not earlier than the thirteenth month following the Participant’s Termination Date. Within the 30-day period following the Participant’s Termination Date, the Participant may elect to change the form and commencement date of payment of the Participant’s Retirement Distribution Account(s) by making a Re-Deferral Election. Limitations on the form and commencement date under a Re-Deferral Election shall be determined by the Plan Administrator in its sole discretion.
(c)Changes in Distribution Elections. Except as otherwise provided herein, a Participant may elect to change the form and commencement date of payment of the Participant’s Retirement Distribution Account by filing a Re-Deferral Election. A Participant may continue to elect to re-defer receipt of his Retirement Distribution Account(s) that was the subject of an earlier Re-Deferral Election by submitting a new Re-Deferral Election. Limitations on the form and commencement date under a Re-Deferral Election shall be determined by the Plan Administrator in its sole discretion.
(d)Forfeiture. If a Participant terminates Service, other than due to Retirement, Disability or death, prior to being credited with three (3) years of service, as determined pursuant to the terms of the 401(k) Plan, all or a portion of the Participant’s Retirement Distribution Account(s) attributable to Matching Contributions and Supplemental Profit Sharing Contributions shall be forfeited, as follows:
| Termination Prior to Completion of Year | Portion Forfeited | ||||
| 1 | 100% | ||||
| 2 | 80% | ||||
| 3 | 50% | ||||
7.2Benefits Under the Change of Control Distribution Option. Benefits under the Change of Control Distribution Option shall be paid to a Participant as follows:
17
(a)Change of Control Distributions. In the case of a Participant who continues in Service with the Employer and who makes a Change of Control Distribution Option election, upon the occurrence of a Change of Control prior to the occurrence of the distribution event that would otherwise trigger distribution of the Participant’s Retirement Distribution Account(s), Deferred Board Remuneration Account(s), and/or Flexible Distribution Account(s), the Participant’s Retirement Distribution Account(s), Deferred Board Remuneration Account(s), and/or Flexible Distribution Account(s) shall be paid to the Participant commencing in accordance with Section 6.3 and in the form elected by the Participant in writing either in the Enrollment Agreement or in a separate election made in accordance with Section 7.2(b): (i) in a lump sum or (ii) in annual installments over a period of up to 10 years. If a Change of Control occurs and a Participant has commenced receiving distribution of the Participant’s Retirement Distribution Account(s), Deferred Board Remuneration Account(s), and/or Flexible Distribution Account(s), the Participant shall continue receiving distribution payments in accordance with the Participant’s election for the Participant’s Retirement Distribution Account(s), Deferred Board Remuneration Account(s), and/or Flexible Distribution Account(s).
(b)Default Form and Time of Payment. Unless elected otherwise in accordance with Section 7.2(a), the default form of payment if a Participant elects the Change of Control Distribution Option shall be a lump sum (including Shares for applicable amounts under the Employer Stock Fund) paid on the Distribution Date next following the date of the Change of Control.
7.3Benefits Under the Deferred Board Remuneration Option.
(a)General.
(i) Form of Payment. Benefits under the Deferred Board Remuneration Option shall be paid to a Participant following his termination of service as a Trustee. Each Deferred Board Remuneration Account shall be distributed in one of the following methods, as elected by the Participant in writing in the Enrollment Agreement: (x) in a lump sum or (y) in annual installments over a period of up to 10 years.
(ii) Time of Payment. Any benefit payable in accordance with this paragraph shall be paid or commence, as elected by the Participant in accordance with this Section 7.3, at any time following the Participant’s termination of service as a Trustee, but not earlier than the thirteenth month following such termination of service. The valuation and timing of payments shall be subject to administrative processes prescribed by the Plan Administrator.
(iii) Default Form and Time of Payment. Unless elected otherwise in accordance with Section 7.2(a) or this Section 7.3(a), the default form of payment of a Participant’s Deferred Board Remuneration Account shall be a lump sum (including Shares for applicable amounts under the Employer Stock Fund) paid on the Distribution Date next following the thirteenth month following the Participant’s termination of service as a Trustee.
18
(b)Changes in Distribution Elections. A Participant may elect to change the form and commencement date of payment of the Participant’s Deferred Board Remuneration Account(s), consistent with Section 7.3(a), by filing a Re-Deferral Election within the 30-day period following the Participant’s termination of service as a Trustee. Limitations on the form and commencement date under a Re-Deferral Election shall be determined by the Plan Administrator in its sole discretion.
7.4Benefits Under the Flexible Distribution Account. Benefits under the Flexible Distribution Option shall be paid to a Participant as follows:
(a)General. Each of the Participant’s Flexible Distribution Accounts shall be distributed in one lump sum, or up to 5 annual installments as elected (including Shares for applicable amounts under the Employer Stock Fund) on January 31 of the Plan Year irrevocably elected by the Participant in the Enrollment Agreement pursuant to which such Flexible Distribution Account was established.
(b)Changes in Distribution Elections. A Participant may elect to change the form and commencement date of payment of any of the Participant’s Flexible Distribution Accounts by filing a Re-Deferral Election not later than January 31 of the Plan Year preceding the Plan Year in which the originally elected payment commencement date occurs. Limitations on the form and commencement date under a Re-Deferral Election shall be determined by the Plan Administrator in its sole discretion.
(c)Benefits Upon Termination of Employment. In the case of a Participant whose Service with the Employer terminates prior to the date on which any of the Participant’s Flexible Distribution Accounts would otherwise be distributed, other than on account of death, Disability or a due to the occurrence of a Change of Control if the Participant has made a Change of Control Distribution Option election, distribution shall be made at the time elected by the Participant prior to his Termination Date; provided, however, that the Participant may elect to change the form and commencement date of payment of any of the Participant’s Flexible Distribution Accounts by making a Re-Deferral Election. Limitations on the form and commencement date under a Re-Deferral Election shall be determined by the Plan Administrator in its sole discretion; provided that, the Company reserves the right to override the Participant’s election and distribute any of the Participant’s Flexible Distribution Accounts in a lump sum not earlier than 13 months following the Termination Date to the extent permitted by Section 409A of the Code.
ARTICLE 8
DISABILITY
In the event a Participant becomes Disabled, the Participant’s right to make any further deferrals under this Plan shall terminate as of the date the Participant terminates due to Disability. The Participant’s Distribution Option Accounts shall continue to be credited with earnings in accordance with Section 5.2 until such Accounts are fully distributed. The
19
Participant’s Distribution Option Accounts, including any Distribution Option Account as to which distributions have already commenced and notwithstanding any election to the contrary, shall be paid in a lump sum (including Shares for applicable amounts under the Employer Stock Fund) at the earliest Distribution Date within 90 days following such Participant’s becoming Disabled. The Participant may not change the form or commencement date of payment of the Participant’s Distribution Option Accounts payable on account of Disability by making a Re-Deferral Election.
ARTICLE 9
SURVIVOR BENEFITS
In the event of a Participant’s death, payment of all Distribution Option Accounts, including any Distribution Option Account as to which distributions have already commenced, shall be made in a lump sum (including Shares for applicable amounts under the Employer Stock Fund) within 90 days following the Participant’s death to the Participant’s Beneficiary(ies). Neither the Participant nor Beneficiary may change the form or commencement date of payment of the Participant’s Distribution Option Accounts payable on account of death by making a Re-Deferral Election.
ARTICLE 10
EMERGENCY BENEFIT
In the event that the Plan Administrator, upon written request of a Participant, determines, in its sole discretion, that the Participant has suffered an Unforeseeable Emergency, the Company shall pay to the Participant from the Participant’s Distribution Option Account, as soon as practicable following such determination, an amount necessary to meet such Unforeseeable Emergency, in a manner consistent with the AJCA, after deduction of any and all taxes as may be required pursuant to Section 11.10 (the “Emergency Benefit”). Emergency Benefits shall be paid first from the Participant’s Flexible Distribution Accounts, if any, to the extent the balance of one or more of such Flexible Distribution Accounts is sufficient to meet the emergency, in the order in which such Accounts would otherwise be distributed to the Participant. If the distribution exhausts the Flexible Distribution Account(s), the Retirement Distribution Account(s), and the Deferred Board Remuneration Account(s), if necessary. With respect to that portion of any Distribution Option Account which is distributed to a Participant as an Emergency Benefit in accordance with this Article 10, no further benefit shall be payable to the Participant under this Plan. Notwithstanding anything in this Plan to the contrary, a Participant who receives an Emergency Benefit in any Plan Year shall not be entitled to make any further deferrals for the remainder of such Plan Year.
ARTICLE 11
MISCELLANEOUS
20
11.1Amendment and Termination. The Plan may be amended, suspended, discontinued or terminated at any time by the Plan Administrator; provided, however, that no such amendment, suspension, discontinuance or termination shall reduce or in any manner adversely affect the rights of any Participant with respect to benefits that are payable or may become payable under the Plan based upon the balance of the Participant’s Accounts as of the effective date of such amendment, suspension, discontinuance or termination. This Section 11.1 shall be applied consistent with Treas. Reg. 1.409A-3(j)(4)(ix), or any succeeding regulations.
11.2Change of Control.
(a)Notwithstanding Section 11.1, in the event of a Change of Control, Brandywine Realty Trust, or its successor, shall have the discretion, with respect to amounts standing to the credit of Participants’ Distribution Option Accounts, to terminate the Plan and provide for a complete distribution of all amounts due to Participants under the Plan, consistent with and to the extent permitted by, Treas. Reg. 1.409A-3(j)(4)(ix), or any succeeding regulations.
(b)In the event of a Change of Control in which Shares are converted into cash or equity, amounts deemed invested in the Employer Stock Fund as of such Change of Control shall be deemed to be converted in the same manner as Shares; provided if holders of Shares are given a choice between forms of consideration, the amounts deemed invested in the Employer Stock Fund as of such Change of Control shall be deemed converted into that form of consideration chosen by the majority of the holders of Shares.
11.1.Claims Procedure.
(a)Claim. A person who believes that he is being denied a benefit to which he is entitled under the Plan (hereinafter referred to as a “Claimant”) may file a written request for such benefit with the Plan Administrator, setting forth the claim.
(b)Claim Decision. Upon receipt of a claim, the Plan Administrator shall advise the Claimant within ninety (90) days of receipt of the claim whether the claim is denied. If special circumstances require more than ninety (90) days for processing, the Claimant will be notified in writing within ninety (90) days of filing the claim that the Plan Administrator requires up to an additional ninety (90) days to reply. The notice will explain what special circumstances make an extension necessary and indicate the date a final decision is expected to be made. If the Claimant does not receive a written denial notice or notice of an extension within ninety (90) days, the Claimant may consider the claim denied and may then request a review of denial of the claim, as described below. If the claim is denied in whole or in part, the Claimant shall be provided a written opinion, using language calculated to be understood by the Claimant, setting forth:
(i)The specific reason or reasons for such denial;
21
(ii)The specific reference to pertinent provisions of this Plan on which such denial is based;
(iii)A description of any additional material or information necessary for the Claimant to perfect his claim and an explanation why such material or such information is necessary;
(iv)Appropriate information as to the steps to be taken if the Claimant wishes to submit the claim for review; and
(v)The time limits for requesting a review under subsection (c) and for review under subsection (d) hereof and a statement regarding the Claimant’s right to bring suit under section 502(a) of ERISA following an adverse determination on review.
(c)Request for Review. Within sixty (60) days after the receipt by the Claimant of the written opinion described above, the Claimant may request in writing that the Plan Administrator review its determination. The Claimant or his duly authorized representative may, but need not, review the pertinent documents and submit issues and comments in writing for consideration by the Plan Administrator. If the Claimant does not request a review of the initial determination within such sixty (60) day period, the Claimant shall be barred and estopped from challenging the determination.
(d)Review of Decision. Within sixty (60) days after the Plan Administrator’s receipt of a request for review, it will review the initial determination. If special circumstances require that the sixty (60) day time period be extended, the Plan Administrator will so notify the Claimant and will render the decision as soon as possible, but no later than one hundred twenty (120) days after receipt of the request for review. After considering all materials presented by the Claimant, the Plan Administrator will render a written opinion, written in a manner calculated to be understood by the Claimant, setting forth the specific reasons for the decision, containing specific references to the pertinent provisions of the Plan on which the decision is based, including a statement that the Claimant is entitled upon request and at no charge reasonable access to, and copies of, all documents, records and other information relevant to the Claimant’s claim for benefits, and including a statement of the right of the Claimant to bring suit under section 502(a) of ERISA after the Claimant has exhausted the Plan’s claims review procedures set forth above
11.4Designation of Beneficiary. Each Participant may designate a Beneficiary or Beneficiaries (which Beneficiary may be an entity other than a natural person) to receive any payments which may be made following the Participant’s death. Such designation may be changed or canceled at any time without the consent of any such Beneficiary. Any such designation, change or cancellation must be made in a form approved by the Plan Administrator and shall not be effective until received by the Plan Administrator, or its designee. If no Beneficiary has been named, or the designated Beneficiary or Beneficiaries shall have predeceased the Participant, the Beneficiary shall be the Participant’s estate. If a Participant
22
designates more than one Beneficiary, the interests of such Beneficiaries shall be paid in equal shares, unless the Participant has specifically designated otherwise.
11.5Limitation of Participant’s Right. Nothing in this Plan shall be construed as conferring upon any Participant any right to continue in Service or to continue to serve as a Trustee, nor shall it interfere with the rights of the Company to terminate the employment of any Participant and/or to take any personnel action affecting any Participant without regard to the effect which such action may have upon such Participant as a recipient or prospective recipient of benefits under the Plan. Any amounts payable hereunder shall not be deemed salary or other compensation to a Participant for the purposes of computing benefits to which the Participant may be entitled under any other arrangement established by the Employer for the benefit of its employees.
11.6No Limitation on Company Actions. Nothing contained in the Plan shall be construed to prevent the Company from taking any action which is deemed by it to be appropriate or in its best interest. No Participant, Beneficiary, or other person shall have any claim against the Company as a result of such action.
11.7Obligations to Company. If a Participant becomes entitled to a distribution of benefits under the Plan, and if at such time the Participant has outstanding any debt, obligation, or other liability representing an amount owing to the Employer, then the Employer may offset such amount owed to it against the amount of benefits otherwise distributable. Such determination shall be made by the Plan Administrator.
11.8Nonalienation of Benefits. Except as expressly provided herein, no Participant or Beneficiary shall have the power or right to transfer (otherwise than by will or the laws of descent and distribution), alienate, or otherwise encumber the Participant’s or Beneficiary’s interest under the Plan. The Company’s obligations under this Plan are not assignable or transferable, except to (a) any corporation or partnership which acquires all or substantially all of the Company’s assets or (b) any corporation or partnership into which the Company may be merged or consolidated. A Participant’s or Beneficiary’s interest under the Plan is not assignable or transferable pursuant to a domestic relations order. The provisions of the Plan shall inure to the benefit of each Participant and the Participant’s Beneficiaries, heirs, executors, administrators or successors in interest.
11.9Protective Provisions. Each Participant shall cooperate with the Company by furnishing any and all information requested by the Company in order to facilitate the payment of benefits hereunder, taking such physical examinations as the Company may deem necessary and taking such other relevant action as may be requested by the Company. If a Participant refuses to cooperate, the Company shall have no further obligation to the Participant under the Plan, other than payment to such Participant of the then current balance of the Participant’s Distribution Option Accounts in accordance with his prior elections.
11.10Taxes. The Company may make such provisions and take such action as it may deem appropriate for the withholding of any taxes which the Company is required by any law or regulation of any governmental authority, whether Federal, state or local, to withhold in
23
connection with any benefits under the Plan, including, but not limited to, the withholding of appropriate sums from any amount otherwise payable to the Participant (or his Beneficiary). Each Participant, however, shall be responsible for the payment of all individual tax liabilities relating to any such benefits.
11.11Unfunded Status of Plan. The Plan is an “unfunded” plan for tax and Employee Retirement Income Security Act purposes. This means that the value of a Participant’s Distribution Option Accounts is based on the value assigned to a hypothetical bookkeeping account, which is invested in hypothetical shares of investments funds available under the Plan. As the nature of the investment fund which forms the “index” or “meter” for the valuation of the bookkeeping account changes, the valuation of the bookkeeping account changes as well. The amount owed to a Participant is based on the value assigned to the bookkeeping account. Brandywine Realty Trust may decide to use a “rabbi trust” to anticipate its potential Plan liabilities, and it may attempt to have Plan investments mirror the hypothetical investments deemed credited to the bookkeeping accounts. However, the liability to pay the benefits is Brandywine Realty Trusts’, and the assets of the rabbi trust are potentially available to satisfy the claims of non-participant creditors of Brandywine Realty Trust.
11.12Severability. If any provision of this Plan is held unenforceable, the remainder of the Plan shall continue in full force and effect without regard to such unenforceable provision and shall be applied as though the unenforceable provision were not contained in the Plan.
11.13Governing Law. The Plan shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania, without reference to the principles of conflict of laws.
11.14Headings. Headings are inserted in this Plan for convenience of reference only and are to be ignored in the construction of the provisions of the Plan.
11.15Gender, Singular and Plural. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, or neuter, as the identity of the person or persons may require. As the context may require, the singular may read as the plural and the plural as the singular.
11.16Notice. Any notice or filing required or permitted to be given to the Plan Administrator under the Plan shall be sufficient if in writing and hand delivered, or sent by registered or certified mail, to Brandywine Realty Trust, 401 Plymouth Road, Suite 500, Plymouth Meeting, PA 19462, Attention: Chief Accounting Officer, or to such other entity as the Plan Administrator may designate from time to time. Such notice shall be deemed given as to the date of delivery, or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification.
11.17Section 409A of the Code. The Plan is intended to comply with the requirements of section 409A of the Code, and shall in all respects be administered in accordance with section 409A of the Code. Notwithstanding anything in the Plan to the contrary, distributions may only be made under the Plan upon an event and in a manner permitted by section 409A of the Code,
24
including the requirement that “specified employees,” as such term is defined in section 409A of the Code, may not receive distributions prior to the end of the six-month period following a “separation from service” (within the meaning of such term under section 409A of the Code). If a distribution is not made by the designated payment date under the Plan, the payment shall be made by December 31 of the calendar year in which the designated payment date occurs. To the extent that any provision of the Plan would cause a conflict with the requirements of section 409A of the Code, or would cause the administration of the Plan to fail to satisfy the requirements of section 409A of the Code, such provision shall be deemed null and void to the extent permitted by applicable law. A Participant cannot designate the year of a payment except in accordance with the rules relating to payment elections under section 409A of the Code.
25
APPENDIX A
DIVIDENDS
Dividends creditable to deferral amounts and Share Awards invested in the Employer Stock Fund shall either be (A) paid in cash as soon as administratively practicable following the dividend payment date if the Participant has made a separate election under an Enrollment Agreement to receive such dividends in cash, or (B) credited to the Participant’s account and invested in an Earnings Crediting Option other than the Employer Stock Fund, as elected by the Participant. The Committee reserves the right, as to the Employer Stock Fund, to prescribe such other rules regarding the manner in which deemed dividends are invested or distributed. The dividend election opportunity, as described in this Appendix A, is intended to constitute a separate deferral arrangement within the meaning of the AJCA.
26
Exhibit 21
List of Subsidiaries
AAPOP 2, L.P., a Delaware limited partnership
B Chestnut LP, a Delaware limited partnership
BDN 250 King of Prussia I, LP, a Delaware limited partnership
BDN 250 King of Prussia II, LP, a Delaware limited partnership
BDN Four Points LP, a Delaware limited partnership
BDN Four Points Land LP, a Delaware limited partnership
BDN Four Points Preserve LP, a Delaware limited partnership
BDN Millennium LP, a Delaware limited partnership
BDNNOVA Momentum LP, a Delaware limited partnership
BDN Old Eagle School I, LP, a Delaware limited partnership
BDN Old Eagle School II, LP, a Delaware limited partnership
BDN Old Eagle School III, LP, a Delaware limited partnership
BDN Old Eagle School IV, LP, a Delaware limited partnership
BDN Old Eagle School V, LP, a Delaware limited partnership
BDN Old Eagle School VI, LP, a Delaware limited partnership
BDN Old Eagle School VII, LP, a Delaware limited partnership
BDN Quarry Lake II, LP, a Delaware limited partnership
BDN Radnor Hospitality Property I, LP, a Delaware limited partnership
BDN Radnor Hospitality Property II, LP, a Delaware limited partnership
BDN Radnor Property I, LP, a Delaware limited partnership
BDN Radnor Property II, LP, a Delaware limited partnership
BDN Real Estate Fund I LP, a Delaware limited partnership
Bellet Holding GP, LP, a Delaware limited partnership
Brandywine Acquisition Partners LP, a Delaware limited partnership
Brandywine Austin Properties I LP, a Texas limited partnership
Brandywine Byberry LP, a Delaware limited partnership
Brandywine Cira Chestnut I LP. a Delaware limited partnership
Brandywine Cira Garage I LP, a Delaware limited partnership
Brandywine Cira, L.P., a Pennsylvania limited partnership
Brandywine Cira South LP, a Delaware limited partnership
Brandywine Cira Walnut I LP, a Delaware limited partnership
Brandywine Commerce I LP, a Delaware limited partnership
Brandywine Commerce II LP, a Delaware limited partnership
Brandywine F.C., L.P., a Pennsylvania limited partnership
Brandywine Garza Office I, LP, a Delaware limited partnership
Brandywine Garza Office II, LP, a Delaware limited partnership
Brandywine Garza Office III, LP, a Delaware limited partnership
Brandywine Grande B, L.P., a Delaware limited partnership
Brandywine Grande C, L.P., a Delaware limited partnership
Brandywine Greensboro Drive LP, a Delaware limited partnership
Brandywine International Drive LP, a Delaware limited partnership
Brandywine Industrial Partnership, L.P., a Delaware limited partnership
Brandywine Metroplex, L.P., a Pennsylvania limited partnership
Brandywine Midatlantic, LP, a Delaware limited partnership
Brandywine Office Investors LP, a Delaware limited partnership
Brandywine Operating Partnership, L.P., a Delaware limited partnership
Brandywine Opportunity Fund, LP, a Delaware limited partnership
Brandywine P.M., L.P., a Pennsylvania limited partnership
Brandywine Properties Management LP, a Texas limited partnership
Brandywine TB Florig, L.P., a Pennsylvania limited partnership
Brandywine TB I, L.P., a Pennsylvania limited partnership
Brandywine TB II, L.P., a Pennsylvania limited partnership
Brandywine TB VI, L.P., a Pennsylvania limited partnership
Brandywine TB VII, L.P., a Pennsylvania limited partnership
Brandywine Wood Oak LP, a Delaware limited partnership
Brandywine 145 King of Prussia, LP, a Pennsylvania limited partnership
Brandywine 1177 Beltline Associates, L.P., a Texas limited partnership
Brandywine 3001-3003 JFK, LP, a Delaware limited partnership
Brandywine 3001-3003 JFK II, LP, a Delaware limited partnership
Brandywine 3025 JFK, LP, a Delaware limited partnership
Brandywine 3025 Market, LP, a Pennsylvania limited partnership
Brandywine 3151 Market, LP, a Delaware limited partnership
BT Plymouth LP, a Delaware limited partnership
C/N Leedom Limited Partnership II, a Pennsylvania limited partnership
Commerce Square Partners – Philadelphia Plaza, L.P., a Delaware limited partnership
Concord Airport Plaza Associates, LP, a California limited partnership
Cooperative Way Metro Owner LLC, a Delaware limited liability company
Eight/Oliver Brandywine Partner, L.P., a Pennsylvania limited partnership
e-Tenants.com Holding, L.P., a Pennsylvania limited partnership
Five/Oliver Brandywine Partner, L.P., a Pennsylvania limited partnership
Four Tower Bridge Associates, a Pennsylvania limited partnership
G&I VII Barton Creek LP, a Delaware limited partnership
G&I VII Barton Skyway LP, a Delaware limited partnership
G&I VII Cielo, LP a Delaware limited partnership
G&I VII Encino Trace I LP, a Delaware limited partnership
G&I VII Encino Trace II LP, a Delaware limited partnership
G&I VII Four Points LP, a Delaware limited partnership
G&I VII Lantana, LP a Delaware limited partnership
G&I VII River Place LP, a Delaware limited partnership
Iron Run Limited Partnership V, a Pennsylvania Limited Partnership
Newtech IV Limited Partnership, a Pennsylvania limited partnership
New Two Logan, LP, a Pennsylvania limited partnership
OLS Office Partners, L.P., a Delaware limited partnership
One Rockledge Associates Limited Partnership, a Massachusetts limited partnership
Philadelphia Plaza – Phase II LP, a Pennsylvania limited partnership
Radnor Center Associates, a Pennsylvania limited partnership
Radnor Properties Associates-II, L.P., a Pennsylvania limited partnership
Radnor Properties-SDC, L.P., a Delaware limited partnership
Radnor Properties-200 RC Holdings, L.P., a Delaware limited partnership
Radnor Properties-200 RC, L.P., a Delaware limited partnership
Radnor Properties-201 KOP, L.P., a Delaware limited partnership
Radnor Properties-555 LA, L.P., a Delaware limited partnership
TB-BDN Plymouth Apartments, LP, a Delaware limited partnership
TB-BDN Plymouth Apartments Holdings, LP, a Delaware limited partnership
Two Logan Holdings LP, a Pennsylvania limited partnership
Two Logan Square Associates, a Pennsylvania limited partnership
Tower Bridge Inn Associates, a Pennsylvania limited partnership
Witmer Operating Partnership I, L.P., a Delaware limited partnership
405 Colorado Holdings LP, a Delaware limited partnership
618 Market Street LP, a Delaware limited partnership
1919 Market Street LP, a Delaware limited partnership
2100 Market Street LP, a Delaware limited partnership
2928 Walton Road LP, a Pennsylvania limited partnership
3000 Market LP, a Delaware limited partnership
3020 Market Holding LP, a Delaware limited partnership
3020 Market Operating LP, a Delaware limited partnership
Interstate Center Associates, a Virginia general partnership
Plymouth TFC, General Partnership, a Pennsylvania general partnership
Campus Crest at Philadelphia, GP, a Delaware general partnership
1919 Market Street Ventures, a Delaware general partnership
BDN Management Inc., a Delaware corporation
Brandywine Holdings, I, Inc., a Pennsylvania corporation
Brandywine Properties I Limited Inc., a Delaware corporation
Brandywine Realty Services Corporation, a Pennsylvania corporation
Brandywine Resources I Inc., a Delaware corporation
Southpoint Land Holdings, Inc., a Pennsylvania corporation
Valleybrooke Land Holdings, Inc., a Pennsylvania corporation
B Chestnut GP LLC, a Delaware limited liability company
BCC 1010 Wayne Avenue LLC, a Delaware limited liability company
BCC 1100 Wayne Avenue LLC, a Delaware limited liability company
BCC 8484 Georgia Avenue LLC, a Delaware limited liability company
BDN 250 King of Prussia II GP, LLC, a Delaware limited liability company
BDN 250 King of Prussia Holding Company, LLC, a Delaware limited liability company
BDN 3025 JFK Development, LLC, a Delaware limited liability company
BDN Austin Properties LLC, a Delaware limited liability company
BDN Austin Properties II LLC, a Delaware limited liability company
BDN Brokerage LLC, a Pennsylvania limited liability company
BDN Cira Labs LLC, a Delaware limited liability company
BDN Four Points GP LLC, a Delaware limited liability company
BDN Four Points Land GP LLC, a Delaware limited liability company
BDN Four Points Preserve GP LLC, a Delaware limited liability company
BDN GC Services LLC, a Delaware limited liability company
BDN GP Real Estate Fund I LLC, a Delaware limited liability company
BDN Investment Holdings, LLC, a Delaware limited liability company
BDN Lending, LLC, a Pennsylvania limited liability company
BDN Management Holdings, LLC, a Delaware limited liability company
BDN Millennium GP, LLC, a Delaware limited liability company
BDN Millennium Holding Company, LLC, a Delaware limited liability company
BDN NoMA LLC, a Delaware limited liability company
BDN Old Eagle School I GP, LLC, a Delaware limited liability company
BDN Old Eagle School II GP, LLC, a Delaware limited liability company
BDN Old Eagle School III GP, LLC, a Delaware limited liability company
BDN Old Eagle School IV GP, LLC, a Delaware limited liability company
BDN Old Eagle School V GP, LLC, a Delaware limited liability company
BDN Old Eagle School VI GP, LLC, a Delaware limited liability company
BDN Old Eagle School VII GP, LLC, a Delaware limited liability company
BDN Properties I LLC, a Delaware limited liability company
BDN Quarry Lake II GP, LLC, a Delaware limited liability company
BDN Radnor Holding Company, LLC, a Delaware limited liability company
BDN Radnor Hospitality Holding Company, LLC, a Delaware limited liability company
BDN Radnor Hospitality Property II GP, LLC, a Delaware limited liability company
BDN Radnor Property II GP, LLC, a Delaware limited liability company
BDN Venture LLC, a Delaware limited liability company
BDN-West Elm Holding LLC, a Pennsylvania limited liability company
BDNSY Mezz Sub, LLC, a Delaware limited liability company
Bellet GP, LLC, a Delaware limited liability company
Bellet, LLC, a Delaware limited liability company
BOI Pacific Ridge LLC, a Delaware limited liability company
Brandywine Austin LLC, a Delaware limited liability company
Brandywine Austin I LLC, a Delaware limited liability company
Brandywine Austin Properties LLC, a Delaware limited liability company
Brandywine Bergstrom LLC, a Delaware limited liability company
Brandywine Boulders, LLC, a Delaware limited liability company
Brandywine Brokerage Services, LLC, A New Jersey limited liability company
Brandywine Byberry LLC, a Delaware limited liability company
Brandywine Calverton LLC, a Delaware limited liability company
Brandywine Charlottesville LLC, a Virginia limited liability company
Brandywine Cira Brokerage LLC, d Delaware limited liability company
Brandywine Cira Chestnut LLC, a Delaware limited liability company
Brandywine Cira Garage LLC, a Delaware limited liability company
Brandywine Cira Garage Holding LLC, a Delaware limited liability company
Brandywine Cira Garage Holding MM LLC, a Delaware limited liability company
Brandywine Cira, LLC, a Pennsylvania limited liability company
Brandywine Cira PO Developer LLC, a Delaware limited liability company
Brandywine Cira South GP LLC, a Delaware limited liability company
Brandywine Cira Walnut LLC, a Delaware limited liability company
Brandywine Commerce I GP LLC, a Delaware limited liability company
Brandywine Commerce II GP LLC, a Delaware limited liability company
Brandywine Continental LLC, a Delaware limited liability company
Brandywine Dabney, L.L.C., a Delaware limited liability company
Brandywine F.C., L.L.C., a Pennsylvania limited liability company
Brandywine Garza, LLC., a Delaware limited liability company
Brandywine Garza Office I GP, LLC, a Delaware limited liability company
Brandywine Garza Office II GP, LLC, a Delaware limited liability company
Brandywine Garza Office III GP, LLC, a Delaware limited liability company
Brandywine Gateway LLC, a NJ limited liability company
Brandywine Grande B, L.L.C., a Delaware limited liability company
Brandywine Grande C LLC, a Delaware limited liability company
Brandywine Interstate 50, L.L.C., a Delaware limited liability company
Brandywine Lake Merritt LLC, a Delaware limited liability company
Brandywine - Main Street, LLC, a Delaware limited liability company
Brandywine Metroplex LLC., a Pennsylvania limited liability company
Brandywine Midatlantic, LLC, a Delaware limited liability company
Brandywine One Logan LLC, a Pennsylvania limited liability company
Brandywine One Rodney Square, L.L.C., a Delaware limited liability company
Brandywine P.M., L.L.C., a Pennsylvania limited liability company
Brandywine Piazza, L.L.C., a New Jersey limited liability company
Brandywine Plaza Ridge I, LLC, a Delaware limited liability company
Brandywine Plaza 1000, L.L.C., a New Jersey limited liability company
Brandywine Promenade, L.L.C., a New Jersey limited liability company
Brandywine Radnor 200 Holdings LLC, a Delaware limited liability company
Brandywine Radnor Center LLC, a Pennsylvania limited liability company
Brandywine Research LLC, a Delaware limited liability company
Brandywine TB Florig, LLC, a Pennsylvania limited liability company
Brandywine TB I, L.L.C., a Pennsylvania limited liability company
Brandywine TB I, GP L.L.C., a Pennsylvania limited liability company
Brandywine TB VI, L.L.C., a Pennsylvania limited liability company
Brandywine TB VII, L.L.C., a Pennsylvania limited liability company
Brandywine Tysons LLC, a Delaware limited liability company
Brandywine Wisconsin Avenue Financing LLC, a Delaware limited liability company
Brandywine Witmer, L.L.C., a Pennsylvania limited liability company
Brandywine 55 US Avenue LLC, a New Jersey limited liability company
Brandywine 145 King of Prussia, LLC, a Pennsylvania limited liability company
Brandywine 300 Delaware, LLC, a Delaware limited liability company
Brandywine 1177 Beltline Associates GP, LLC, a Delaware limited liability company
Brandywine 2201 Co-Way LLC a Delaware limited liability company
Brandywine 2201 Co-Way II LLC, a Delaware limited liability company
Brandywine 3001 Market, LLC, a Delaware limited liability company
Brandywine 3001-3003 HoldCo, LLC, a Delaware limited liability company
Brandywine 3001-3003 JFK II, LLC, a Delaware limited liability company
Brandywine 3025 JFK II, LLC, a Delaware limited liability company
Brandywine 3025 JFK II REIT, LLC, a Delaware limited liability company
Brandywine 3025 JFK Holdings II, LLC, a Delaware limited liability company
Brandywine 3025 Market Holdings, LLC, a Delaware limited liability company
Brandywine 3151 Market GP, LLC, a Delaware limited liability company
BRE/Logan I, L.L.C., a Delaware limited liability company
BRE/Logan II, L.L.C., a Delaware limited liability company
BRE/Logan III, L.L.C., a Delaware limited liability company
BT Plymouth GP, LLC, a Delaware limited liability company
Chestnut Venture LLC, a Delaware limited liability company
Christiana Center Operating Company I LLC, a Delaware limited liability company
Christiana Center Operating Company II LLC, a Delaware limited liability company
Christiana Center Operating Company III LLC, a Delaware limited liability company
e-Tenants LLC, a Delaware limited liability company
G&I VI 7150 Windsor MZ LLC, a Delaware limited liability company
G&I VI 7310 Tilghman MZ LLC, a Delaware limited liability company
G&I VI 7310 Tilghman FE LLC, a Delaware limited liability company
G&I VI 7248 Tilghman GP LLC, a Delaware limited liability company
G&I VI 7248 Tilghman LP LLC, a Delaware limited liability company
G&I VI 6575 Snowdrift GP LLC, a Delaware limited liability company
G&I VI 6575 Snowdrift LP LLC, a Delaware limited liability company
G&I VI 7350 Tilghman MZ LLC, a Delaware limited liability company
G&I VI 655/755 Business Center MZ LLC, a Delaware limited liability company
G&I VI 655/755 Business Center FE LLC, a Delaware limited liability company
G&I VI 1155 Business Center MZ LLC, a Delaware limited liability company
G&I VI 1155 Business Center FE LLC, a Delaware limited liability company
G&I VI 700/800 Business Center MZ LLC, a Delaware limited liability company
G&I VI 700/800 Business Center FE LLC, a Delaware limited liability company
G&I VI 630 Dresher MZ LLC, a Delaware limited liability company
G&I VI 630 Dresher FE LLC, a Delaware limited liability company
G&I VI 650 Dresher MZ LLC, a Delaware limited liability company
G&I VI 650 Dresher FE LLC, a Delaware limited liability company
G&I VI 300 Welsh 1/2 MZ LLC, a Delaware limited liability company
G&I VI 300 Welsh 1/2 FE LLC, a Delaware limited liability company
G&I VI One Greenwood MZ LLC, a Delaware limited liability company
G&I VI One Greenwood FE LLC, a Delaware limited liability company
G&I VI Two Greenwood MZ LLC, a Delaware limited liability company
G&I VI Two Greenwood FE LLC, a Delaware limited liability company
G&I VI Three Greenwood MZ LLC, a Delaware limited liability company
G&I VI Three Greenwood FE LLC, a Delaware limited liability company
G&I VI 500 Office Center MZ LLC, a Delaware limited liability company
G&I VI 500 Office Center FE LLC, a Delaware limited liability company
G&I VI 501 Office Center MZ LLC, a Delaware limited liability company
G&I VI 501 Office Center FE LLC, a Delaware limited liability company
G&I VI 321/323 Norristown MZ LLC, a Delaware limited liability company
G&I VI 321/323 Norristown FE LLC, a Delaware limited liability company
G&I VI 220 Commerce MZ LLC, a Delaware limited liability company
G&I VI 220 Commerce FE LLC, a Delaware limited liability company
G&I VI 520 Virginia MZ LLC, a Delaware limited liability company
G&I VI 520 Virginia FE LLC, a Delaware limited liability company
G&I VI Interchange Office LLC, a Delaware limited liability company
G&I VII Austin Office LLC, a Delaware limited liability company
G&I VII Barton Creek GP LLC, a Delaware limited liability company
G&I VII Barton Skyway GP LLC, a Delaware limited liability company
G&I VII Cielo GP LLC, a Delaware limited liability company
G&I VII Encino Trace I GP LLC, a Delaware limited liability company
G&I VII Encino Trace II GP LLC, a Delaware limited liability company
G&I VII Four Points GP LLC, a Delaware limited liability company
G&I VII Lantana GP LLC, a Delaware limited liability company
G&I VII River Place GP LLC, a Delaware limited liability company
Gateway EH, LLC, a New Jersey limited liability company
Gateway EH 4/5, LLC, a New Jersey limited liability company
HSRE-Campus Crest IX, LLC, a Delaware limited liability company
MAP Ground Lease Venture LLC, a Delaware limited liability company
MAP Mezzanine Borrower LLC, a Delaware limited liability company
MAP Ground Lease Owner LLC, a Delaware limited liability company
Mid-Atlantic Property Holdings LLC, a Delaware limited liability company
New Two Logan GP, LLC, a Pennsylvania limited liability company
OCS/TCS Services, LLC, a Delaware limited liability company
OCS TRS, LLC, a Delaware limited liability company
One Commerce Square REIT LLC
PA-MD NNN Berwyn Park, LLC, a Delaware limited liability company
PA-MD NNN Office JV, LLC, a Delaware limited liability company
PA-MD NNN Office Mezz, LLC, a Delaware limited liability company
PA-MD NNN Office Research, LLC, a Delaware limited liability company
PA-MD NNN Office Southpoint, LLC, a Delaware limited liability company
Radnor GP, L.L.C., a Delaware limited liability company
Radnor GP-SDC, L.L.C., a Delaware limited liability company
Radnor GP-200 RC, L.L.C., a Delaware limited liability company
Radnor GP-201 KOP, L.L.C., a Delaware limited liability company
Radnor GP-555 LA, L.L.C., a Delaware limited liability company
PJP Building Two, L.C., a Virginia limited liability company
PJP Building Six, L.C., a Virginia limited liability company
PJP Building Seven, L.C., a Virginia limited liability company
TB-BDN Plymouth Apartments Holdings GP, LLC, a Delaware limited liability company
TCS TRS, LLC, a Delaware limited liability company
Two Commerce Square REIT LLC, a Delaware limited liability company
Walnut Street Hospitality LLC, a Delaware limited liability company
3 Logan LLC, a Delaware limited liability company
25 M Street Holdings LLC, a Delaware limited liability company
405 Colorado Holdings GP LLC a Delaware limited liability company
618 Market Holdco General Partner LLC, a Delaware limited liability company
618 Market Mezz Holdco LLC, a Delaware limited liability company
720 Blair Mill Road LLC, a Delaware limited liability company
1919 Market Holdco General LLC, a Delaware limited liability company
2100 Market Holdco General Partner LLC, a Delaware limited liability company
2100 Market Mezz Holdco LLC, a Delaware limited liability company
2251 Corporate Park Metro Owner LLC, a Delaware limited liability company
2291 Wood Oak Metro Owner LLC, a Delaware limited liability company
2411 Dulles Corner Metro Owner LLC, a Delaware limited liability company
2355 Dulles Corner Metro Owner LLC, a Delaware limited liability company
2928 Walton LLC, a Delaware limited liability company
3000 Market Mezz LLC, a Delaware limited liability company
3000 Market Mezz Holdco LLC, a Delaware limited liability company
3000 Market Holdco General Partner, LLC, a Delaware limited liability company
3020 Market Holding GP LLC, a Delaware limited liability company
3025 JFK TRS LLC, a Delaware limited liability company
3130 Fairview LLC, a Delaware limited liability company
3141 Fairview LLC, a Delaware limited liability company
4040 LLC, a Virginia limited liability company
4040 Wilson LLC, a Delaware limited liability company
51 N 50 Patterson Holdings, L.L.C., a Delaware limited liability company
51 N 50 Patterson Corporate Member, L.L.C., a Delaware limited liability company
13880 Dulles Corner Metro Owner LLC, a Delaware limited liability company
13825 Sunrise Valley Metro Owner LLC, a Delaware limited liability company
1000 Chesterbrook Boulevard Partnership, a Pennsylvania general partnership
Atlantic American Properties Trust, a Maryland real estate investment trust
BOI Herndon Trust, a Maryland real estate investment trust
BOI President’s Plaza Trust, a Maryland real estate investment trust
BOI Rancho Bernardo Bluffs Trust, a Maryland real estate investment trust
Brandywine Capital Trust I, a Delaware statutory trust
Brandywine Capital Trust II, a Delaware statutory trust
Broadmoor Austin Associates, a Texas joint venture
Coppel Associates, a Texas joint venture
Seven Tower Bridge Associates, a Pennsylvania limited partnership
Brandywine – AI Venture LLC, a Delaware limited liability company
G&I VI Interchange Office LLC, a Delaware limited liability company
G&I VII Austin Office LLC, a Delaware limited liability company
Herndon Innovation Center Metro Portfolio Venture LLC, a Delaware limited liability company
Iron Run Venture II LLC, a Delaware limited liability company
One Rockledge Associates Limited Partnership, a Massachusetts limited partnership
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (Nos. 333-237870, 333-158590, 333-52952) and on Form S-8 (Nos. 333-14243, 333-28427, 333-52957, 333-123446, 333-125311, 333-131171, 333-141906, 333-142752, 333-142754, 333-167266, 333-218117) of Brandywine Realty Trust of our report dated February 24, 2021 relating to the financial statements and the financial statement schedules and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 24, 2021
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-3 (No. 333-237870-01) of Brandywine Operating Partnership, L.P. of our report dated February 24, 2021 relating to the financial statements and the financial statement schedules and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 24, 2021
Exhibit 31.1
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED
I, Gerard H. Sweeney, certify that:
1.I have reviewed this annual report on Form 10-K of Brandywine Realty Trust;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15(d)-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: February 24, 2021 | /s/ Gerard H. Sweeney | |||||||
| Gerard H. Sweeney President and Chief Executive Officer | ||||||||
Exhibit 31.2
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED
I, Thomas E. Wirth, certify that:
1.I have reviewed this annual report on Form 10-K of Brandywine Realty Trust;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15(d)-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: February 24, 2021 | /s/ Thomas E. Wirth | |||||||
| Thomas E. Wirth Executive Vice President and Chief Financial Officer | ||||||||
Exhibit 31.3
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED
I, Gerard H. Sweeney, certify that:
1.I have reviewed this annual report on Form 10-K of Brandywine Operating Partnership, L.P.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15(d)-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: February 24, 2021 | /s/ Gerard H. Sweeney | |||||||
| Gerard H. Sweeney | ||||||||
| President and Chief Executive Officer | ||||||||
Exhibit 31.4
CERTIFICATION PURSUANT TO
RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED
I, Thomas E. Wirth, certify that:
1.I have reviewed this annual report on Form 10-K of Brandywine Operating Partnership, L.P.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15(d)-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a.Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a.All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b.Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: February 24, 2021 | /s/ Thomas E. Wirth | |||||||
| Thomas E. Wirth | ||||||||
| Executive Vice President and Chief Financial Officer | ||||||||
Exhibit 32.1
RULE 13(a)-14(b) CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002*
In connection with the Annual Report of Brandywine Realty Trust (the “Company”) on Form 10-K for the year ended December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Gerard H. Sweeney, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1.The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and
2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Gerard H. Sweeney | |||||
| Gerard H. Sweeney President and Chief Executive Officer | |||||
| Date: February 24, 2021 | |||||
* A signed original of this written statement required by Section 906 has been provided to Brandywine Realty Trust and will be retained by Brandywine Realty Trust and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.2
RULE 13(a)-14(b) CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002*
In connection with the Annual Report of Brandywine Realty Trust (the “Company”) on Form 10-K for the year ended December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Thomas E. Wirth, Executive Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1.The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and
2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Thomas E. Wirth | |||||
| Thomas E. Wirth Executive Vice President and Chief Financial Officer | |||||
| Date: February 24, 2021 | |||||
* A signed original of this written statement required by Section 906 has been provided to Brandywine Realty Trust and will be retained by Brandywine Realty Trust and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.3
RULE 13(a)-14(b) CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002*
In connection with the Annual Report of Brandywine Operating Partnership, L.P. (the “Partnership”) on Form 10-K for the quarter ended December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Gerard H. Sweeney, President and Chief Executive Officer of Brandywine Realty Trust, the Partnership's sole general partner, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1.The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and
2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Gerard H. Sweeney | |||||
| Gerard H. Sweeney | |||||
| President and Chief Executive Officer | |||||
| Date: February 24, 2021 | |||||
* A signed original of this written statement required by Section 906 has been provided to Brandywine Realty Trust and will be retained by Brandywine Realty Trust and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.4
RULE 13(a)-14(b) CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002*
In connection with the Annual Report of Brandywine Operating Partnership, L.P. (the “Partnership”) on Form 10-K for the year ended December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Thomas E. Wirth, Executive Vice President and Chief Financial Officer of Brandywine Realty Trust, the Partnership's sole general partner, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1.The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and
2.The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/ Thomas E. Wirth | |||||
| Thomas E. Wirth | |||||
| Executive Vice President and Chief Financial Officer | |||||
| Date: February 24, 2021 | |||||
* A signed original of this written statement required by Section 906 has been provided to Brandywine Realty Trust and will be retained by Brandywine Realty Trust and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 99.1
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
The following discussion describes the material U.S. federal income tax considerations relating to the purchase, ownership and disposition of Brandywine Realty Trust’s (“Brandywine”) common shares, preferred shares and debt securities and debt securities of the Operating Partnership, and the qualification and taxation of Brandywine as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”). This discussion reflects changes to the U.S. federal income tax laws made by legislation commonly referred to as the Tax Cuts and Jobs Act (the “TCJA”), which was signed into law on December 22, 2017.
Because this is a summary that is intended to address only material U.S. federal income tax considerations relating to the ownership and disposition of Brandywine’s common shares, preferred shares or debt securities and debt securities of the Operating Partnership that will apply to all holders, this summary may not contain all the information that may be important to you. As you review this discussion, you should keep in mind that:
•the tax consequences to you may vary depending on your particular tax situation;
•special rules that are not discussed below may apply to you if, for example, you are a tax-exempt organization, a broker-dealer, a non-U.S. person, a trust, an estate, a regulated investment company, a REIT, a financial institution, an insurance company, a holder of debt securities or shares through a partnership or other pass-through entity, a person that holds debt securities or shares as part of a straddle, conversion or other integrated transaction, a person liable for the alternative minimum tax, a U.S. Shareholder or U.S. Holder (each as defined below) whose “functional currency” is not the U.S. dollar, an entity treated as a U.S. corporation by virtue of the inversion rules, or otherwise subject to special tax treatment under the Code;
•this summary does not address state, local or non-U.S. tax considerations;
•this summary deals only with our shareholders and debt holders that hold common shares, preferred shares or debt securities as “capital assets” within the meaning of Section 1221 of the Code;
•tax rules are subject to change, potentially with retroactive effect; and
•this discussion is not intended to be, and should not be construed as, tax advice.
You are urged both to review the following discussion and to consult with your own tax advisor to determine the effect of ownership and disposition of our common shares, preferred shares or debt securities and debt securities of the Operating Partnership on your individual tax situation, including any state, local or non-U.S. tax consequences.
The information in this summary is based on the Code, current, temporary and proposed Treasury regulations, the legislative history of the Code, current administrative interpretations and practices of the Internal Revenue Service (the “IRS”), including its practices and policies as endorsed in private letter rulings, which are not binding on the IRS, and existing court decisions. Future legislation, regulations, administrative interpretations and court decisions could change current law or adversely affect existing interpretations of current law. Any change could apply retroactively. We have not obtained any rulings from the IRS concerning the status of Brandywine as a REIT or of the Operating Partnership as a partnership. Therefore, it is possible that the IRS could challenge the statements in this summary, which do not bind the IRS or the courts, and that a court could agree with the IRS.
Taxation of the Company
Qualification of Brandywine as a REIT
Brandywine first elected to be taxed as a REIT for the taxable year ended December 31, 1986. A REIT generally is not subject to federal income tax on the income that it distributes to its shareholders if it meets the applicable REIT distribution requirements and other requirements for qualification.
We believe that we are organized and have operated in such a manner so as to qualify as a REIT, but there can be no assurance that we have qualified or will remain qualified as a REIT.
Qualification and taxation as a REIT depends on our ability to meet, on a continuing basis, through actual operating results, distribution levels, and diversity of stock ownership, various qualification requirements imposed upon REITs by the Code. Our ability to qualify as a REIT also requires that we satisfy certain asset tests, some of which depend upon the fair market values of assets directly or indirectly owned by us. Such values may not be susceptible to a precise determination. While we intend to continue to operate in a manner that will allow us to qualify as a REIT, no assurance can be given that the actual results of our operations for any taxable year will satisfy such requirements for qualification and taxation as a REIT.
Taxation of Brandywine as a REIT
If we qualify for taxation as a REIT, we generally will not be subject to federal corporate income taxes on that portion of our ordinary income or capital gain that we distribute currently to our shareholders, because the REIT provisions of the Code generally allow a REIT a deduction for distributions paid to its shareholders. This deduction substantially eliminates the “double taxation” on earnings (taxation at both the corporate level and shareholder level) that generally results from investment in a corporation. However, even if we qualify for taxation as a REIT, we will be subject to federal income tax as follows:
•We will be taxed at regular corporate rates on any undistributed REIT taxable income, including undistributed net capital gains;
•Under certain circumstances, for tax years beginning before January 1, 2018, we may be subject to the “alternative minimum tax” on our items of tax preference, if any;
◦If we have net income from prohibited transactions (which are, in general, certain sales or other dispositions of property, other than foreclosure property, held primarily for sale to customers in the ordinary course of business) such income will be subject to a 100% tax (See “-Sale of Partnership Property)”;
◦If we elect to treat property that we acquire in connection with a foreclosure of a mortgage loan or leasehold as “foreclosure property,” we may thereby avoid the 100% tax on gain from a resale of that property (if the sale would otherwise constitute a prohibited transaction), but the income from the sale or operation of the property (and any other non-qualifying income from foreclosure property) may be subject to corporate income tax at the highest applicable rate (currently 21%);
•If we should fail to satisfy the 75% gross income test or the 95% gross income test (each as discussed below), and nonetheless have maintained our qualification as a REIT because certain other requirements have been met, we will be subject to a 100% tax on the net income attributable to the greater of the amount by which we fail the 75% or 95% test, multiplied by a fraction intended to reflect our profitability;
•If we fail to satisfy any of the REIT asset tests, as discussed below, by more than a de minimis amount, but our failure is due to reasonable cause and not due to willful negligence and we nonetheless maintain our REIT qualification because of specified cure provisions, we will be required to pay a tax equal to the greater of $50,000 or the highest applicable rate for corporate taxpayers (currently 21%) of the net income generated by the non-qualifying assets during the period in which we failed to satisfy the asset tests;
•If we fail to satisfy any provision of the Code that would result in our failure to qualify as a REIT (other than a gross income or asset test requirement) and that violation is due to reasonable cause and not due to willful negligence, we may retain our REIT qualification, but we will be required to pay a penalty of $50,000 for each such failure;
•We may be required to pay monetary penalties to the IRS in certain circumstances, including if we fail to meet record-keeping requirements intended to monitor our compliance with rules relating to the composition of our shareholders, as described below in “-Requirements for Qualification as a REIT”;
•If we should fail to distribute during each calendar year at least the sum of (a) 85% of our REIT ordinary income for such year, (b) 95% of our REIT capital gain net income for such year and (c) any undistributed taxable income from prior years, we would be subject to a 4% excise tax on the excess of such required distribution over the sum of (i) the amounts actually distributed plus (ii) retained amounts on which corporate level tax is paid by us;
•We may elect to retain and pay income tax on our net long-term capital gain, and in that case, a shareholder would include its proportionate share of our undistributed long-term capital gain in its income and would be allowed a credit for its proportionate share of the tax we paid;
•A 100% excise tax may be imposed on some items of income and expense that are directly or constructively paid between us, our tenants and/or our taxable REIT subsidiaries if and to the extent that the Internal Revenue Service successfully adjusts the reported amounts of these items;
•If we acquire appreciated assets from a C corporation (a corporation generally subject to corporate level tax) in a transaction in which the adjusted tax basis of the assets in our hands is determined by reference to the adjusted tax basis of the assets in the hands of the C corporation, we may be subject to tax on such appreciation at the highest corporate income tax rate then applicable if we subsequently recognize gain on a disposition of such assets during the five-year period following their acquisition from the C corporation, unless the C corporation elects to treat the assets as if they were sold for their fair market value at the time of our acquisition; and
•Income earned by any of our taxable REIT subsidiaries will be subject to tax at regular corporate rates.
Requirements for Qualification as a REIT
We elected to be taxable as a REIT for U.S. federal income tax purposes for our taxable year ended December 31, 1986. In order to have so qualified, we must have met and continue to meet the requirements discussed below, relating to our organization, sources of income, nature of assets and distributions of income to shareholders.
The Code defines a REIT as a corporation, trust or association:
1.that is managed by one or more trustees or directors;
2.the beneficial ownership of which is evidenced by transferable shares or by transferable certificates of beneficial interest;
3.that would be taxable as a domestic corporation but for the special Code provisions applicable to REITs;
4.that is neither a financial institution nor an insurance company subject to certain provisions of the Code;
5.the beneficial ownership of which is held by 100 or more persons;
6.in which, during the last half of each taxable year, not more than 50% in value of the outstanding shares is owned, directly or indirectly, by five or fewer individuals (as defined in the Code to include specified entities), after applying certain attribution rules;
7.that makes an election to be taxable as a REIT, or has made this election for a previous taxable year which has not been revoked or terminated, and satisfies all relevant filing and other administrative requirements established by the IRS that must be met to elect and maintain REIT status;
8.that uses a calendar year for federal income tax purposes and complies with the record keeping requirements of the Code and the Treasury regulations; and
9.that meets other applicable tests, described below, regarding the nature of its income and assets and the amount of its distributions.
Conditions (1) through (4) must be satisfied during the entire taxable year, and condition (5) must be satisfied during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months.
We have previously issued common shares in sufficient proportions to allow us to satisfy requirements (5) and (6) (the “100 Shareholder” and “five-or-fewer” requirements). In addition, our Declaration of Trust provides restrictions regarding the transfer of our shares that are intended to assist us in continuing to satisfy the requirements described in conditions (5) and (6) above. However, these restrictions may not ensure that we will, in all cases, be able to satisfy the requirements described in conditions (5) and (6) above. In addition, we have not obtained a ruling from the Internal Revenue Service as to whether the provisions of our Declaration of Trust concerning restrictions on transfer and conversion of common shares to “Excess Shares” will allow us to satisfy conditions (5) and (6). If we fail to satisfy such share ownership requirements, our status as a REIT will terminate. However, if the failure to meet the share ownership requirements is due to reasonable cause and not due to willful neglect, we may avoid termination of our REIT status by paying a penalty of $50,000.
To monitor compliance with the share ownership requirements, we are required to maintain records regarding the actual ownership of our shares. To do so, we must demand written statements each year from the record holders of certain percentages of our shares in which the record holders are to disclose the actual owners of the shares (the persons required to include in gross income the dividends paid by us). A list of those persons failing or refusing to comply with this demand must be maintained as part of our records. Failure by us to comply with these record-keeping requirements could subject us to monetary penalties. If we satisfy these requirements and have no reason to know that condition (6) is not satisfied, we will be deemed to have satisfied such condition. A shareholder that fails or refuses to comply with the demand is required by Treasury regulations to submit a statement with its tax return disclosing the actual ownership of the shares and other information.
Qualified REIT Subsidiaries
The Code provides that a corporation that is a “qualified REIT subsidiary” shall not be treated as a separate corporation, and all assets, liabilities and items of income, deduction and credit of a “qualified REIT subsidiary” shall be treated as assets, liabilities and items of income, deduction and credit of the REIT. A “qualified REIT subsidiary” is a corporation, all of the capital stock of which is owned by the REIT, that has not elected to be a “taxable REIT subsidiary” (discussed below). In applying the requirements described herein, all of our “qualified REIT subsidiaries” will be ignored, and all assets, liabilities and items of income, deduction and credit of such subsidiaries will be treated as our assets, liabilities and items of income, deduction and credit. These subsidiaries, therefore, will not be subject to federal corporate income taxation, although they may be subject to state and local taxation.
In the event that a qualified REIT subsidiary or another entity that is a disregarded subsidiary for U.S. federal income tax purposes ceases to be wholly owned by us (for example, if any equity interest in the subsidiary is acquired by a person other than us or another disregarded subsidiary of us), the subsidiary’s separate existence would no longer be disregarded for U.S. federal income tax purposes. Instead, it would have multiple owners and would be treated as either a partnership or a taxable corporation. Such an event could, depending on the circumstances, adversely affect our ability to satisfy the various asset and gross income tests applicable to REITs, including the requirement that REITs generally may not own, directly or indirectly, more than 10% of the value or voting power of the outstanding securities of another corporation. See “-Asset Tests” and “-Income Tests.”
Taxable REIT Subsidiaries
A REIT may generally jointly elect with a subsidiary corporation, whether or not wholly owned, to treat the subsidiary as a “taxable REIT subsidiary.” In addition, if a taxable REIT subsidiary owns, directly or indirectly, securities representing 35% or more of the vote or value of a subsidiary corporation, that subsidiary will also be treated as a taxable REIT subsidiary. A taxable REIT subsidiary is a corporation subject to U.S. federal income tax, and state and local income tax where applicable, as a regular “C” corporation. We generally may not own more than 10%, as measured by voting power or value, of the securities of a corporation that is not a qualified REIT subsidiary unless we and such corporation elect to treat such corporation as a taxable REIT subsidiary. Overall, no more than 20% of the value of a REIT’s assets (25% for taxable years beginning before January 1, 2018) may consist of stock or securities of one or more taxable REIT subsidiaries.
Income earned by a taxable REIT subsidiary is not attributable to us. Rather, the stock issued by a taxable REIT subsidiary to us is an asset in our hands, and we treat dividends paid to us from such taxable REIT subsidiary, if any, as income. This income can affect our income and asset tests calculations, as described below. As a result, income that might not be qualifying income for purposes of the income tests applicable to REITs could be earned by a taxable REIT subsidiary without affecting our status as a REIT. For example, a taxable REIT subsidiary of ours can perform some impermissible tenant services without causing us to receive impermissible tenant services income under the REIT income tests.
However, several provisions regarding the arrangements between a REIT and its taxable REIT subsidiaries ensure that a taxable REIT subsidiary will be subject to an appropriate level of U.S. federal income taxation. Further, the rules impose a 100% excise tax on certain transactions between a taxable REIT subsidiary and its parent REIT or the REIT’s tenants that are not conducted on an arm’s-length basis. The 100% tax also will apply to “redetermined services income,” meanings non-arm’s-length income of a taxable REIT subsidiary attributable to services provided to, or on behalf of, its parent REIT (other than services provided to the REIT’s tenants, which are potentially taxed as “redetermined rents”). A taxable REIT subsidiary may also engage in other activities that, if conducted by us other than through a taxable REIT subsidiary, could result in the receipt of non-qualified income or the ownership of non-qualified assets.
For taxable years beginning after December 31, 2017, taxpayers are subject to a limitation on their ability to deduct net business interest generally equal to 30% of adjusted taxable income, subject to certain exceptions. This provision may limit the ability of our taxable REIT subsidiaries to deduct interest, which could increase their taxable income.
Ownership of Partnership Interests by a REIT
A REIT that is a partner in a partnership is deemed to own its proportionate share of the assets of the partnership and is deemed to receive the income of the partnership attributable to such share. In addition, the character of the assets and gross income of the partnership retains the same character in the hands of the REIT (except that, for purposes of the 10% of value asset test described below, our proportionate share of the partnership’s assets is based on our proportionate interest in the equity and certain debt securities issued by the partnership, as described in the Code). Accordingly, our proportionate share of the assets, liabilities and items of income of the Operating Partnership are treated as assets, liabilities and items of income of ours for purposes of applying the requirements described herein. Brandywine has control over the Operating Partnership and most of the partnership and limited liability company subsidiaries of the Operating Partnership and intends to operate them in a manner that is consistent with the requirements for qualification of Brandywine as a REIT.
Income Tests
In order to qualify as a REIT, Brandywine must generally satisfy two gross income requirements on an annual basis. First, at least 75% of our gross income (excluding gross income from prohibited transactions) for each taxable year must be derived directly or indirectly from the following: investments relating to real property or mortgages on real property, including “rents from real property”; dividends received from other REITs; interest income derived from mortgage loans secured by real property (including certain types of mortgage-backed securities); interest on mortgage loans secured by both real and personal property if the fair market value of such personal property does not exceed 15% of the total fair market value of all property securing the loans; gains from the sale of real estate assets (except for gain from a nonqualified publicly offered REIT debt instrument (as defined below)); and income from certain kinds of temporary investments. Second, at least 95% of our gross income (excluding gross income from prohibited transactions) for each taxable year must be derived from the same items which qualify under the 75% gross income test, and from dividends, interest and gain from the sale or disposition of securities, which need not have any relation to real property.
Rents received by a REIT will qualify as “rents from real property” in satisfying the gross income requirements described above only if several conditions are met.
•The amount of rent must not be based in whole or in part on the income or profits of any person. However, an amount received or accrued generally will not be excluded from the term “rents from real property” solely by reason of being based on a fixed percentage or percentages of gross receipts or sales.
•Rents received from a tenant will not qualify as “rents from real property” in satisfying the gross income tests if the REIT, or a direct or indirect owner of 10% or more of the REIT, directly or constructively, owns 10% or more of such tenant (a “Related Party Tenant”). However, rental payments from a taxable REIT subsidiary will qualify as rents from real property even if we own more than 10% of the total value or combined voting power of the taxable REIT subsidiary if at least 90% of the property is leased to unrelated tenants and the rent paid by the taxable REIT subsidiary is substantially comparable to the rent paid by the unrelated tenants for comparable space.
•Rent attributable to personal property leased in connection with a lease of real property will not qualify as “rents from real property” if such rent exceeds 15% of the total rent received under the lease.
•For rents received to qualify as “rents from real property,” we generally must not operate or manage the property or furnish or render services to tenants, except through an “independent contractor” who is adequately compensated and from whom the REIT derives no income, or through a taxable REIT subsidiary. The “independent contractor” requirement, however, does not apply to the extent the services provided by the REIT are “usually or customarily rendered” in connection with the rental of space for occupancy only, and are not otherwise considered “rendered to the occupant.” In addition, a de minimis rule applies with respect to non-customary services. Specifically, if the value of the non-customary service income with respect to a property (valued at no less than 150% of the direct costs of performing such services) is 1% or less of the total income derived from the property, then all rental income except the non-customary service income will qualify as “rents from real property.” A taxable REIT subsidiary may provide services (including non-customary services) to a REIT’s tenants without “tainting” any of the rental income received by the REIT, and it will be able to manage or operate properties for third parties and generally engage in other activities unrelated to real estate.
We do not anticipate receiving rent that is based in whole or in part on the income or profits of any person (except by reason of being based on a fixed percentage or percentages of gross receipts or sales consistent with the rules described above). We also do not anticipate receiving more than a de minimis amount of rents from any Related Party Tenant or rents attributable to personal property leased in connection with real property that will exceed 15% of the total rents received with respect to such real property.
We provide services to our properties that we own through the Operating Partnership, and we believe that all of such services will be considered “usually or customarily rendered” in connection with the rental of space for occupancy only so that the provision of such services will not jeopardize the qualification of rent from the properties as “rents from real property.” In the case of any services that are not “usual and customary” under the foregoing rules, we intend to employ an “independent contractor” or a taxable REIT subsidiary to provide such services.
The Operating Partnership may receive certain types of income that will not qualify under the 75% or 95% gross income tests. In particular, dividends received from a taxable REIT subsidiary will not qualify under the 75% test. We believe, however, that the aggregate amount of such items and other non-qualifying income in any taxable year will not cause Brandywine to exceed the limits on non-qualifying income under either the 75% or 95% gross income tests.
If Brandywine fails to satisfy one or both of the 75% or 95% gross income tests for any taxable year, Brandywine may nevertheless qualify as a REIT for such year if it is entitled to relief under certain provisions of the Code. These relief provisions will be generally available if (1) the failure to meet such tests was due to reasonable cause and not due to willful neglect, (2) we have attached a schedule of the sources of our income to our return and (3) any
incorrect information on the schedule was not due to fraud with intent to evade tax. In addition, we must also file a disclosure schedule with the IRS after we determine that we have not satisfied one of the gross income tests. It is not possible, however, to state whether in all circumstances Brandywine would be entitled to the benefit of these relief provisions. As discussed above in “-Taxation of Brandywine as a REIT,” even if these relief provisions apply, a tax would be imposed based on the non-qualifying income.
Asset Tests
At the close of each quarter of each taxable year, Brandywine must satisfy the following five tests relating to the nature of our assets:
First, at least 75% of the value of our total assets must be represented by some combination of “real estate assets,” cash or cash items, U.S. government securities, and, under some circumstances, stock or debt instruments purchased with new capital. For this purpose, “real estate assets” include interests in real property, such as land, buildings, leasehold interests in real property, stock of other REITs, certain kinds of mortgage-backed securities and mortgage loans, and: (i) personal property leased in connection with real property to the extent that the rents from personal property are treated as “rent from real property” for purposes of the 75% income test, and (ii) debt instruments issued by publicly offered REITs. Assets that do not qualify for purposes of the 75% test are subject to the additional asset tests described below, while securities that do qualify for purposes of the 75% test are generally not subject to the additional asset tests.
Second, the value of any one issuer’s securities we own may not exceed 5% of the value of our total assets.
Third, we may not own more than 10% of the vote or value of any one issuer’s outstanding securities. The 5% and 10% tests do not apply to our interests in the Operating Partnership, non-corporate subsidiaries, taxable REIT subsidiaries and any qualified REIT subsidiaries, and the 10% value test does not apply with respect to certain “straight debt” securities.
The safe harbor under which certain types of securities are disregarded for purposes of the 10% value limitation includes (1) straight debt securities (including straight debt securities that provide for certain contingent payments); (2) any loan to an individual or an estate; (3) any rental agreement described in Section 467 of the Code, other than with a “related person”; (4) any obligation to pay rents from real property; (5) certain securities issued by a State or any political subdivision thereof, or the Commonwealth of Puerto Rico; (6) any security issued by a REIT; and (7) any other arrangement that, as determined by the Secretary of the Treasury, is excepted from the definition of a security. In addition, for purposes of applying the 10% value limitation, (a) a REIT’s interest as a partner in a partnership is not considered a security; (b) any debt instrument issued by a partnership is not treated as a security if at least 75% of the partnership’s gross income is from sources that would qualify for the 75% REIT gross income test and (c) any debt instrument issued by a partnership is not treated as a security to the extent of the REIT’s interest as a partner in the partnership.
Fourth, not more than 20% (25% for taxable years beginning before January 1, 2018) of the value of our assets may be represented by securities of one or more taxable REIT subsidiaries.
Fifth, not more than 25% of the value of our total assets may be represented by “nonqualified publicly offered REIT debt instruments.” “Nonqualified publicly offered REIT debt instruments” are debt instruments issued by publicly offered REITs that are not secured by a mortgage on real property.
Sixth, not more than 25% of the value of our total assets may consist of securities other than securities satisfying the 75% test.
We may own, directly or indirectly, common shares of certain entities that have elected or will elect to be treated as a real estate investment trusts (“Captive REITs”). Provided that each of the Captive REITs continues to qualify as a REIT (including satisfaction of the ownership, income, asset and distribution tests discussed herein) the common
shares of the Captive REITs will qualify as real estate assets under the 75% test. However, if any Captive REIT fails to qualify as a REIT in any year, then the common shares of such Captive REIT will not qualify as real estate assets under the 75% test. In addition, if we own, directly or indirectly, more than 10% of the common shares of each Captive REIT, Brandywine would not satisfy the 10% test if any Captive REIT were to fail to qualify as a REIT. Accordingly, Brandywine’s qualification as a REIT depends upon the ability of any more than 10% owned Captive REIT to continue to qualify as a REIT.
After initially meeting the asset tests at the close of any quarter, Brandywine will not lose its status as a REIT for failure to satisfy the asset tests at the end of a later quarter solely by reason of changes in asset values. If the failure to satisfy the asset tests results from an acquisition of securities or other property during a quarter, the failure can be cured by disposition of sufficient non-qualifying assets within 30 days after the close of that quarter. We intend to maintain adequate records of the value of our assets to ensure compliance with the asset tests, and to take such other action within 30 days after the close of any quarter as may be required to cure any noncompliance. However, there can be no assurance that such other action will always be successful. If we fail to cure any noncompliance with the asset tests within such time period, our status as a REIT would be lost.
The Code provides relief from certain failures to satisfy the REIT asset tests. If the failure relates to the 5% test or 10% test, and if the failure is de minimis (does not exceed the lesser of $10 million or 1% of our assets as of the end of the quarter), we may avoid the loss of our REIT status by disposing of sufficient assets to cure the failure within 6 months after the end of the quarter in which the failure was identified. For failures to meet the asset tests that are more than a de minimis amount, we may avoid the loss of our REIT status if: (1) the failure was due to reasonable cause, (2) we file a disclosure schedule at the end of the quarter in which the failure was identified, (3) we dispose of sufficient assets to cure the failure within 6 months after the end of the quarter and (4) we pay a tax equal to the greater of $50,000 or the highest corporate tax rate multiplied by the net income generated by the non-qualifying assets.
Annual Distribution Requirements
In order to qualify as a REIT, Brandywine is required to distribute dividends (other than capital gain dividends) to our shareholders in an amount at least equal to (1) the sum of (a) 90% of its “REIT taxable income” (computed without regard to the dividends paid deduction and the REIT’s net capital gain or loss) and (b) 90% of the net income (after tax), if any, from foreclosure property, minus (2) certain “excess” non-cash income as defined in the Code. These distributions must be paid in the taxable year to which they relate, or in the following taxable year if such distributions are declared in October, November or December of the taxable year, are payable to shareholders of record on a specified date in any such month, and are actually paid before the end of January of the following year.
Such distributions are treated as both paid by us and received by our shareholders on December 31 of the year in which they are declared.
For taxable years beginning after December 31, 2017, unless it elects otherwise, Brandywine’s deduction for net business interest expense will generally be limited to 30% of its taxable income, as adjusted for certain items of income, gain, deduction or loss. Any business interest deduction that is disallowed due to this limitation may be carried forward to future taxable years. If Brandywine, the Operating Partnership or the Subsidiary Partnerships (as defined below) are subject to this interest expense limitation, Brandywine’s REIT taxable income for a taxable year may be increased. Taxpayers that conduct certain real estate businesses may elect not to have this interest expense limitation apply to them, provided that they use an alternative depreciation system to depreciate certain property. Each of Brandywine, the Operating Partnership and the Subsidiary Partnerships may be eligible to make this election. If any such entity makes this election, although it would not be subject to the interest expense limitation described above, its depreciation deductions may be reduced and, as a result, Brandywine’s REIT taxable income for a taxable year may be increased.
In addition, at our election, a distribution for a taxable year may be declared before we timely file our tax return for the year provided we pay such distribution with or before our first regular dividend payment after such declaration, and such payment is made during the 12-month period following the close of such taxable year. Such distributions are taxable to our shareholders in the year in which paid, even though the distributions relate to our prior taxable year for purposes of the 90% distribution requirement.
To the extent that we distribute at least 90%, but less than 100%, of our net taxable income, we will be subject to tax at ordinary corporate tax rates on the retained portion. In addition, we may elect to retain, rather than distribute our net long-term capital gains and pay tax on such gains. In this case, we would elect to have our shareholders include their proportionate share of such undistributed long-term capital gains in their income and receive a corresponding credit for their proportionate share of the tax paid by us. Our shareholders would then increase their adjusted basis in our shares by the difference between the amount included in their long-term capital gains and the tax deemed paid with respect to their shares.
If we should fail to distribute during each calendar year (or, in the case of distributions with declaration and record dates falling in the last three months of the calendar year, by the end of January following such calendar year) at least the sum of (1) 85% of our REIT ordinary income for such year, (2) 95% of our REIT net capital gain income for such year and (3) any undistributed taxable income from prior periods, we would be subject to a 4% excise tax on the excess of such required distribution over the sum of (a) the amounts actually distributed plus (b) retained amounts on which corporate level tax is paid by us.
Brandywine intends to make timely distributions sufficient to satisfy the annual distribution requirements. In this regard, the limited partnership agreement of the Operating Partnership authorizes Brandywine, as general partner, to operate the partnership in a manner that will enable it to satisfy the REIT requirements and avoid the imposition of any federal income or excise tax liability. It is possible that we, from time to time, may not have sufficient cash or other liquid assets to meet the 90% distribution requirement. This could arise, for example, when there is an expenditure of cash for nondeductible items such as principal amortization or capital expenditures. In addition, because we may deduct capital losses only to the extent of our capital gains, our REIT taxable income may exceed our economic income. In order to meet the 90% distribution requirement, we may borrow or may cause the Operating Partnership to arrange for short-term or possibly long-term borrowing to permit the payment of required distributions, or we may pay dividends in the form of taxable in-kind distributions of property, including potentially, our shares.
Under certain circumstances, Brandywine may be able to rectify a failure to meet the distribution requirement for a given year by paying “deficiency dividends” to shareholders in a later year that may be included in Brandywine’s deduction for distributions paid for the earlier year. Thus, Brandywine may be able to avoid losing its REIT qualification or being taxed on amounts distributed as deficiency dividends. However, Brandywine will be required to pay to the IRS interest and a penalty based upon the amount of any deduction taken for deficiency dividends.
Failure to Qualify
The Code provides relief for many failures to satisfy the REIT requirements. In addition to the relief provisions for failures to satisfy the income and asset tests (discussed above), the Code provides additional relief for other failures to satisfy REIT requirements. If the failure is due to reasonable cause and not due to willful neglect, and we elect to pay a penalty of $50,000 for each failure, we can avoid the loss of our REIT status.
If Brandywine fails to qualify for taxation as a REIT in any taxable year and the relief provisions do not apply, it will be subject to tax (including, for tax years beginning before January 1, 2018, any applicable corporate alternative minimum tax) on its taxable income at regular corporate rates. Distributions to shareholders in any year in which Brandywine fails to qualify will not be deductible to us. In such event, to the extent of Brandywine’s current and accumulated earnings and profits, all distributions to shareholders will be taxable to them as dividends, and, subject to certain limitations of the Code, corporate distributees may be eligible for the dividends received deduction. Under current law, such dividends will generally be taxable to individual domestic shareholders at the 20% rate for
qualified dividends provided that applicable holding period requirements are met. Non-corporate shareholders, including individuals, generally may deduct up to 20% of dividends from a REIT, other than capital gain dividends and dividends treated as qualified dividend income, for taxable years beginning after December 31, 2017 and before January 1, 2026 for purposes of determining their U.S. federal income tax (but not for purposes of the 3.8% Medicare tax), subject to certain limitations. If we fail to qualify as a REIT, such shareholders may not claim this deduction with respect to dividends paid by us. Unless entitled to relief under specific statutory provisions, Brandywine also will be disqualified from taxation as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether in all circumstances Brandywine would be entitled to such statutory relief.
Prohibited Transactions
Net income derived from a prohibited transaction is subject to a 100% tax. The term “prohibited transaction” generally includes a sale or other disposition of property (other than foreclosure property) that is held primarily for sale to customers in the ordinary course of a trade or business. Under existing law, whether property is held as inventory or primarily for sale to customers in the ordinary course of a trade or business is a question of fact that depends on all the facts and circumstances of a particular transaction. We intend to hold properties for investment with a view to long-term appreciation, to engage in the business of acquiring, developing, owning and operating properties, and to make occasional sales of properties as are consistent with our investment objectives. No assurance can be given that any property that we sell will not be treated as property held for sale to customers, or that we can comply with certain safe-harbor provisions of the Code that would prevent the imposition of the 100% tax. The 100% tax does not apply to gains from the sale of property that is held through a taxable REIT subsidiary or other taxable corporation, although such income will be subject to tax in the hands of that corporation at regular corporate tax rates.
Foreclosure Property
Foreclosure property is real property (including interests in real property) and any personal property incident to such real property (1) that is acquired by a REIT as a result of the REIT having bid on the property at foreclosure, or having otherwise reduced the property to ownership or possession by agreement or process of law, after there was a default (or default was imminent) on a lease of the property or a mortgage loan held by the REIT and secured by the property, (2) for which the related loan or lease was made, entered into or acquired by the REIT at a time when default was not imminent or anticipated and (3) for which such REIT makes an election to treat the property as foreclosure property. REITs generally are subject to tax at the maximum corporate rate (currently 21%) on any net income from foreclosure property, including any gain from the disposition of the foreclosure property, other than income that would otherwise be qualifying income for purposes of the 75% gross income test. Any gain from the sale of property for which a foreclosure property election has been made will not be subject to the 100% tax on gains from prohibited transactions described above, even if the property is held primarily for sale to customers in the ordinary course of a trade or business.
Hedging
We may enter into hedging transactions with respect to one or more of our assets or liabilities. Hedging transactions could take a variety of forms, including interest rate swaps or cap agreements, options, futures contracts, forward rate agreements or similar financial instruments. Except to the extent provided by Treasury regulations, any income from a hedging transaction (i) made in the normal course of our business primarily to manage risk of interest rate or price changes or currency fluctuations with respect to borrowings made or to be made, or ordinary obligations incurred or to be incurred by us to acquire or own real estate assets or (ii) entered into primarily to manage the risk of currency fluctuations with respect to any item of income or gain that would be qualifying income under the 75% or 95% gross income tests (or any property which generates such income or gain), which is clearly identified as such before the close of the day on which it was acquired, originated or entered into, including gain from the disposition of such a transaction, will not constitute gross income for purposes of the 95% gross income test and the 75% gross income test. To the extent we enter into other types of hedging transactions, the income from those transactions is
likely to be treated as non-qualifying income for purposes of both the 75% and 95% gross income tests. We intend to structure any hedging transactions in a manner that does not jeopardize our ability to qualify as a REIT.
If Brandywine has entered into a hedging transaction described in (i) or (ii), and a portion of the hedged indebtedness or property is extinguished or disposed of and, in connection with such extinguishment or disposition, Brandywine enters into a new clearly identified hedging transaction (a “New Hedge”), income from the applicable hedge and income from the New Hedge (including gain from the disposition of such New Hedge) will not be treated as gross income for purposes of the 95% and 75% gross income tests.
Tax Aspect of Investments in the Operating Partnership and the Subsidiary Partnerships
The following discussion summarizes certain Federal income tax considerations applicable to Brandywine’s investment in the Operating Partnership and the Operating Partnership’s investments in subsidiary partnerships, limited liability companies, and joint ventures (referred to collectively as the “Subsidiary Partnerships”).
General
We may hold investments through entities that are classified as partnerships for U.S. federal income tax purposes, including our interest in the Operating Partnership and the equity interests in the Subsidiary Partnerships. In general, partnerships are “pass-through” entities that are not subject to U.S. federal income tax. Rather, partners are allocated their proportionate shares of the items of income, gain, loss, deduction and credit of a partnership, and are subject to tax on these items without regard to whether the partners receive a distribution from the partnership. We will include in our income our proportionate share of these partnership items of the Operating Partnership and the Subsidiary Partnerships for purposes of the various REIT income tests and in the computation of our REIT taxable income. Moreover, for purposes of the REIT asset tests, we will include our proportionate share of assets held by the Operating Partnership and the Subsidiary Partnerships. Consequently, to the extent that we hold, directly or indirectly through another “pass-through” entity, an equity interest in a partnership, the partnership’s assets and operations may affect our ability to qualify as a REIT.
Among the allocable share of deductions that Brandywine would receive are interest deductions of the Operating Partnership and its Subsidiary Partnerships. The TCJA limits a taxpayer’s interest expense deduction to the sum of 30% of adjusted taxable income, business interest, and certain other amounts. Adjusted taxable income does not include items of income or expense not allocable to a trade or business, business interest or expense, the new deduction for qualified business income, NOLs, and for years prior to 2022, deductions for depreciation, amortization, or depletion. For partnerships, the interest deduction limitation is applied at the partnership level, subject to certain adjustments to the partners for unused deduction limitation at the partnership level. The interest deduction limitation applies to taxable years beginning after December 31, 2017.
The TCJA allows a real property trade or business to elect out of this interest limitation so long as it uses a 40-year recovery period for nonresidential real property, a 30-year recovery period for residential rental property, and a 20-year recovery period for related improvements described below. Disallowed interest expense is carried forward indefinitely (subject to special rules for partnerships).
For taxpayers that do not use the TCJA’s real property trade or business exception to the business interest deduction limitations, the TCJA maintains the current 39-year and 27.5-year straight line recovery periods for nonresidential real property and residential rental property, respectively, and provides that tenant improvements for such taxpayers are subject to a general 15-year recovery period. Also, the TCJA temporarily allows 100% expensing of certain new or used tangible property through 2022, phasing out at 20% for each following year (with an election available for 50% expensing of such property if placed in service during the first taxable year ending after September 27, 2017). The changes apply, generally, to property acquired after September 27, 2017 and placed in service after September 27, 2017.
Classification of the Operating Partnership and the Subsidiary Partnerships as Partnerships
The investment by us in partnerships involves special tax considerations, including the possibility of a challenge by the IRS to the status of the Operating Partnership or any of the Subsidiary Partnerships as a partnership, as opposed to an association taxable as a corporation, for U.S. federal income tax purposes. If any of these entities were treated as an association for U.S. federal income tax purposes, it would be taxable as a corporation and, therefore, could be subject to an entity-level tax on its income. In such a situation, the character of our assets and items of our gross income would change and could preclude us from satisfying the REIT asset tests or the REIT income tests as discussed in “-Taxation of the Company-Asset Tests” and “-Taxation of the Company-Income Tests” above, and in turn could prevent us from qualifying as a REIT. See “-Taxation of the Company -Failure to Qualify” above, for a discussion of the effect of our failure to meet these tests for a taxable year. In addition, any change in the status of any of the Operating Partnership and the Subsidiary Partnerships for tax purposes might be treated as a taxable event, in which case we could have taxable income that is subject to the REIT distribution requirements without receiving any cash.
Treasury regulations provide that a domestic business entity not otherwise organized as a corporation (an “Eligible Entity”) may elect to be treated as a partnership or disregarded entity for federal income tax purposes. Generally, an Eligible Entity will be classified as a partnership or disregarded entity (depending on its number of owners) for federal income tax purposes unless it elects otherwise. The Operating Partnership and the Subsidiary Partnerships (other than those Subsidiary Partnerships that have elected to be treated as taxable REIT subsidiaries) intend to claim classification as partnerships or disregarded entities under these Treasury regulations. As a result, we believe that the Operating Partnership and the Subsidiary Partnerships (other than those Subsidiary Partnerships that have elected to be treated as taxable REIT subsidiaries) will be classified as partnerships or disregarded entities for U.S. federal income tax purposes. We have not requested and do not intend to request a ruling from the IRS that the Operating Partnership or the Subsidiary Partnerships will be classified as partnerships for U.S. federal income tax purposes.
To be partnerships for U.S. federal income tax purposes, the Operating Partnership and the Subsidiary Partnerships generally must not be “publicly traded partnerships.” A publicly traded partnership is a partnership whose interests are traded on an established securities market or are readily tradable on a secondary market (or a substantial equivalent). A publicly traded partnership is generally treated as a corporation for U.S. federal income tax purposes, but will not be so treated if, for each taxable year beginning after December 31, 1987 in which it was classified as a publicly traded partnership, at least 90% of the partnership’s gross income consisted of specified passive income, including real property rents (which includes rents that would be qualifying income for purposes of the 75% gross income test, with certain modifications that make it easier for the rents to qualify for the 90% passive income exception), gains from the sale or other disposition of real property, interest, and dividends (the “90% passive income exception”).
Treasury regulations provide limited safe harbors from treatment as a publicly traded partnership. We expect that the Operating Partnership and the Subsidiary Partnerships will fall within one of the “safe harbors” for the partnership to avoid being classified as a publicly traded partnership. However, the ability to satisfy the requirements of some of these safe harbors depends on the results of the actual operations of the relevant entities and accordingly no assurance can be given that any such partnership would not be treated as a publicly traded partnership. Even if a partnership failed to meet one of the safe harbors, it generally will not be treated as a corporation if it qualifies for the 90% passive income exception discussed immediately above.
Partnership Allocations
Although a partnership agreement generally will determine the allocation of income and losses among partners, such allocations will be disregarded for tax purposes if they do not comply with the provisions of Section 704(b) of the Code and the Treasury regulations promulgated thereunder, which require that partnership allocations respect the economic arrangement of the partners. If an allocation is not recognized for U.S. federal income tax purposes, the item subject to the allocation will be reallocated in accordance with the partners’ interests in the partnership, which will be determined by taking into account all of the facts and circumstances relating to the economic arrangement of
the partners with respect to such item. The Operating Partnership’s allocations of taxable income and loss are intended to comply with the requirements of Section 704(b) of the Code and the Treasury regulations promulgated thereunder.
Tax Allocations With Respect to Contributed Properties
Pursuant to Section 704(c) of the Code, items of income, gain, loss and deduction attributable to appreciated or depreciated property that is contributed to a partnership in exchange for an interest in the partnership must be allocated for U.S. federal income tax purposes in a manner such that the contributor is charged with or benefits from the unrealized gain or unrealized loss associated with the property at the time of the contribution. The amount of such unrealized gain or unrealized loss is generally equal to the difference between the fair market value of the contributed property at the time of contribution and the adjusted tax basis of such property at the time of contribution. Such allocations are solely for federal income tax purposes and do not affect other economic or legal arrangements among the partners.
Our Operating Partnership has entered into transactions involving the contribution to the Operating Partnership of appreciated property, and the Operating Partnership may enter into such transactions in the future. The partnership agreement of the Operating Partnership requires allocations of income, gain, loss and deduction attributable to contributed property to be made in a manner that is consistent with Section 704(c) of the Code. Treasury regulations issued under Section 704(c) give partnerships a choice of several methods of allocating taxable income with respect to contributed properties. Depending upon the method chosen, (1) our tax depreciation deductions attributable to those properties may be lower than they would have been if our Operating Partnership had acquired those properties for cash and (2) in the event of a sale of such properties, we could be allocated gain in excess of our corresponding economic or book gain. These allocations may cause us to recognize taxable income in excess of cash proceeds received by us, which might adversely affect our ability to comply with the REIT distribution requirements or result in our shareholders recognizing additional dividend income without an increase in distributions.
Depreciation
The Operating Partnership’s assets include a substantial amount of appreciated property contributed by its partners. Assets contributed to a partnership in a tax-free transaction generally retain the same depreciation method and recovery period as they had in the hands of the partner who contributed them to the partnership. Accordingly, a substantial amount of the Operating Partnership’s depreciation deductions for its real property are based on the historic tax depreciation schedules for the properties prior to their contribution to the Operating Partnership. The properties are being depreciated over a range of 15 to 40 years using various methods of depreciation which were determined at the time that each item of depreciable property was placed in service. In certain instances where a partnership interest rather than real property is contributed to the Partnership, the real property may not carry over its recovery period but rather may, similarly, be subject to the lengthier recovery period.
Basis in Operating Partnership Interest
Our adjusted tax basis in each of the partnerships in which we have an interest generally (1) will be equal to the amount of cash and the basis of any other property contributed to such partnership by us, (2) will be increased by (a) our allocable share of such partnership’s income and (b) our allocable share of any indebtedness of such partnership, and (3) will be reduced, but not below zero, by our allocable share of (a) such partnership’s loss and (b) the amount of cash and the tax basis of any property distributed to us and by constructive distributions resulting from a reduction in our share of indebtedness of such partnership.
If our allocable share of the loss (or portion thereof) of any partnership in which we have an interest would reduce the adjusted tax basis of our partnership interest in such partnership below zero, the recognition of such loss will be deferred until such time as the recognition of such loss (or portion thereof) would not reduce our adjusted tax basis below zero. To the extent that distributions to us from a partnership, or any decrease in our share of the nonrecourse indebtedness of a partnership (each such decrease being considered a constructive cash distribution to the partners),
would reduce our adjusted tax basis below zero, such distributions (including such constructive distributions) would constitute taxable income to us. Such distributions and constructive distributions normally would be characterized as long-term capital gain if our interest in such partnership has been held for longer than the long-term capital gain holding period (currently 12 months).
Sale of Partnership Property
Generally, any gain realized by a partnership on the sale of property held by the partnership for more than 12 months will be long-term capital gain, except for any portion of such gain that is treated as depreciation or cost recovery recapture. However, under requirements applicable to REITs under the Code, our share as a partner of any gain realized by the Operating Partnership on the sale of any property held as inventory or other property held primarily for sale to customers in the ordinary course of a trade or business will be treated as income from a prohibited transaction that is subject to a 100% penalty tax. See -Taxation of the Company-Prohibited Transactions.”
Partnership Audit Rules.
The Bipartisan Budget Act of 2015 revised the rules applicable to federal income tax audits of partnerships (such as the Operating Partnership) and the collection of any tax resulting from any such audits or other tax proceedings, generally for taxable years beginning after December 31, 2017. Under the applicable rules, a partnership itself may be liable for a tax computed by reference to the hypothetical increase in partner-level taxes (including interest and penalties) resulting from an adjustment of partnership tax items on audit, regardless of changes in the composition of the partners (or their relative ownership) between the year under audit and the year of the adjustment. The rules also include an elective alternative method under which the additional taxes resulting from the adjustment are assessed against the affected partners, subject to a higher rate of interest than otherwise would apply. Although it is uncertain how these rules will be implemented, it is possible that they could result in partnerships in which we directly or indirectly invest being required to pay additional taxes, interest and penalties as a result of an audit adjustment, and we, as a direct or indirect partner of those partnerships could be required to bear the economic burden of those taxes, interest and penalties even though we, as a REIT, may not otherwise have been required to pay additional corporate-level taxes as a result of the related audit adjustment. The changes created by these rules are sweeping and, in some respects, dependent on the promulgation of future regulations or other guidance by the U.S. Treasury. Investors are urged to consult with their tax advisors with respect to those changes and their potential impact on their investment in our shares.
Taxation of Shareholders
As used herein, a “U.S. Shareholder” means a beneficial owner of our common shares or preferred shares, who is, for U.S. federal income tax purposes:
•a citizen or individual resident of the United States;
•a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or any state thereof or the District of Columbia;
•an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
•a trust if it (a) is subject to the primary supervision of a court within the U.S. and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
As used herein, a “non-U.S. Shareholder” means a beneficial owner of our common shares or preferred shares that is not a “U.S. Shareholder” and that is not a partnership (or other entity treated as a partnership for U.S. federal income tax purposes).
If a partnership holds common shares or preferred shares, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding common
shares or preferred shares, you should consult your tax advisor with regard to the U.S. federal, state, local and non-U.S. tax consequences particular to your ownership of our common shares or preferred shares.
Taxation of Taxable U.S. Shareholders
Taxation of Ordinary Dividends on Shares
As long as Brandywine qualifies as a REIT, distributions made to Brandywine’s taxable U.S. Shareholders out of current or accumulated earnings and profits (and not designated as capital gain dividends) (“Ordinary Dividends”) will be dividends taxable to such U.S. Shareholders as ordinary income and will not be eligible for the dividends received deduction for corporations. However, for taxable years prior to 2026, individual shareholders generally are allowed to deduct 20% of the aggregate amount of Ordinary Dividends distributed by us that are “qualified REIT dividends,” subject to certain limitations. Pursuant to the Treasury regulations, in order for a dividend paid by a REIT to be eligible to be treated as a “qualified REIT dividend,” the shareholder must meet two holding period-related requirements. First, the shareholder must hold the REIT shares for a minimum of 46 days during the 91-day period that begins 45 days before the date on which the REIT share becomes ex-dividend with respect to the dividend. Second, the qualifying portion of the REIT dividend is reduced to the extent that the shareholder is under an obligation (whether pursuant to a short sale or otherwise) to make related payments with respect to positions in substantially similar or related property. The 20% deduction does not apply to REIT capital gain dividends or to REIT dividends that we designate as “qualified dividend income.” Like most of the other changes made by the TCJA applicable to non-corporate taxpayers, the 20% deduction will expire on December 31, 2025 unless Congress acts to extend it. Prospective investors should consult their tax advisors concerning these limitations on the ability to deduct all or a portion of dividends received on shares of our common shares or preferred shares.
Dividends received from REITs are generally not eligible for taxation at the preferential rates for qualified dividends received by individual shareholders. We may designate a distribution as qualified dividend income to the extent of (1) qualified dividend income we receive during the current year (for example, dividends received from our taxable REIT subsidiaries), plus (2) income on which we have been subject to corporate level tax during the prior year (for example, undistributed REIT taxable income), plus (3) any income attributable to the sale of a built in gain asset that was acquired from a C corporation in a carry-over basis transaction less the tax paid on that income. To the extent that we designate a dividend as qualified dividend income, an individual will be taxable at preferential rates (currently a 20% maximum federal rate, but see the discussion below “Taxation of Taxable U.S. Shareholders-Tax Rates Applicable to Individual Shareholders under the TCJA” below) on such qualified dividend income provided certain holding period requirements are met. However, we expect that ordinary dividends paid by Brandywine generally will not be eligible for treatment as qualified dividend income to any significant extent.
Capital Gain Distributions
Distributions that are designated as long-term capital gain dividends will be taxed as long-term capital gains (to the extent they do not exceed our actual net capital gain for the taxable year) without regard to the period for which the U.S. Shareholder has held its shares of beneficial interest. In general, U.S. Shareholders will be taxable on long-term capital gains, currently at a maximum rate of 20% (but see the discussion below “Taxation of Taxable U.S. Shareholders-Tax Rates Applicable to Individual Shareholders under the TCJA” below), except that the portion of such gain that is attributable to depreciation recapture will be taxable at the maximum rate of 25%. However, corporate shareholders may be required to treat up to 20% of certain capital gain dividends as ordinary income.
We may elect under the applicable provisions of the Code to retain and pay tax on our net capital gains. In such event U.S. Shareholders will be taxable on the U.S. Shareholders’ proportionate share of such undistributed capital gains. Each U.S. Shareholder would then receive a credit, for use on their return, in the amount of the U.S. Shareholders’ proportionate share of the capital gains tax paid by us. If the credit results in an amount owed to a U.S. Shareholder, such U.S. Shareholder would receive a refund. A U.S. Shareholder’s basis in our shares will be
increased by the amount of the shareholder’s allocable share of any retained capital gains less the shareholder’s allocable share of the tax paid by us on such capital gains.
Dividends Generally
Effective for distributions paid and treated as being paid in taxable years beginning after December 31, 2015, the aggregate amount of dividends that Brandywine may designate as “capital gain dividends” or “qualified dividend income” with respect to any taxable year may not exceed the dividends paid by Brandywine with respect to such taxable year, including dividends that are paid in the following taxable year and treated as having been paid with respect to such taxable year by being (1) declared before Brandywine timely files its tax return for such taxable year and (2) paid with or before the first regular dividend payment after such declaration.
Non-Dividend Distributions
Distributions in excess of current and accumulated earnings and profits (“Non-Dividend Distributions”) will not be taxable to a U.S. Shareholder to the extent that they do not exceed the adjusted basis of the U.S. Shareholder’s shares, but rather will reduce the adjusted basis of such shares. To the extent that Non-Dividend Distributions exceed the adjusted basis of a U.S. Shareholder’s shares, such distributions will be included in income as long-term capital gain (or short-term capital gain, generally, if the shares have been held for 12 months or less) assuming the shares are a capital asset in the hands of the U.S. Shareholder. In determining the extent to which a distribution on our shares constitutes a dividend for tax purposes, the earnings and profits of Brandywine will be allocated first to distributions with respect to the preferred shares and second to distributions with respect to common shares. Therefore, depending on our earnings and profits, distributions with respect to the preferred shares (as compared to distributions with respect to our common shares) are more likely to be treated as dividends than as a return of capital or a distribution in excess of basis.
Dividends Paid in Common Shares
We are allowed to satisfy the REIT distribution requirements with respect to certain taxable years by distributing a significant portion of our dividends in the form of common shares rather than cash. In the event that we pay a portion of a dividend in common shares, taxable U.S. Shareholders would generally be required to pay tax on the full amount of the dividend (including the fair market value of any common shares received) and the amount of the tax may exceed the amount of cash received. For taxable years prior to 2026, individual shareholders generally are allowed to deduct 20% of the aggregate amount of ordinary dividends distributed by us, subject to certain limitations.
Timing of Distributions
Any distribution declared by us in October, November or December of any year payable to a shareholder of record on a specified date in any such month shall be treated as both paid by Brandywine and received by the shareholder on December 31 of such year, provided that the distribution is actually paid by Brandywine not later than the end of January of the following calendar year. Shareholders may not include in their individual income tax returns any of Brandywine’s losses.
Sale or Exchange of Common and Preferred Shares
In general, a U.S. Shareholder will recognize capital gain or loss on the disposition of common or preferred shares equal to the difference between the sales price for such shares and the adjusted tax basis for such shares. In general, a U.S. Shareholder’s adjusted tax basis will equal the U.S. Shareholder’s acquisition cost, increased by the U.S. Shareholder’s allocable share of any retained capital gains, less the U.S. Shareholder’s allocable share of the tax paid by us on such retained capital gains, and reduced by Non-Dividend Distributions.
In general, capital gains recognized by individuals and other non-corporate U.S. Shareholders upon the sale or disposition of shares of our shares currently will be subject to a maximum U.S. federal income tax rate of 20%, if our shares are held for more than 12 months, and will be taxed at ordinary income rates (of up to 39.6% for tax years beginning on or before December 31, 2017 and 37% for tax years beginning after that date (but see the discussion below “Taxation of Taxable U.S. Shareholders-Tax Rates Applicable to Individual Shareholders under the TCJA” regarding the sunset of the 37% rate) if our shares are held for 12 months or less. Gains recognized by U.S. Shareholders that are corporations are subject to U.S. federal income tax at a maximum rate of 21% (and 35% for tax years beginning on or before December 31, 2017), whether or not classified as long-term capital gains.
Capital losses recognized by a U.S. Shareholder upon the disposition of our shares held for more than one year at the time of disposition will be considered long-term capital losses, and are generally available only to offset capital gain income of the U.S. Shareholder but not ordinary income (except in the case of individuals, who may offset up to $3,000 of ordinary income each year). However, any loss upon a sale or exchange of shares by a U.S. Shareholder who has held such shares for six months or less (after applying certain holding period rules) will be treated as a long-term capital loss to the extent such shareholder has received distributions from us required to be treated as long-term capital gain.
If a U.S. Shareholder recognizes a loss upon a subsequent disposition of our shares in an amount that exceeds a prescribed threshold, it is possible that the provisions of Treasury regulations involving “reportable transactions” could apply, with a resulting requirement to separately disclose the loss generating transactions to the IRS. While these regulations are directed towards “tax shelters,” they are written broadly, and apply to transactions that would not typically be considered tax shelters. Significant penalties apply for failure to comply with these requirements. You should consult your tax advisor concerning any possible disclosure obligation with respect to the receipt or disposition of our shares, or transactions that might be undertaken directly or indirectly by us. Moreover, you should be aware that we and other participants in transactions involving us (including our advisors) might be subject to disclosure or other requirements pursuant to these regulations.
Medicare Tax on Investment Income
Certain U.S. Shareholders who are individuals, estates or trusts and whose income exceeds certain thresholds must pay a 3.8% Medicare tax on “net investment income” which includes, among other things, dividends on shares, interest on debt securities and capital gains from the sale or other disposition of shares or debt securities, subject to certain exceptions. The temporary 20% deduction allowed by Section 199A of the Code, as added by the TCJA, with respect to ordinary REIT dividends received by non-corporate taxpayers is allowed only for purposes of Chapter 1 of the Code and thus is apparently not allowed as a deduction allocable to such dividends for purposes of determining the amount of net investment income subject to the 3.8% Medicare tax, which is imposed under Chapter 2A of the Code. Prospective investors should consult their tax advisors regarding the effect, if any, of this legislation on their ownership and disposition of our common shares, preferred shares or debt securities.
Passive Activity Losses and Investment Interest Limitations
Distributions from us and gain from the disposition of shares will not be treated as passive activity income and, therefore, U.S. Shareholders will not be able to apply any “passive losses” against such income. Distributions from us (to the extent they do not constitute a return of capital or capital gain dividends) will generally be treated as investment income for purposes of the investment interest limitation. A shareholder may elect to treat capital gain dividends and capital gains from the disposition of shares as investment income for purposes of the investment interest limitation, but in such event a shareholder will be taxed at ordinary income rates on such amounts.
Redemption of Preferred Shares
Our preferred shares are redeemable by us under certain circumstances. A redemption of preferred shares will be treated under Section 302 of the Code as a distribution taxable as a dividend (to the extent of our current and accumulated earnings and profits) at ordinary income rates, unless the redemption satisfies one of the tests set forth
in Section 302(b) of the Code and is therefore treated as a sale or exchange of the redeemed shares. The redemption will be treated as a sale or exchange if it (i) is “substantially disproportionate” with respect to the U.S. Shareholder, (ii) results in a “complete termination” of the U.S. Shareholder’s share interest in our company or (iii) is “not essentially equivalent to a dividend” with respect to the U.S. Shareholder, all within the meaning of Section 302(b) of the Code.
In determining whether any of these tests has been met, there must be taken into account not only any preferred shares owned by the U.S. Shareholder, but also such U.S. Shareholder’s ownership of our common shares, other series of preferred shares and any options to acquire any of the foregoing. The U.S. Shareholder also must take into account any such securities (including options) which are considered to be owned by such holder by reason of the constructive ownership rules set forth in Sections 318 and 302(c) of the Code. If a particular U.S. Shareholder owns (actually or constructively) no common shares or an insubstantial percentage of common shares or preferred shares, based upon current law, it is probable that the redemption of the preferred shares from such holder would be considered “not essentially equivalent to a dividend.” However, because the determination as to whether any of the alternative tests of Section 302(b) of the Code will be satisfied with respect to any particular holder of preferred shares depends upon the facts and circumstances at the time the determination must be made, prospective holders of preferred shares are advised to consult their own tax advisors to determine such tax treatment.
If a redemption of preferred shares is not treated as a distribution taxable as a dividend to a particular U.S. Shareholder, it will be treated as a taxable sale or exchange by that U.S. Shareholder. As a result, the U.S. Shareholder will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference between (i) the amount of cash and the fair market value of any property received (less any portion thereof attributable to accumulated and declared but unpaid dividends, which will be taxable as a dividend to the extent of our current and accumulated earnings and profits) and (ii) the U.S. Shareholder’s adjusted tax basis in the shares. Such gain or loss will be capital gain or loss if the shares were held as a capital asset, and will be long-term gain or loss if such shares were held for more than one year.
If the redemption is treated as a distribution taxable as a dividend, the amount of the distribution will be measured by the amount of cash and the fair market value of any property received by the U.S. Shareholder. The U.S. Shareholder’s adjusted tax basis in the preferred shares redeemed will be transferred to any other shareholdings of the U.S. Shareholder in Brandywine. If the U.S. Shareholder of the preferred shares owns no other shares, under certain circumstances, such basis may be transferred to a related person, or it may be lost entirely.
Information Reporting and Backup Withholding Applicable to U.S. Shareholders
In general, Brandywine will report to its U.S. Shareholders and the IRS the amount of distributions paid (unless the U.S. Shareholder is an exempt recipient) during each calendar year, and the amount of tax withheld, if any. Under the backup withholding rules, a U.S. Shareholder may be subject to backup withholding at the rate of 24% with respect to distributions paid unless such U.S. Shareholder (a) comes within certain exempt categories and, when required, demonstrates this fact, or (b) provides a taxpayer identification number, certifies as to no loss of exemption from backup withholding and otherwise complies with applicable requirements of the backup withholding rules. A U.S. Shareholder that does not provide us with their correct taxpayer identification number may also be subject to penalties imposed by the IRS. In addition, we may be required to withhold a portion of capital gain distributions to any U.S. Shareholder who fail to certify their non-foreign status to Brandywine. See “-Taxation of Non-U.S. Shareholders.” Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against the shareholder’s income tax liability, provided the required information is furnished to the IRS.
Tax Rates Applicable to Individual Shareholders under the TCJA
Long-term capital gains (i.e., generally capital gains with respect to assets held for more than one year) and “qualified dividends” received by an individual generally are subject to federal income tax at a maximum rate of
20%. Short-term capital gains (i.e., generally capital gains with respect to assets held for one year or less) generally are subject to federal income tax at ordinary income rates. Because we are not generally subject to federal income tax on the portion of our REIT taxable income or capital gains distributed to our shareholders, our dividends generally are not eligible for the 20% maximum tax rate on qualified dividends. Instead, our ordinary dividends generally are taxed at the higher tax rates applicable to ordinary income, the maximum rate of which is 37% for tax years beginning after December 31, 2017 (the rate was 39.6% for tax years beginning before that date) and before January 1, 2026. However, for taxable years beginning prior to January 1, 2026, individual shareholders are generally allowed to deduct 20% of the aggregate amount of ordinary dividends distributed by us, subject to certain limitations, which would reduce the maximum marginal effective tax rate for individuals on the receipt of such ordinary dividends to 29.6%. The 20% maximum tax rate for long-term capital gains and qualified dividends generally applies to:
•your long-term capital gains, if any, recognized on the disposition of our shares;
•our distributions designated as long-term capital gain dividends (except to the extent attributable to real estate depreciation, in which case such distributions are subject to a 25% tax rate to such extent);
•our dividends to the extent attributable to income upon which we have paid corporate income tax (e.g., to the extent that we distribute less than 100% of our taxable income).
Taxation of Tax-Exempt Shareholders
U.S. tax-exempt entities, including qualified employee pension and profit sharing trusts and individual retirement accounts, generally are exempt from U.S. federal income taxation. However, they are subject to taxation on their unrelated business taxable income (“UBTI”). Distributions by us to a shareholder that is a tax-exempt entity should generally not constitute UBTI, as defined in Section 512(a) of the Code provided that the tax-exempt entity has not financed the acquisition of its shares with “acquisition indebtedness” within the meaning of the Code and the shares are not otherwise used in an unrelated trade or business of the tax-exempt entity. Tax-exempt U.S. Shareholders that are social clubs, voluntary employee benefit associations, supplemental unemployment benefit trusts, and qualified group legal services plans exempt from U.S. federal income taxation under sections 501(c)(7), (c)(9), (c)(17) and (c)(20) of the Code, respectively, are subject to different UBTI rules, which generally will require them to characterize distributions from us as UBTI.
In certain circumstances, a pension trust (1) that is described in Section 401(a) of the Code, (2) is tax exempt under section 501(a) of the Code and (3) that owns more than 10% of our shares could be required to treat a percentage of the dividends from us as UBTI if we are a “pension-held REIT.” We will not be a pension-held REIT unless (1) either (A) one pension trust owns more than 25% of the value of our shares or (B) a group of pension trusts, each individually holding more than 10% of the value of our shares, collectively owns more than 50% of such shares and (2) we would not have qualified as a REIT but for the fact that Section 856(h)(3) of the Code provides that shares owned by such trusts shall be treated, for purposes of the requirement that not more than 50% of the value of the outstanding shares of a REIT is owned, directly or indirectly, by five or fewer “individuals” (as defined in the Code to include certain entities), as owned by beneficiaries of the trust rather than the trust itself. Certain restrictions on ownership and transfer of our shares should generally prevent a tax-exempt entity from owning more than 10% of the value of our shares, or us from becoming a pension-held REIT.
Tax-exempt U.S. Shareholders are urged to consult their tax advisors regarding the U.S. federal, state, local and foreign tax consequences of the acquisition, ownership and disposition of our shares.
Taxation of Non-U.S. Shareholders
The rules governing U.S. federal income taxation of non-U.S. Shareholders are complex and no attempt is made herein to provide more than a summary of such rules. Prospective non-U.S. Shareholders should consult with their own tax advisors to determine the impact of U.S. federal, state and local income and estate tax laws with regard to an investment in our shares, including any reporting requirements.
Ordinary Dividends
The portion of Ordinary Dividends received by non-U.S. Shareholders that are not attributable to gain from sales or exchanges by us of United States real property interests and which are not effectively connected with a U.S. trade or business of the non-U.S. Shareholder generally will be subject to a withholding tax equal to 30% of the gross amount of the distribution unless an applicable tax treaty reduces or eliminates that tax. Under some treaties, however, the lower rates generally applicable to dividends do not apply to dividends from REITs. We intend to withhold United States income tax at the rate of 30% on the gross amount of any such Ordinary Dividends paid to a non-U.S. Shareholder unless (1) a lower treaty rate applies and the non-U.S. Shareholder files with us a properly completed IRS Form W-8BEN or W-8BEN-E (or other applicable form) claiming the benefits of the lower treaty rate or (2) the non-U.S. Shareholder files with us an IRS Form W-8ECI claiming that the distribution is effectively connected with a U.S. trade or business.
In general, non-U.S. Shareholders will not be considered to be engaged in a U.S. trade or business solely as a result of their ownership of our shares. If income from the investment in our shares is treated as effectively connected with the non-U.S. Shareholder’s conduct of a United States trade or business, the non-U.S. Shareholder generally will be subject to a tax at graduated rates, in the same manner as U.S. Shareholders are taxed with respect to such distributions (and may also be subject to the 30% branch profits tax in the case of a non-U.S. Shareholder that is a foreign corporation).
Non-Dividend Distributions
Unless our shares constitute a U.S. real property interest (“USRPI”), any Non-Dividend Distributions will not be taxable to a non-U.S. Shareholder to the extent that such distributions do not exceed the adjusted basis of the shareholder’s shares, but rather will reduce the adjusted basis of the shareholder in such shares. To the extent that Non-Dividend Distributions exceed the adjusted basis of a non-U.S. Shareholder’s shares, such distributions will give rise to tax liability if the non-U.S. Shareholder would otherwise be subject to tax on any gain from the sale or disposition of its shares, as described below (See “-Taxation of Non-U.S. Shareholders-Dispositions of our Shares”). If it cannot be determined at the time a distribution is made whether or not such distribution will be in excess of current and accumulated earnings and profits, the distributions will be subject to withholding at the same rate as Ordinary Dividends. Because we generally cannot determine at the time we make a distribution whether or not the distribution will exceed our current and accumulated earnings and profits, we normally will withhold tax on the entire amount of any distribution at the same rate as we would withhold on Ordinary Dividends. However, amounts thus withheld are refundable to the non-U.S. Shareholder if it is subsequently determined that such distribution was, in fact, in excess of our current and accumulated earnings and profits.
If our shares constitute a USRPI, as described below (See “-Taxation of Non-U.S. Shareholders-Dispositions of our Shares”), Non-Dividend Distributions by us in excess of the non-U.S. Shareholder’s adjusted tax basis in our shares will be taxed under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”) at the rate of tax, including any applicable capital gains rates, that would apply to a U.S. Shareholder of the same type (e.g., an individual or a corporation, as the case may be), and the collection of the tax will be enforced by a refundable withholding at a rate of 15% (increased from 10% effective February 17, 2016) of the Non-Dividend Distribution.
Our shares will not be treated as a USRPI when held, directly or indirectly, by a “qualified shareholder” and, therefore, FIRPTA will not apply to such shares. However, certain investors in a qualified shareholder that owns more than 10% of our shares (directly or indirectly) that are not themselves qualified shareholders may be subject to FIRPTA withholding. A “qualified shareholder” is a foreign entity that (A)(i) is eligible for the benefits of a comprehensive income tax treaty with the United States that includes an exchange of information program and the principal class of interest of which is listed and regularly traded on one or more recognized stock exchanges (as defined in such comprehensive income tax treaty) or (ii) is a foreign partnership that is created or organized under foreign law as a limited partnership in a jurisdiction that has an agreement for the exchange of information with respect to taxes with the United States and has a class of limited partnership units which is regularly traded on the
New York Stock Exchange or Nasdaq Stock Market and the value of such class of limited partnership units is greater than 50% of the value of all of the partnership units of the foreign partnership, (B) is a qualified collective investment vehicle and (C) maintains records on the identity of each person who, at any time during the foreign person’s taxable year, holds directly 5% or more of the class of interest described in (A)(i) or (ii). A “qualified collective investment vehicle” is a foreign person that (x) under the comprehensive income tax treaty described in (A)(i) or (ii) of the prior sentence would be eligible for a reduced rate of withholding with respect to dividends paid by a REIT even if such person owned more than 10% of the REIT, (y) is a publicly traded partnership that is a withholding foreign partnership and would treated as a United States real property holding corporation if it were a United States corporation or (iii) which is designated as a qualified collective investment vehicle by the Secretary of the Treasury and is either (A) fiscally transparent or (B) required to include dividends in its gross income but is entitled to a deduction for distributions to its equity investors. Additionally, qualified foreign pension funds will not be subject to FIRPTA withholding. The rules concerning qualified shareholders and qualified foreign pension funds are complex and investors who believe they may be qualified shareholders or qualified foreign pension funds should consult with their own tax advisors to find out if these rules are applicable to them.
Capital Gain Distributions
Except as discussed below with respect to 10% or less holders of regularly traded classes of shares, distributions that are attributable to gain from sales or exchanges by us of United States real property interests will be taxed to a non-U.S. Shareholder under the provisions of FIRPTA. Under FIRPTA, distributions attributable to gain from sales of United States real property interests are taxed to a non-U.S. Shareholder as if such gain were effectively connected with a United States trade or business. Individuals who are non-U.S. Shareholders will be required to report such gain on a U.S. federal income tax return and such gain will be taxed at the normal capital gain rates applicable to U.S. individual shareholders (subject to applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals). Also, distributions subject to FIRPTA may be subject to a 30% branch profits tax in the hands of a foreign corporate shareholder not entitled to treaty relief. Brandywine is required by applicable Treasury regulations to withhold 21% of any distribution that could be designated by us as a capital gains dividend. The amount is creditable against the non-U.S. Shareholder’s U.S. tax liability.
However, distributions attributable to gain from sales or exchanges by us of United States real property interests are treated as ordinary dividends (not subject to the 21% withholding tax under FIRPTA) if the distribution is made to a non-U.S. Shareholder with respect to any class of shares which is “regularly traded” on an established securities market located in the United States and if the non-U.S. Shareholder did not own more than 10% of such class of shares at any time during the taxable year. Such distributions will generally be subject to a 30% U.S. withholding tax (subject to reduction under applicable treaty) and a non-U.S. Shareholder will not be required to report the distribution on a U.S. tax return. In addition, the branch profits tax will not apply to such distributions. See “-Taxation of Non-U.S. Shareholders-Ordinary Dividends.”
Although the law is not clear on the matter, it appears that amounts we designate as undistributed capital gains in respect of the stock held by U.S. Shareholders generally should be treated with respect to non-U.S. Shareholders in the same manner as actual distributions by us of capital gain dividends. Under that approach, the non-U.S. Shareholders would be able to offset as a credit against their U.S. federal income tax liability resulting therefrom their proportionate share of the tax paid by us on the undistributed capital gains, and to receive from the IRS a refund to the extent that their proportionate share of this tax paid by us were to exceed their actual U.S. federal income tax liability. If we were to designate a portion of our net capital gain as undistributed capital gain, a non-U.S. Shareholder is urged to consult its tax advisor regarding the taxation of such undistributed capital gain.
Dividends Paid in Common Shares
We are allowed to satisfy the REIT distribution requirements with respect to certain taxable years by distributing a significant portion of our dividends in the form of common shares rather than cash. In the event that we pay a portion of a dividend in common shares, we may be required to withhold U.S. tax with respect to such dividend, including in respect of all or a portion of such dividend that is payable in common shares.
Dispositions of Our Shares
Unless our shares constitutes a USRPI, gain recognized by a non-U.S. Shareholder upon a sale of shares generally will not be taxed under FIRPTA. Gain not subject to FIRPTA will nonetheless be taxable in the United States to a non-U.S. Shareholder if (1) investment in the shares is effectively connected with the non-U.S. Shareholder’s United States trade or business, in which case the non-U.S. Shareholder will be subject to the same treatment as U.S. Shareholders with respect to such gain or (2) the non-U.S. Shareholder is a nonresident alien individual who was present in the United States for 183 days or more during the taxable year, in which case the nonresident alien individual will be subject to a 30% tax on the individual’s capital gains.
Our shares will not be treated as a USRPI if Brandywine is a “domestically controlled REIT” (also referred to in the applicable Treasury regulations as a “domestically controlled qualified investment entity”), defined generally as a REIT in which at all times during a specified testing period less than 50% in value of the shares of beneficial interest was held directly or indirectly by foreign persons. It is currently anticipated that we will be a “domestically controlled REIT,” and therefore the sale of shares by a non-U.S. Shareholder will not be subject to taxation under FIRPTA. However, because the shares may be traded, we cannot be sure that we will continue to be a “domestically controlled REIT.” Further, even if we are a domestically controlled REIT, pursuant to “wash sale” rules under FIRPTA, a non-U.S. Shareholder may incur tax under FIRPTA to the extent such non-U.S. Shareholder disposes of our shares within a certain period prior to a capital gain distribution and directly or indirectly (including through certain affiliates) reacquires our shares within certain prescribed periods.
However, a non-U.S. shareholder will not incur tax under FIRPTA on a sale of common or preferred shares if (1) our preferred shares or common shares are “regularly traded” on an established securities market within the meaning of applicable Treasury regulations and (2) the non-U.S. Shareholder did not actually, or constructively under specified attribution rules under the Code, own more than 10% of our preferred shares or common shares at any time during the shorter of the five-year period preceding the disposition or the holder’s holding period.
If gain on the sale of our shares is subject to taxation under FIRPTA, the non-U.S. Shareholder will be subject to the same treatment as a U.S. Shareholder with respect to such gain, subject to applicable alternative minimum tax and a special alternative minimum tax in the case of non-resident alien individuals, and the purchaser of the shares could be required to withhold 15% (increased from 10% effective February 17, 2016) of the purchase price and remit such amount to the IRS.
Information Reporting and Backup Withholding Applicable to Non-U.S. Shareholders
We must report annually to the IRS and to each non-U.S. Shareholder the amount of dividends paid to such holder and the tax withheld with respect to such dividends, regardless of whether withholding was required. Copies of the information returns reporting such dividends and withholding may also be made available to the tax authorities in the country in which the non-U.S. Shareholder resides under the provisions of an applicable income tax treaty.
Payments of dividends or of proceeds from the disposition of stock made to a non-U.S. Shareholder may be subject to information reporting and backup withholding unless such holder establishes an exemption, for example, by properly certifying its non-United States status on an IRS Form W-8BEN or another appropriate version of IRS Form W-8. Notwithstanding the foregoing, backup withholding may apply if either we or our paying agent has actual knowledge, or reason to know, that a non-U.S. Shareholder is a United States person.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against the shareholder’s income tax liability, provided the required information is furnished to the IRS.
Additional Withholding Requirements under “FATCA”
Under Sections 1471 through 1474 of the Code (such Sections commonly referred to as “FATCA”), payments of dividends to a non-U.S. Shareholder will be subject to 30% withholding tax if the non-U.S. Shareholder fails to provide the withholding agent with documentation sufficient to show that it is compliant with the FATCA or otherwise exempt from withholding under FATCA. Generally, such documentation is provided on an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. If a dividend payment is both subject to withholding under FATCA and subject to withholding tax discussed above, the withholding under FATCA may be credited against, and therefore reduce, such other withholding tax. Based upon proposed Treasury regulations, which may be relied upon by taxpayers until the final Treasury regulations are issued, the FATCA withholding that was to be effective on January 1, 2019 with respect to payments of the gross proceeds no longer applies.
Non-U.S. Shareholders should consult their tax advisors to determine the applicability of this legislation in light of their individual circumstances.
State, Local and Foreign Tax Consequences
Brandywine, the Operating Partnership, the Subsidiary Partnerships and Brandywine’s shareholders may be subject to state, local and foreign taxation in various jurisdictions, including those in which it or they transact business or reside. The state, local and foreign tax treatment of Brandywine, the Operating Partnership, the Subsidiary Partnerships and Brandywine’s shareholders may not conform to the U.S. federal income tax consequences discussed above. Any foreign taxes incurred by us would not pass through to shareholders as a credit against their U.S. federal income tax liability. Prospective shareholders should consult their own tax advisors regarding the effect of state, local and foreign tax laws on an investment in our shares.
Legislative or Other Actions Affecting REITs
The rules dealing with U.S. federal income taxation are constantly under review by persons involved in the legislative process and by the IRS and the U.S. Treasury Department. No assurance can be given as to whether, when, or in what form, the U.S. federal income tax laws applicable to us and our shareholders may be enacted. Changes to the U.S. federal tax laws and interpretations of U.S. federal tax laws could adversely affect an investment in our shares.
Taxation of Holders of Debt Securities
This section describes the material U.S. federal income tax consequences of owning the debt securities that Brandywine Realty Trust or Brandywine Operating Partnership may offer. This summary is for general information only and is not tax advice. The tax consequences of owning any particular issue of debt securities will be discussed in the applicable prospectus supplement.
As used herein, a “U.S. Holder” means a beneficial owner of our debt securities, who is, for U.S. federal income tax purposes:
•a citizen or individual resident of the United States;
•a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or any state thereof or the District of Columbia;
•an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
•a trust if it (a) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
As used herein, a “non-U.S. Holder” means a beneficial owner of our debt securities that is not a “U.S. Holder,” and that is not a partnership (or other entity treated as a partnership for U.S. federal income tax purposes).
If a partnership holds debt securities, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding debt securities, you should consult your tax advisor.
Pursuant to the TCJA, for taxable years beginning after December 31, 2017 (and for taxable years beginning after December 31, 2018 for instruments issued with original issue discount (“OID”)), an accrual method taxpayer that reports revenues on an applicable financial statement generally must recognize income for U.S. federal income tax purposes no later than the taxable year in which such income is taken into account as revenue in an applicable financial statement of the taxpayer. To the extent this rule is inconsistent with the rules described in the subsequent discussion, this rule supersedes such discussion. Thus, this rule could potentially require such a taxpayer to recognize income for U.S. federal income tax purposes with respect to the debt securities prior to the time such income would be recognized pursuant to the rules described in the subsequent discussion. The Treasury Department released final Treasury regulations that exclude from this rule any item of gross income for which a taxpayer uses a special method of accounting required by certain sections of the Internal Revenue Code, including income subject to the timing rules for OID and de minimis OID, income under the contingent payment debt instrument rules, income under the variable rate debt instrument rules, and market discount (including de minimis market discount). The final Treasury regulations are generally applicable for tax years beginning on or after January 1, 2021. Taxpayers may choose to apply the final regulations, in their entirety and in a consistent manner, to tax years beginning before the effective date (December 30, 2020). You should consult your tax advisors regarding the potential applicability of these rules to your investment in the debt securities.
Taxation of U.S. Holders
Interest
The stated interest on debt securities generally will be taxable to a U.S. Holder as ordinary income at the time that it is paid or accrued, in accordance with the U.S. Holder’s method of accounting for U.S. federal income tax purposes.
Original Issue Discount
If you own debt securities issued with OID, you will be subject to special tax accounting rules, as described in greater detail below. In that case, you should be aware that you generally must include OID in gross income (as ordinary income) in advance of the receipt of cash attributable to that income, regardless of your method of accounting for U.S. federal income tax purposes. However, you generally will not be required to include separately in income cash payments received on the debt securities, even if denominated as interest, to the extent those payments do not constitute “qualified stated interest,” as defined below. If we determine that a particular debt security will be an OID debt security, we will disclose that determination in the prospectus supplement relating to those debt securities.
A debt security with an “issue price” that is less than the “stated redemption price at maturity” (generally the sum of all payments to be made on the debt security other than “qualified stated interest”) generally will be issued with OID in an amount equal to that difference if that difference is at least 0.25% of the stated redemption price at maturity multiplied by the number of complete years to maturity of the debt security. The “issue price” of each debt security in a particular offering generally will be the first price at which a substantial amount of that particular offering is sold to the public. The term “qualified stated interest” means stated interest that is unconditionally payable in cash or in property, other than debt instruments of the issuer, and the interest to be paid meets all of the following conditions:
•it is payable at least once per year;
•it is payable over the entire term of the debt security; and
•it is payable at a single fixed rate or, subject to certain conditions, based on one or more interest indices.
If we determine that particular debt securities of a series will bear interest that is not qualified stated interest, we will disclose that determination in the prospectus supplement relating to those debt securities.
If you own a debt security issued with “de minimis” OID, which is discount that is not OID because it is less than 0.25% of the stated redemption price at maturity multiplied by the number of complete years to maturity of the debt security, you generally must include the de minimis OID in income at the time principal payments on the debt securities are made in proportion to the amount paid. Any amount of de minimis OID that you have included in income will be treated as capital gain.
Certain of the debt securities may contain provisions permitting them to be redeemed prior to their stated maturity at our option and/or at your option. OID debt securities containing those features may be subject to rules that differ from the general rules discussed herein. If you are considering the purchase of OID debt securities with those features, you should carefully examine the applicable prospectus supplement and should consult your own tax advisor with respect to those features because the tax consequences to you with respect to OID will depend, in part, on the particular terms and features of the debt securities.
If you own OID debt securities with a maturity upon issuance of more than one year you generally must include OID in income in advance of the receipt of some or all of the related cash payments using the “constant yield method” described in the following paragraphs. This method takes into account the compounding of interest. If you own OID debt securities with a maturity upon issuance of more than five years, certain rules that apply to applicable high yield discount obligations may apply to the debt securities, in which case you should carefully examine the applicable prospectus and should consult your own tax advisor regarding the U.S. federal income tax consequences to you of holding and disposing of those debt securities.
The amount of OID that you must include in income if you are the initial holder of an OID debt security is the sum of the “daily portions” of OID with respect to the debt security for each day during the taxable year or portion of the taxable year in which you held that debt security (“accrued OID”). The daily portion is determined by allocating to each day in any “accrual period” a pro rata portion of the OID allocable to that accrual period. The “accrual period” for an OID debt security may be of any length and may vary in length over the term of the debt security, provided that each accrual period is no longer than one year and each scheduled payment of principal or interest occurs on the first day or the final day of an accrual period. The amount of OID allocable to any accrual period is an amount equal to the excess, if any, of:
•the debt security’s “adjusted issue price” at the beginning of the accrual period multiplied by its yield to maturity, determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period, over
•the aggregate of all qualified stated interest allocable to the accrual period.
OID allocable to a final accrual period is the difference between the amount payable at maturity, other than a payment of qualified stated interest, and the adjusted issue price at the beginning of the final accrual period. Special rules will apply for calculating OID for an initial short accrual period. The “adjusted issue price” of a debt security at the beginning of any accrual period is equal to its issue price increased by the accrued OID for each prior accrual period, determined without regard to the amortization of any acquisition or bond premium, as described below, and reduced by any payments made on the debt security (other than qualified stated interest) on or before the first day of the accrual period. Under these rules, you will generally have to include in income increasingly greater amounts of OID in successive accrual periods. We are required to provide information returns stating the amount of OID accrued on debt securities held by persons of record other than corporations and other exempt holders.
Floating rate debt securities are subject to special OID rules. In the case of an OID debt security that is a floating rate debt security, both the “yield to maturity” and “qualified stated interest” will be determined solely for purposes of calculating the accrual of OID as though the debt security will bear interest in all periods at a fixed rate generally equal to the rate that would be applicable to interest payments on the debt security on its date of issue or, in the case
of certain floating rate debt securities, the rate that reflects the yield to maturity that is reasonably expected for the debt security. Additional rules may apply if either:
•the interest on a floating rate debt security is based on more than one interest index; or
•the principal amount of the debt security is indexed in any manner.
This discussion does not address the tax rules applicable to debt securities with an indexed principal amount. If you are considering the purchase of floating rate OID debt securities or securities with indexed principal amounts, you should carefully examine the prospectus supplement relating to those debt securities, and you should consult your own tax advisor regarding the U.S. federal income tax consequences to you of holding and disposing of those debt securities.
You may elect to treat all interest on any debt securities as OID and calculate the amount includible in gross income under the constant yield method described above. For purposes of this election, interest includes stated interest, acquisition discount, OID, de minimis OID, market discount, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium or acquisition premium. You must make this election for the taxable year in which you acquired the debt security, and you may not revoke the election without the consent of the IRS. You should consult with your own tax advisor about this election.
Market Discount
If you purchase debt securities, other than OID debt securities, for an amount that is less than their stated redemption price at maturity, or, in the case of OID debt securities, their adjusted issue price, the amount of the difference will be treated as “market discount” for U.S. federal income tax purposes, unless that difference is less than a specified de minimis amount. Under the market discount rules, you will be required to treat any principal payment on, or any gain on the sale, exchange, retirement, redemption or other disposition of, the debt securities as ordinary income to the extent of the market discount that you have not previously included in income and are treated as having accrued on the debt securities at the time of their payment or disposition. In addition, you may be required to defer, until the maturity of the debt securities or their earlier disposition in a taxable transaction, the deduction of all or a portion of the interest expense on any indebtedness attributable to the debt securities. You may elect, on a debt security-by-debt security basis, to deduct the deferred interest expense in a tax year prior to the year of disposition. You should consult your own tax advisor before making this election. Any market discount will be considered to accrue ratably during the period from the date of acquisition to the maturity date of the debt securities, unless you elect to accrue on a constant interest method. You may elect to include market discount in income currently as it accrues, on either a ratable or constant interest method, in which case the rule described above regarding deferral of interest deductions will not apply. Your election to include market discount in income currently, once made, applies to all market discount obligations acquired by you on or after the first taxable year to which your election applies and may not be revoked without the consent of the IRS. You should consult your own tax advisor before making this election.
Acquisition Premium and Amortizable Bond Premium
If you purchase OID debt securities for an amount that is greater than their adjusted issue price but equal to or less than the sum of all amounts payable on the debt securities after the purchase date other than payments of qualified stated interest, you will be considered to have purchased those debt securities at an “acquisition premium.” Under the acquisition premium rules, the amount of OID that you must include in gross income with respect to those debt securities for any taxable year will be reduced by the portion of the acquisition premium properly allocable to that year.
If you purchase debt securities (including OID debt securities) for an amount in excess of the sum of all amounts payable on those debt securities after the purchase date other than qualified stated interest, you will be considered to have purchased those debt securities at a “premium” and, if they are OID debt securities, you will not be required to include any OID in income. You generally may elect to amortize the premium over the remaining term of those debt securities on a constant yield method as an offset to interest when includible in income under your regular
accounting method. In the case of debt securities that provide for alternative payment schedules, bond premium is calculated by assuming that (a) you will exercise or not exercise options in a manner that maximizes your yield and (b) we will exercise or not exercise options in a manner that minimizes your yield (except that we will be assumed to exercise call options in a manner that maximizes your yield). If you do not elect to amortize bond premium, that premium will decrease the gain or increase the loss you would otherwise recognize on disposition of the debt security. Your election to amortize premium on a constant yield method will also apply to all taxable debt obligations held or subsequently acquired by you on or after the first day of the first taxable year to which the election applies. You may not revoke the election without the consent of the IRS. You should consult your own tax advisor before making this election.
Sale, Exchange or Retirement of Debt Securities
A U.S. Holder of debt securities will recognize gain or loss upon the sale, exchange, retirement, redemption or other taxable disposition of such debt securities in an amount equal to the difference between:
•the amount of cash and the fair market value of other property received in exchange for such debt securities, other than amounts attributable to accrued but unpaid qualified stated interest, which will be subject to tax as ordinary income to the extent not previously included in income; and
•the U.S. Holder’s adjusted tax basis in such debt securities.
A U.S. Holder’s adjusted tax basis in a debt security generally will equal the cost of the debt security to such holder (A) increased by the amount of OID or accrued market discount (if any) previously included in income by such holder and (B) decreased by (i) the amount of any payments other than qualified stated interest payments and (ii) any amortizable bond premium taken by such holder.
Any gain or loss recognized will generally be capital gain or loss, and such capital gain or loss will generally be long-term capital gain or loss if the debt security has been held by the U.S. Holder for more than one year. Long-term capital gain for non-corporate taxpayers is subject to reduced rates of U.S. federal income taxation (currently, a 20% maximum federal rate but see the discussion above “Taxation of Shareholders-Taxation of Taxable U.S. Shareholders-Tax Rates Applicable to Individual Shareholders under the TCJA”). The deductibility of capital losses is subject to certain limitations.
Medicare Tax on Investment Income
Certain U.S. Holders who are individuals, estates or trusts and whose income exceeds certain thresholds must pay a 3.8% Medicare tax on "net investment income" which includes, among other things, dividends on shares, interest on debt securities and capital gains from the sale or other disposition of shares or debt securities, subject to certain exceptions. Prospective investors should consult their tax advisors regarding the effect, if any, of this legislation on their ownership and disposition of our debt securities.
Taxation of Tax-Exempt Holders of Debt Securities
Interest income accrued on the debt securities should not constitute unrelated business taxable income to a tax-exempt holder. As a result, a tax-exempt holder generally should not be subject to U.S. federal income tax on the interest income accruing on our debt securities. Similarly, any gain recognized by the tax-exempt holder in connection with a sale or other disposition of a debt security generally should not be unrelated business taxable income. However, if a tax-exempt holder were to finance its acquisition of the debt security with debt, a portion of the interest income and gain attributable to the debt security would constitute unrelated business taxable income pursuant to the “debt-financed property” rules. Tax-exempt holders should consult their own tax advisors to determine the potential tax consequences of an investment in our debt securities.
Taxation of Non-U.S. Holders of Debt Securities
The rules governing the U.S. federal income taxation of a non-U.S. Holder are complex and no attempt will be made herein to provide more than a summary of such rules. Non-U.S. Holders should consult their tax advisors to
determine the effect of U.S. federal, state, local and foreign tax laws, as well as tax treaties, with regard to an investment in the debt securities.
Interest
Subject to the discussions of backup withholding and “FATCA” below, interest (including OID) paid to a non-U.S. Holder of debt securities will not be subject to U.S. federal withholding tax under the “portfolio interest exemption,” provided that:
•interest paid on debt securities is not effectively connected with a non-U.S. Holder’s conduct of a trade or business in the United States;
•the non-U.S. Holder does not actually or constructively own 10% or more of the capital or profits interest in the Operating Partnership (in the case of debt issued by the Operating Partnership), or 10% or more of the total combined voting power of all classes of stock of Brandywine entitled to vote (in the case of debt issued by Brandywine);
•the non-U.S. Holder is not
◦a controlled foreign corporation that is related to the Operating Partnership or Brandywine, as applicable, or
◦a bank that receives such interest on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; and
•the beneficial owner of debt securities provides a certification, which is generally made on an IRS Form W-8BEN or W-8BEN-E, as applicable, or a suitable substitute form and signed under penalties of perjury, that it is not a United States person.
A payment of interest (including OID) to a non-U.S. Holder that does not qualify for the portfolio interest exemption and that is not effectively connected to a United States trade or business will be subject to U.S. federal withholding tax at a rate of 30%, unless a United States income tax treaty applies to reduce or eliminate withholding.
A non-U.S. Holder will generally be subject to tax in the same manner as a U.S. Holder with respect to payments of interest (including OID) if such payments are effectively connected with the conduct of a trade or business by the non-U.S. Holder in the United States and, if an applicable tax treaty requires, such interest is attributable to a United States permanent establishment maintained by the non-U.S. Holder. In some circumstances, such effectively connected income received by a non-U.S. Holder which is a corporation may be subject to an additional “branch profits tax” at a 30% base rate or, if applicable, a lower treaty rate.
To claim the benefit of a lower treaty rate or to claim exemption from withholding because the income is effectively connected with a United States trade or business, the non-U.S. Holder must provide a properly executed IRS Form W-8BEN or W-8BEN-E (in the case of a treaty), IRS Form W-8ECI (in the case of effectively connected income) or a suitable substitute form, as applicable, prior to the payment of interest. Such certificate must contain, among other information, the name and address of the non-U.S. Holder, as well as applicable U.S. and foreign tax identification numbers.
Non-U.S. Holders are urged to consult their own tax advisors regarding applicable income tax treaties, which may provide different rules.
Sale, Exchange or Retirement of Debt Securities
Subject to the discussions of backup withholding and “FATCA” below, a non-U.S. Holder generally will not be subject to U.S. federal income tax or withholding tax on gain realized on the sale, exchange, retirement, redemption or other taxable disposition of debt securities unless:
•the non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of the disposition and certain other conditions are met; or
•the gain is effectively connected with the conduct of a trade or business of the non-U.S. Holder in the United States and, if an applicable tax treaty requires, such gain is attributable to a United States permanent establishment maintained by such non-U.S. Holder.
A non-U.S. Holder will generally be subject to tax in the same manner as a U.S. Holder with respect to gain realized on the sale, exchange, retirement, redemption or other taxable disposition of debt securities if such gain is effectively connected with the conduct of a trade or business by the non-U.S. Holder in the United States and, if an applicable tax treaty requires, such gain is attributable to a United States permanent establishment maintained by the non-U.S. Holder. In certain circumstances, a non-U.S. Holder that is a corporation may be subject to an additional “branch profits tax” at a 30% rate or, if applicable, a lower treaty rate on such income.
U.S. Federal Estate Tax
If you are an individual, your estate will not be subject to U.S. federal estate tax on the debt securities beneficially owned by you at the time of your death, provided that any payment to you on the debt securities, including OID, would be eligible for exemption from the 30% U.S. federal withholding tax under the “portfolio interest exemption” described above, without regard to the certification requirement.
Information Reporting and Backup Withholding Applicable to Holders of Debt Securities
U.S. Holders
Certain U.S. Holders may be subject to information reporting requirements on payments of interest (including OID) on debt securities and payments of the proceeds of the sale, exchange, retirement, redemption or other taxable disposition of debt securities, and backup withholding, currently imposed at a rate of 24%, may apply to such payments if the U.S. Holder:
•fails to furnish an accurate taxpayer identification number, or TIN, to the payor in the manner required;
•is notified by the IRS that it has failed to properly report payments of interest or dividends; or
•under certain circumstances, fails to certify, under penalties of perjury, that it has furnished a correct TIN and that it has not been notified by the IRS that it is subject to backup withholding.
Non-U.S. Holders
A non-U.S. Holder is generally not subject to backup withholding with respect to payments of interest (including OID) on debt securities if it certifies as to its status as a non-U.S. Holder under penalties of perjury or if it otherwise establishes an exemption, provided that the applicable withholding agent does not have actual knowledge or reason to know that the non-U.S. Holder is a United States person or that the conditions of any other exemptions are not, in fact, satisfied. Information reporting requirements, however, will generally apply to payments of interest (including OID) to non-U.S. Holders. Copies of these information returns may also be made available under the provisions of a specific treaty or agreement to the tax authorities of the country in which the non-U.S. Holder resides.
The payment of the proceeds from the disposition of debt securities to or through the United States office of any broker, United States or foreign, will be subject to information reporting and possible backup withholding unless the owner certifies as to its non-United States status under penalties of perjury or otherwise establishes an exemption, provided that the broker does not have actual knowledge or reason to know that the non-U.S. Holder is a United States person or that the conditions of any other exemption are not, in fact, satisfied.
The payment of the proceeds from the disposition of debt securities to or through a non-United States office of a non-United States broker that is not a “United States related person” generally will not be subject to information reporting or backup withholding. For this purpose, a “United States related person” includes:
•a controlled foreign corporation for U.S. federal income tax purposes;
•a foreign person 50% or more of whose gross income from all sources for the three-year period ending with the close of its taxable year preceding the payment, or for such part of the period that the broker has been in
existence, is derived from activities that are effectively connected with the conduct of a United States trade or business; or
•a foreign partnership that at any time during the partnership’s taxable year is either engaged in the conduct of a trade or business in the United States or of which 50% or more of its income or capital interests are held by United States persons.
In the case of the payment of proceeds from the disposition of debt securities to or through a non-United States office of a broker that is either a United States person or a United States related person, the payment may be subject to information reporting unless the broker has documentary evidence in its files that the owner is a non-U.S. Holder and the broker has no knowledge or reason to know to the contrary. Backup withholding will not apply to payments made through foreign offices of a broker that is a United States person or a United States related person, absent actual knowledge that the payee is a United States person.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a holder will be allowed as a refund or a credit against such holder’s U.S. federal income tax liability, provided that the requisite procedures are followed.
Holders of debt securities are urged to consult their tax advisors regarding their qualification for exemption from backup withholding and the procedure for obtaining such an exemption, if applicable.
Additional Withholding Requirements under “FATCA”
Under Sections 1471 through 1474 of the Code (such Sections commonly referred to as “FATCA”), payments of interest (including OID) to a non-U.S. Holder may be subject to 30% withholding tax if the non-U.S. Holder fails to provide the withholding agent with documentation sufficient to show that it is compliant with the FATCA. Generally, such documentation is provided on an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. If interest is subject to 30% tax under FATCA, it will not be subject to the 30% tax described above under “-Taxation of Non-U.S. Holders of Debt Securities-Interest.” Based upon proposed Treasury regulations, which may be relied upon by taxpayers until the final Treasury regulations are issued, the FATCA withholding that was to be effective on January 1, 2019 with respect to payments of the gross proceeds from the disposition of U.S. stock or securities no longer applies. Non-U.S. Holders should consult their tax advisors to determine the applicability of this legislation in light of their individual circumstances, including the possible application of an intergovernmental agreement between the United States and their country of residence that might provide for different rules.