Form 10-K
Table of Contents

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 10-K

 

 

þ Annual report pursuant to the Section 13 or 15(d) of the Securities Exchange Act of 1934

For the fiscal year ended December 31, 2008

or

¨ Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the transition period from              to             

Commission file number: 1-07533

FEDERAL REALTY INVESTMENT TRUST

(Exact Name of Registrant as Specified in its Declaration of Trust)

 

Maryland   52-0782497
(State of Organization)   (IRS Employer Identification No.)
1626 East Jefferson Street, Rockville, Maryland   20852
(Address of Principal Executive Offices)   (Zip Code)

(301) 998-8100

(Registrant’s Telephone Number, Including Area Code)

Securities registered pursuant to Section 12(b) of the Act:

 

Title of Each Class

 

Name Of Each Exchange On Which Registered

Common Shares of Beneficial Interest, $.01 par value per share, with associated Common Share Purchase Rights

  New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act: None

Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. þ Yes    ¨ 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. ¨ Yes    þ No

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. þ Yes    ¨ No

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. þ

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large Accelerated Filer   þ      Accelerated Filer   ¨
Non-Accelerated Filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ¨ Yes    þ No

The aggregate market value of the Registrant’s common shares held by non-affiliates of the Registrant, based upon the closing sales price of the Registrant’s common shares on June 30, 2008 was $4.1 billion.

The number of Registrant’s common shares outstanding on February 24, 2009 was 59,075,627.


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

ANNUAL REPORT ON FORM 10-K

FISCAL YEAR ENDED DECEMBER 31, 2008

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the Registrant’s Proxy Statement to be filed with the Securities and Exchange Commission for Registrant’s 2009 annual meeting of shareholders to be held in May 2009 will be incorporated by reference into Part III hereof.

TABLE OF CONTENTS

 

PART I      
Item 1.    Business    3
Item 1A.    Risk Factors    8
Item 1B.    Unresolved Staff Comments    17
Item 2.    Properties    17
Item 3.    Legal Proceedings    25
Item 4.    Submission of Matters to a Vote of Shareholders    25
PART II      
Item 5.    Market for Our Common Equity and Related Shareholder Matters and Issuer Purchases of Equity Securities    26
Item 6.    Selected Financial Data    28
Item 7.    Management’s Discussion and Analysis of Financial Condition and Results of Operations    30
Item 7A.    Quantitative and Qualitative Disclosures about Market Risk    56
Item 8.    Financial Statements and Supplementary Data    57
Item 9.    Changes In and Disagreements with Accountants on Accounting and Financial Disclosure    57
Item 9A.    Controls and Procedures    57
Item 9B.    Other Information    59
PART III      
Item 10.    Trustees, Executive Officers and Corporate Governance    60
Item 11.    Executive Compensation    60
Item 12.    Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters    60
Item 13.    Certain Relationships and Related Transactions, and Trustee Independence    60
Item 14.    Principal Accountant Fees and Services    60
PART IV      
Item 15.    Exhibits and Financial Statement Schedules    61
SIGNATURES    62

 

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PART I

ITEM 1.    BUSINESS

References to “we,” “us,” “our” or the “Trust” refer to Federal Realty Investment Trust and our business and operations conducted through our directly or indirectly owned subsidiaries.

General

We are an equity real estate investment trust (“REIT”) specializing in the ownership, management, development and redevelopment of high quality retail and mixed-use properties located primarily in densely populated and affluent communities in strategically selected metropolitan markets in the Northeast and Mid-Atlantic regions of the United States, as well as in California. As of December 31, 2008, we owned or had a majority interest in community and neighborhood shopping centers and mixed-use properties which are operated as 84 predominantly retail real estate projects comprising approximately 18.1 million square feet. In total, the real estate projects were 95.0% leased and 94.3% occupied at December 31, 2008. A joint venture in which we own a 30% interest owned seven retail real estate projects totaling approximately 1.0 million square feet as of December 31, 2008. In total, the joint venture properties in which we own an interest were 97.4% leased and occupied at December 31, 2008. We have paid quarterly dividends to our shareholders continuously since our founding in 1962 and have increased our dividends per common share for 41 consecutive years.

We were founded in 1962 as a real estate investment trust under the laws of the District of Columbia and re-formed as a real estate investment trust in the state of Maryland in 1999. Our principal executive offices are located at 1626 East Jefferson Street, Rockville, Maryland 20852 and our telephone number is (301) 998-8100. Our Web site address is www.federalrealty.com. The information contained on our website is not a part of this report.

Business Objectives and Strategies

Our primary business objective is to own, manage, acquire and redevelop a portfolio of high quality retail properties, with the dominant property type being grocery anchored community and neighborhood shopping centers, that will:

 

   

generate higher internal growth than our peers;

 

   

protect investor capital;

 

   

provide increasing cash flow for distributions to shareholders; and

 

   

provide potential for capital appreciation.

Our traditional focus has been and remains on grocery anchored community and neighborhood shopping centers. Late in 1994, recognizing a trend of increased consumer acceptance of retailer expansion to main streets, we expanded our investment strategy to include “street retail” and “mixed-use” properties. The mixed-use properties are typically centered around a retail component but also include office, residential and/or hotel components.

Operating Strategies

Our core operating strategy is to actively manage our properties to maximize rents and maintain high occupancy levels by attracting and retaining a strong and diverse base of tenants and replacing weaker, underperforming tenants with stronger ones. Our properties are generally located in some of the most densely populated and affluent areas of the country. In addition, because of the in-fill nature of our locations, our properties generally face less competition per capita than properties owned by our peers. These strong demographics help our tenants generate higher sales, which has enabled us to maintain high occupancy rates, charge higher rental rates, and maintain steady rent growth, all of which increase the value of our portfolio. Our operating strategies also include:

 

   

increasing rental rates through the renewal of expiring leases or the leasing of space to new tenants at higher rental rates while limiting vacancy and down-time;

 

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maintaining a diversified tenant base, thereby limiting exposure to any one tenant’s financial difficulties;

 

   

monitoring the merchandising mix of our tenant base to achieve a balance of strong national and regional tenants with local specialty tenants;

 

   

minimizing overhead and operating costs;

 

   

monitoring the physical appearance of our properties and the construction quality, condition and design of the buildings and other improvements located on our properties to maximize our ability to attract customers and thereby generate higher rents and occupancy rates;

 

   

developing local and regional market expertise in order to capitalize on market and retailing trends;

 

   

leveraging the contacts and experience of our management team to build and maintain long-term relationships with tenants, investors and financing sources; and

 

   

providing exceptional customer service.

Investing Strategies

Our investment strategy is to deploy capital at risk-adjusted rates of return that exceed our weighted average cost of capital in projects that have potential for future income growth.

Our investments primarily fall into one of the following five categories:

 

   

renovating, expanding, reconfiguring and/or retenanting our existing properties to take advantage of under-utilized land or existing square footage to increase revenue;

 

   

renovating or expanding tenant spaces for tenants capable of producing higher sales, and therefore, paying higher rents, including expanding space available to an existing tenant that is performing well but is operating out of an old or otherwise inefficient store format;

 

   

acquiring community and neighborhood shopping centers, located in densely populated or affluent areas where barriers to entry for further development are high, and that have possibilities for enhancing operating performance through renovation, expansion, reconfiguration and/or retenanting;

 

   

developing the retail portions of mixed-use properties and developing other portions of mixed-use properties we already own; and

 

   

acquiring, in partnership with longer term investors who contribute a substantial portion of the equity needed to acquire those properties, stabilized community and neighborhood shopping centers, located in densely populated or affluent areas where barriers to entry for further development are high.

Investment Criteria

When we evaluate potential redevelopment, retenanting, expansion and acquisition opportunities, we consider such factors as:

 

   

the expected returns in relation to our cost of capital as well as the anticipated risk we will face in achieving the expected returns;

 

   

the anticipated growth rate of operating income generated by the property;

 

   

the tenant mix at the property, tenant sales performance and the creditworthiness of those tenants;

 

   

the geographic area in which the property is located, including the population density and household incomes, as well as the population and income trends in that geographic area;

 

   

competitive conditions in the vicinity of the property, including competition for tenants and the ability to create competing properties through redevelopment, new construction or renovation;

 

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access to and visibility of the property from existing roadways and the potential for new, widened or realigned, roadways within the property’s trade area, which may affect access and commuting and shopping patterns;

 

   

the level and success of our existing investments in the market area;

 

   

the current market value of the land, buildings and other improvements and the potential for increasing those market values; and

 

   

the physical condition of the land, buildings and other improvements, including the structural and environmental condition.

Financing Strategies

Our financing strategies are designed to enable us to maintain a strong balance sheet while retaining sufficient flexibility to fund our operating and investing activities in the most cost-efficient way possible. Our financing strategies include:

 

   

maintaining a prudent level of overall leverage and an appropriate pool of unencumbered properties that is sufficient to support our unsecured borrowings;

 

   

managing our exposure to variable-rate debt;

 

   

maintaining an available line of credit to fund short-term operating needs;

 

   

taking advantage of market opportunities to refinance existing debt, reduce interest costs and manage our debt maturity schedule so that a significant portion of our debt does not mature in any one year;

 

   

selling properties that have limited growth potential or are not a strategic fit within our overall portfolio and redeploying the proceeds to redevelop, renovate, retenant and/or expand our existing properties, acquire new properties or reduce debt; and

 

   

utilizing the most advantageous long-term source of capital available to us to finance redevelopment and acquisition opportunities, which may include:

 

   

the sale of our equity or debt securities through public offerings or private placements,

 

   

the incurrence of indebtedness through secured or unsecured borrowings,

 

   

the issuance of operating units in a new or existing “downREIT partnership” that is controlled and consolidated by us (generally operating units in a “downREIT” partnership are issued in exchange for a tax deferred contribution of property; these units receive the same distributions as our common shares and the holders of these units have the right to exchange their units for cash or the same number of our common shares, at our option), or

 

   

the use of joint venture arrangements.

Employees

At February 24, 2009, we had 276 full-time employees and 133 part-time employees. None of our employees are represented by a collective bargaining unit. We believe that our relationship with our employees is good.

Tax Status

We elected to be taxed as a real estate investment trust for federal income tax purposes beginning with our taxable year ended December 31, 1962. As a REIT, we are generally not subject to federal income tax on REIT taxable income that we distribute to our shareholders. Under the Internal Revenue Code of 1986, as amended, which we refer to as the Code, REITs are subject to numerous organizational and operational requirements,

 

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including the requirement to generally distribute at least 90% of REIT taxable income each year. We will be subject to federal income tax on our taxable income (including any applicable alternative minimum tax) at regular corporate rates if we fail to qualify as a REIT for tax purposes in any taxable year, or to the extent we distribute less than 100% of REIT taxable income. We will also not be permitted to qualify for treatment as a REIT for federal income tax purposes for four years following the year during which qualification is lost. Even if we qualify as a REIT for federal income tax purposes, we may be subject to certain state and local income and franchise taxes and to federal income and excise taxes on our undistributed REIT taxable income.

We have elected to treat certain of our subsidiaries as taxable REIT subsidiaries, which we refer to as a TRS. In general, a TRS may engage in any real estate business and certain non-real estate businesses, subject to certain limitations under the Code. A TRS is subject to federal and state income taxes. In 2008, 2007, and 2006, our TRS incurred approximately $(0.8) million, $1.5 million and $2.4 million, respectively, of income taxes, primarily related to sales of condominiums at Santana Row, sales of three properties in 2007, and our investment in certain restaurant joint ventures at Santana Row.

Governmental Regulations Affecting Our Properties

We and our properties are subject to a variety of federal, state and local environmental, health, safety and similar laws, including:

 

   

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, which we refer to as CERCLA;

 

   

the Resource Conservation & Recovery Act;

 

   

the Federal Clean Water Act;

 

   

the Federal Clean Air Act;

 

   

the Toxic Substances Control Act;

 

   

the Occupational Safety & Health Act; and

 

   

the Americans with Disabilities Act.

The application of these laws to a specific property that we own depends on a variety of property-specific circumstances, including the current and former uses of the property, the building materials used at the property and the physical layout of the property. Under certain environmental laws, principally CERCLA, we, as the owner or operator of properties currently or previously owned, may be required to investigate and clean up certain hazardous or toxic substances, asbestos-containing materials, or petroleum product releases at the property. We may also be held liable to a governmental entity or third parties for property damage and for investigation and clean up costs incurred in connection with the contamination, whether or not we knew of, or were responsible for, such contamination. In addition, some environmental laws create a lien on the contaminated site in favor of the government for damages and costs it incurs in connection with the contamination. As the owner or operator of real estate, we also may be liable under common law to third parties for damages and injuries resulting from environmental contamination emanating from the real estate. Such costs or liabilities could exceed the value of the affected real estate. The presence of contamination or the failure to remediate contamination may adversely affect our ability to sell or lease real estate or to borrow using the real estate as collateral.

Neither existing environmental, health, safety and similar laws nor the costs of our compliance with these laws has had a material adverse effect on our financial condition or results of operations, and management does not believe they will in the future. In addition, we have not incurred, and do not expect to incur, any material costs or liabilities due to environmental contamination at properties we currently own or have owned in the past. However, we cannot predict the impact of new or changed laws or regulations on properties we currently own or may acquire in the future. We have no current plans for substantial capital expenditures with respect to compliance with environmental, health, safety and similar laws and we carry environmental insurance which covers a number of environmental risks for most of our properties.

 

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Competition

Numerous commercial developers and real estate companies compete with us with respect to the leasing and the acquisition of properties. Some of these competitors may possess greater capital resources than we do, although we do not believe that any single competitor or group of competitors in any of the primary markets where our properties are located are dominant in that market. This competition may:

 

   

reduce the number of properties available for acquisition;

 

   

increase the cost of properties available for acquisition;

 

   

interfere with our ability to attract and retain tenants, leading to increased vacancy rates and/or reduced rents; and

 

   

adversely affect our ability to minimize expenses of operation.

Retailers at our properties also face increasing competition from outlet stores, discount shopping clubs, superstores, and other forms of marketing of goods and services, such as direct mail, electronic commerce and telemarketing. This competition could contribute to lease defaults and insolvency of tenants.

Available Information

Copies of our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 are available free of charge through the Investor Information section of our website at www.federalrealty.com as soon as reasonably practicable after we electronically file the material with, or furnish the material to, the Securities and Exchange Commission, or the SEC.

Our Corporate Governance Guidelines, Code of Business Conduct, Code of Ethics applicable to our Chief Executive Officer and senior financial officers, Whistleblower Policy, organizational documents and the charters of our audit committee, compensation committee and nominating and corporate governance committee are all available in the Corporate Governance section of the Investor Information section of our website.

Amendments to the Code of Ethics or Code of Business Conduct or waivers that apply to any of our executive officers or our senior financial officers will be disclosed in that section of our website as well.

You may obtain a printed copy of any of the foregoing materials from us by writing to us at Investor Relations, Federal Realty Investment Trust, 1626 East Jefferson Street, Rockville, Maryland 20852.

 

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ITEM 1A.    RISK FACTORS

This Annual Report on Form 10-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act of 1934 and the Private Securities Litigation Reform Act of 1995. Also, documents that we “incorporate by reference” into this Annual Report on Form 10-K, including documents that we subsequently file with the Securities and Exchange Commission, which we refer to as the SEC, will contain forward-looking statements. When we refer to forward-looking statements or information, sometimes we use words such as “may,” “will,” “could,” “should,” “plans,” “intends,” “expects,” “believes,” “estimates,” “anticipates” and “continues.” In particular, the below risk factors describe forward-looking information. The risk factors describe risks that may affect these statements but are not all-inclusive, particularly with respect to possible future events. Many things can happen that can cause actual results to be different from those we describe. These factors include, but are not limited to the following:

Revenue from our properties may be reduced or limited if the retail operations of our tenants are not successful.

Revenue from our properties depends primarily on the ability of our tenants to pay the full amount of rent and other charges due under their leases on a timely basis. Some of our leases provide for the payment, in addition to base rent, of additional rent above the base amount according to a specified percentage of the gross sales generated by the tenants and generally provide for reimbursement of real estate taxes and expenses of operating the property. The current downturn in the economy may impact the success of our tenants’ retail operations and therefore the amount of rent and expense reimbursements we receive from our tenants. We have seen tenants experiencing declining sales, vacating early, or filing for bankruptcy, as well as seeking rent relief from us as landlord. Any reduction in our tenants’ abilities to pay base rent, percentage rent or other charges, including the filing by any of our tenants for bankruptcy protection, may adversely affect our financial condition and results of operations.

Our net income depends on the success and continued presence of our “anchor” tenants.

Our net income could be adversely affected in the event of a downturn in the business, or the bankruptcy or insolvency, of any anchor store or anchor tenant. Anchor tenants generally occupy large amounts of square footage, pay a significant portion of the total rents at a property and contribute to the success of other tenants by drawing significant numbers of customers to a property. The closing of one or more anchor stores at a property could adversely affect that property and result in lease terminations by, or reductions in rent from, other tenants whose leases may permit termination or rent reduction in those circumstances or whose own operations may suffer as a result. As a result of the current downturn in the economy, we have seen a decrease in the number of tenants available to fill anchor spaces due to the recent bankruptcies. Therefore, tenant demand for certain of our anchor spaces may decrease and as a result, we may in certain categories see an increase in vacancy and/or a decrease in rents for those spaces that could have a negative impact to our net income.

We may experience difficulty or delay in renewing leases or re-leasing space.

We derive most of our revenue directly or indirectly from rent received from our tenants. We are subject to the risks that, upon expiration or termination of leases, whether by their terms, as a result of a tenant bankruptcy or otherwise, leases for space in our properties may not be renewed, space may not be re-leased, or the terms of renewal or re-lease, including the cost of required renovations or concessions to tenants, may be less favorable than current lease terms. As a result, our results of operations and our net income could be reduced.

The amount of debt we have and the restrictions imposed by that debt could adversely affect our business and financial condition.

As of December 31, 2008, we had approximately $1.7 billion of debt outstanding. Of that outstanding debt, approximately $365.3 million was secured by 17 of our properties and approximately $63.5 million represented capital lease obligations on four of our properties. In addition, we own a 30% interest in a joint venture that had

 

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$81.4 million of debt secured by six properties as of December 31, 2008. Approximately $1.4 billion (81%) of our debt as of December 31, 2008, which includes all of our property secured debt and our capital lease obligations, is fixed rate debt. Our joint venture’s debt of $81.4 million is also fixed rate debt. Our organizational documents do not limit the level or amount of debt that we may incur. The amount of our debt outstanding from time to time could have important consequences to our shareholders. For example, it could:

 

   

require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing funds available for operations, property acquisitions, redevelopments and other appropriate business opportunities that may arise in the future;

 

   

limit our ability to make distributions on our outstanding common shares and preferred shares;

 

   

make it difficult to satisfy our debt service requirements;

 

   

require us to dedicate increased amounts of our cash flow from operations to payments on fixed rate debt upon refinancing or on our variable rate, unhedged debt, if interest rates rise;

 

   

limit our flexibility in planning for, or reacting to, changes in our business and the factors that affect the profitability of our business;

 

   

limit our ability to obtain any additional debt or equity financing we may need in the future for working capital, debt refinancing, capital expenditures, acquisitions, redevelopments or other general corporate purposes or to obtain such financing on favorable terms; and/or

 

   

limit our flexibility in conducting our business, which may place us at a disadvantage compared to competitors with less debt or debt with less restrictive terms.

Our ability to make scheduled payments of the principal of, to pay interest on, or to refinance our indebtedness will depend primarily on our future performance, which to a certain extent is subject to economic, financial, competitive and other factors beyond our control. There can be no assurance that our business will continue to generate sufficient cash flow from operations in the future to service our debt or meet our other cash needs. If we are unable to generate this cash flow from our business, we may be required to refinance all or a portion of our existing debt, sell assets or obtain additional financing to meet our debt obligations and other cash needs, including the payment of dividends required to maintain our status as a real estate investment trust. We cannot assure you that any such refinancing, sale of assets or additional financing would be possible on terms that we would find acceptable.

We are obligated to comply with financial and other covenants pursuant to our debt obligations that could restrict our operating activities, and the failure to comply with such covenants could result in defaults that accelerate payment under our debt.

Our credit facility and term loans include financial covenants that may limit our operating activities in the future. We are also required to comply with additional covenants that include, among other things, provisions:

 

   

relating to the maintenance of property securing a mortgage;

 

   

restricting our ability to pledge assets or create liens;

 

   

restricting our ability to incur additional debt;

 

   

restricting our ability to amend or modify existing leases at properties securing a mortgage;

 

   

restricting our ability to enter into transactions with affiliates; and

 

   

restricting our ability to consolidate, merge or sell all or substantially all of our assets.

As of December 31, 2008, we were in compliance with all of our financial covenants. If we were to breach any of our debt covenants, including the covenants listed above, and did not cure the breach within any applicable cure period, our lenders could require us to repay the debt immediately, and, if the debt is secured, could immediately

 

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begin proceedings to take possession of the property securing the loan. Many of our debt arrangements, including our public notes and our credit facility, are cross-defaulted, which means that the lenders under those debt arrangements can put us in default and require immediate repayment of their debt if we breach and fail to cure a covenant under certain of our other debt obligations. As a result, any default under our debt covenants could have an adverse effect on our financial condition, our results of operations, our ability to meet our obligations and the market value of our shares.

Our development activities have inherent risks.

The ground-up development of improvements on real property, as opposed to the renovation and redevelopment of existing improvements, presents substantial risks. We generally do not intend to undertake on our own construction of any new large-scale mixed-use, ground-up development projects; however, we do intend to complete the development and construction of remaining phases of projects we already have started, such as Santana Row in San Jose, California. We may undertake development of these and other projects if it is justifiable on a risk-adjusted return basis. If additional phases of any of our existing projects or if any new projects are not successful, it may adversely affect our financial condition and results of operations.

In addition to the risks associated with real estate investment in general as described elsewhere, the risks associated with our remaining development activities include:

 

   

significant time lag between commencement and stabilization subjects us to greater risks due to fluctuations in the general economy;

 

   

failure or inability to obtain construction or permanent financing on favorable terms;

 

   

expenditure of money and time on projects that may never be completed;

 

   

inability to achieve projected rental rates or anticipated pace of lease-up;

 

   

higher than estimated construction or operating costs, including labor and material costs; and

 

   

possible delay in completion of a project because of a number of factors, including weather, labor disruptions, construction delays or delays in receipt of zoning or other regulatory approvals, acts of terror or other acts of violence, or acts of God (such as fires, earthquakes or floods).

Redevelopments and acquisitions may fail to perform as expected.

Our investment strategy includes the redevelopment and acquisition of community and neighborhood shopping centers in densely populated areas with high average household incomes and significant barriers to adding competitive retail supply. The redevelopment and acquisition of properties entails risks that include the following, any of which could adversely affect our results of operations and our ability to meet our obligations:

 

   

our estimate of the costs to improve, reposition or redevelop a property may prove to be too low, or the time we estimate to complete the improvement, repositioning or redevelopment may be too short. As a result, the property may fail to achieve the returns we have projected, either temporarily or for a longer time;

 

   

we may not be able to identify suitable properties to acquire or may be unable to complete the acquisition of the properties we identify;

 

   

we may not be able to integrate an acquisition into our existing operations successfully;

 

   

properties we redevelop or acquire may fail to achieve the occupancy or rental rates we project, within the time frames we project, at the time we make the decision to invest, which may result in the properties’ failure to achieve the returns we projected;

 

   

our pre-acquisition evaluation of the physical condition of each new investment may not detect certain defects or identify necessary repairs until after the property is acquired, which could significantly increase our total acquisition costs; and

 

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our investigation of a property or building prior to our acquisition, and any representations we may receive from the seller of such building or property, may fail to reveal various liabilities, which could reduce the cash flow from the property or increase our acquisition cost.

Our ability to grow will be limited if we cannot obtain additional capital.

Our growth strategy is focused on the redevelopment of properties we already own and the acquisition of additional properties. We believe that it will be difficult to fund our expected growth with cash from operating activities because, in addition to other requirements, we are generally required to distribute to our shareholders at least 90% of our REIT taxable income each year to continue to qualify as a real estate investment trust, or REIT, for federal income tax purposes. As a result, we must rely primarily upon the availability of debt or equity capital, which may or may not be available on favorable terms or at all. The debt could include mortgage loans from third parties or the sale of debt securities. The current recession and dislocation in the capital markets, however, has resulted in less favorable terms and availability than in recent years for debt financings. Equity capital could include our common shares or preferred shares. We cannot guarantee that additional financing, refinancing or other capital will be available in the amounts we desire or on favorable terms. Our access to debt or equity capital depends on a number of factors, including the market’s perception of our growth potential, our ability to pay dividends, and our current and potential future earnings. Depending on the outcome of these factors as well as the impact of the current recession, we could experience delay or difficulty in implementing our growth strategy on satisfactory terms, or be unable to implement this strategy.

Rising interest rates could adversely affect our cash flow and the market price of our outstanding debt and preferred shares.

Of our approximately $1.7 billion of debt outstanding as of December 31, 2008, approximately $332.9 million bears interest at variable rates and was unhedged. We may borrow additional funds at variable interest rates in the future. Increases in interest rates would increase the interest expense on our variable rate debt and reduce our cash flow, which could adversely affect our ability to service our debt and meet our other obligations and also could reduce the amount we are able to distribute to our shareholders. Although we have in the past and may in the future enter into hedging arrangements or other transactions as to a portion of our variable rate debt to limit our exposure to rising interest rates, the amounts we are required to pay under the variable rate debt to which the hedging or similar arrangements relate may increase in the event of non-performance by the counterparties to any of our hedging arrangements. In addition, an increase in market interest rates may lead purchasers of our debt securities and preferred shares to demand a higher annual yield, which could adversely affect the market price of our outstanding debt securities and preferred shares and the cost and/or timing of refinancing or issuing additional debt securities or preferred shares.

Our performance and value are subject to general risks associated with the real estate industry.

Our economic performance and the value of our real estate assets, and, consequently, the value of our investments, are subject to the risk that if our properties do not generate revenues sufficient to meet our operating expenses, including debt service and capital expenditures, our cash flow and ability to pay distributions to our shareholders will be adversely affected. As a real estate company, we are susceptible to the following real estate industry risks:

 

   

economic downturns in general, or in the areas where our properties are located;

 

   

adverse changes in local real estate market conditions, such as an oversupply or reduction in demand;

 

   

changes in tenant preferences that reduce the attractiveness of our properties to tenants;

 

   

zoning or regulatory restrictions;

 

   

decreases in market rental rates;

 

   

weather conditions that may increase or decrease energy costs and other weather-related expenses;

 

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costs associated with the need to periodically repair, renovate and re-lease space; and

 

   

increases in the cost of adequate maintenance, insurance and other operating costs, including real estate taxes, associated with one or more properties, which may occur even when circumstances such as market factors and competition cause a reduction in revenues from one or more properties, although real estate taxes typically do not increase upon a reduction in such revenues.

Many real estate costs are fixed, even if income from our properties decreases.

Our financial results depend primarily on leasing space in our properties to tenants on terms favorable to us. Costs associated with real estate investment, such as real estate taxes, insurance and maintenance costs, generally are not reduced even when a property is not fully occupied, rental rates decrease, or other circumstances cause a reduction in income from the property. As a result, cash flow from the operations of our properties may be reduced if a tenant does not pay its rent or we are unable to rent our properties on favorable terms. Under those circumstances, we might not be able to enforce our rights as landlord without delays and may incur substantial legal costs. Additionally, new properties that we may acquire or develop may not produce any significant revenue immediately, and the cash flow from existing operations may be insufficient to pay the operating expenses and debt service associated with such new properties until they are fully leased.

Competition may limit our ability to purchase new properties and generate sufficient income from tenants.

Numerous commercial developers and real estate companies compete with us in seeking tenants for our existing properties and properties for acquisition. This competition may:

 

   

reduce properties available for acquisition;

 

   

increase the cost of properties available for acquisition;

 

   

reduce rents payable to us;

 

   

interfere with our ability to attract and retain tenants;

 

   

lead to increased vacancy rates at our properties; and

 

   

adversely affect our ability to minimize expenses of operation.

Retailers at our properties also face increasing competition from outlet stores, discount shopping clubs, and other forms of marketing of goods, such as direct mail, internet marketing and telemarketing. This competition could contribute to lease defaults and insolvency of tenants. If we are unable to continue to attract appropriate retail tenants to our properties, or to purchase new properties in our geographic markets, it could materially affect our ability to generate net income, service our debt and make distributions to our shareholders.

We may be unable to sell properties when appropriate because real estate investments are illiquid.

Real estate investments generally cannot be sold quickly. In addition, there are some limitations under federal income tax laws applicable to real estate and to REITs in particular that may limit our ability to sell our assets. We may not be able to alter our portfolio promptly in response to changes in economic or other conditions including being unable to sell a property at a return we believe is appropriate due to the current economic environment. Our inability to respond quickly to adverse changes in the performance of our investments could have an adverse effect on our ability to meet our obligations and make distributions to our shareholders.

Our insurance coverage on our properties may be inadequate.

We currently carry comprehensive insurance on all of our properties, including insurance for liability, fire, flood, rental loss and acts of terrorism. We also currently carry earthquake insurance on all of our properties in California and environmental insurance on most of our properties. All of these policies contain coverage limitations. We believe these coverages are of the types and amounts customarily obtained for or by an owner of

 

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similar types of real property assets located in the areas where our properties are located. We intend to obtain similar insurance coverage on subsequently acquired properties.

The availability of insurance coverage may decrease and the prices for insurance may increase as a consequence of significant losses incurred by the insurance industry. As a result, we may be unable to renew or duplicate our current insurance coverage in adequate amounts or at reasonable prices. In addition, insurance companies may no longer offer coverage against certain types of losses, such as losses due to terrorist acts and toxic mold, or, if offered, the expense of obtaining these types of insurance may not be justified. We therefore may cease to have insurance coverage against certain types of losses and/or there may be decreases in the limits of insurance available. If an uninsured loss or a loss in excess of our insured limits occurs, we could lose all or a portion of the capital we have invested in a property, as well as the anticipated future revenue from the property, but still remain obligated for any mortgage debt or other financial obligations related to the property. We cannot guarantee 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 disrupt seriously our operations, delay revenue and result in large expenses to repair or rebuild the property. Also, due to inflation, changes in codes and ordinances, environmental considerations and other factors, it may not be feasible to use insurance proceeds to replace a building after it has been damaged or destroyed. Events such as these could adversely affect our results of operations and our ability to meet our obligations, including distributions to our shareholders.

We may have limited flexibility in dealing with our jointly owned investments.

Our organizational documents do not limit the amount of funds that we may invest in properties and assets jointly with other persons or entities and as of December 31, 2008, excluding our joint venture with affiliates of a discretionary fund created and advised by ING Clarion Partners (“Clarion”) and properties owned in a “downREIT” structure, we hold three predominantly retail real estate projects jointly with other persons. We may make additional joint investments in the future. Our existing and future joint investments may subject us to special risks, including the possibility that our partners or co-investors might become bankrupt, that those partners or co-investors might have economic or other business interests or goals which are unlike or incompatible with our business interests or goals, and that those partners or co-investors might be in a position to take action contrary to our suggestions or instructions, or in opposition to our policies or objectives. Although we hold the managing general partnership or membership interest in all of our existing co-investments as of December 31, 2008, we must obtain the consent of the co-investor or meet defined criteria to sell or to finance these properties. Joint ownership gives a third party the opportunity to influence the return we can achieve on some of our investments and may adversely affect our ability to make distributions to our shareholders. We may also be liable for the actions of our co-investors.

In addition, on July 1, 2004, we entered into a joint venture with Clarion for purposes of acquiring properties. Although we are the managing general partner of that entity, we have only a 30% ownership interest in that entity. Our partner’s consent is required to take certain actions with respect to the properties acquired by the venture, and as a result, we may not be able to take actions that we believe are necessary or desirable to protect or increase the value of the property or the property’s income stream. Pursuant to the terms of our partnership, we must obtain our partner’s consent to do the following:

 

   

enter into new anchor tenant leases, modify existing anchor tenant leases or enforce remedies against anchor tenants;

 

   

make certain repairs, renovations or other changes or improvements to properties; and

 

   

sell or finance the property with secured debt.

The terms of our partnership require that certain acquisition opportunities be presented first to the joint venture, which limits our ability to acquire properties for our own account which could, in turn, limit our ability to grow. Our investment in this joint venture is also subject to the risks described above for jointly owned investments. As of December 31, 2008, this joint venture owned seven properties.

 

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Environmental laws and regulations could reduce the value or profitability of our properties.

All real property and the operations conducted on real property are subject to federal, state and local laws, ordinances and regulations relating to hazardous materials, environmental protection and human health and safety. Under various federal, state and local laws, ordinances and regulations, we and our tenants may be required to investigate and clean up certain hazardous or toxic substances released on or in properties we own or operate, and also may be required to pay other costs relating to hazardous or toxic substances. This liability may be imposed without regard to whether we or our tenants knew about the release of these types of substances or were responsible for their release. The presence of contamination or the failure properly to remediate contamination at any of our properties may adversely affect our ability to sell or lease those properties or to borrow funds by using those properties as collateral. The costs or liabilities could exceed the value of the affected real estate. We are not aware of any environmental condition with respect to any of our properties that management believes would have a material adverse effect on our business, assets or results of operations taken as a whole. The uses of any of our properties prior to our acquisition of the property and the building materials used at the property are among the property-specific factors that will affect how the environmental laws are applied to our properties. If we are subject to any material environmental liabilities, the liabilities could adversely affect our results of operations and our ability to meet our obligations.

We cannot predict what other environmental legislation or regulations will be enacted in the future, how existing or future laws or regulations will be administered or interpreted or what environmental conditions may be found to exist on the properties in the future. Compliance with existing and new laws and regulations may require us or our tenants to spend funds to remedy environmental problems. Our tenants, like many of their competitors, have incurred, and will continue to incur, capital and operating expenditures and other costs associated with complying with these laws and regulations, which will adversely affect their potential profitability.

Generally, our tenants must comply with environmental laws and meet remediation requirements. Our leases typically impose obligations on our tenants to indemnify us from any compliance costs we may incur as a result of the environmental conditions on the property caused by the tenant. If a lease does not require compliance or if a tenant fails to or cannot comply, we could be forced to pay these costs. If not addressed, environmental conditions could impair our ability to sell or re-lease the affected properties in the future or result in lower sales prices or rent payments.

The Americans with Disabilities Act of 1990 could require us to take remedial steps with respect to existing or newly acquired properties.

Our existing properties, as well as properties we may acquire, as commercial facilities, are required to comply with Title III of the Americans with Disabilities Act of 1990. Investigation of a property may reveal non-compliance with this Act. The requirements of this Act, or of other federal, state or local laws or regulations, also may change in the future and restrict further renovations of our properties with respect to access for disabled persons. Future compliance with this Act may require expensive changes to the properties.

The revenues generated by our tenants could be negatively affected by various federal, state and local laws to which they are subject.

We and our tenants are subject to a wide range of federal, state and local laws and regulations, such as local licensing requirements, consumer protection laws and state and local fire, life-safety and similar requirements that affect the use of the properties. The leases typically require that each tenant comply with all laws and regulations. Failure to comply could result in fines by governmental authorities, awards of damages to private litigants, or restrictions on the ability to conduct business on such properties. Non-compliance of this sort could reduce our revenues from a tenant, could require us to pay penalties or fines relating to any non-compliance, and could adversely affect our ability to sell or lease a property.

 

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Failure to qualify as a REIT for federal income tax purposes would cause us to be taxed as a corporation, which would substantially reduce funds available for payment of distributions.

We believe that we are organized and qualified as a REIT for federal income tax purposes and currently intend to operate in a manner that will allow us to continue to qualify as a REIT under the Internal Revenue Code of 1986, as amended (the “Code”). However, we cannot assure you that we will remain qualified as such in the future.

Qualification as a REIT involves the application of highly technical and complex Code provisions and applicable income tax regulations that have been issued under the Code. Certain facts and circumstances not entirely within our control may affect our ability to qualify as a REIT. For example, in order to qualify as a REIT, at least 95% of our gross income in any year must be derived from qualifying rents and certain other income. Satisfying this requirement could be difficult, for example, if defaults by tenants were to reduce the amount of income from qualifying rents. As a REIT, we must generally make annual distributions to shareholders of at least 90% of our REIT taxable income. In addition, new legislation, new regulations, new administrative interpretations or new court decisions may significantly change the tax laws with respect to qualification as a REIT or the federal income tax consequences of such qualification.

If we fail to qualify as a REIT:

 

   

we would not be allowed a deduction for distributions to shareholders in computing taxable income;

 

   

we would be subject to federal income tax at regular corporate rates;

 

   

we could be subject to the federal alternative minimum tax;

 

   

unless we are entitled to relief under specific statutory provisions, we could not elect to be taxed as a REIT for four taxable years following the year during which we were disqualified;

 

   

we could be required to pay significant income taxes, which would substantially reduce the funds available for investment or for distribution to our shareholders for each year in which we failed or were not permitted to qualify; and

 

   

we would no longer be required by law to make any distributions to our shareholders.

We may be required to incur additional debt to qualify as a REIT.

As a REIT, we must make generally annual distributions to shareholders of at least 90% of our REIT taxable income. We are subject to income tax on amounts of undistributed REIT taxable income and net capital gain. In addition, we would be subject to a 4% excise tax if we fail to distribute sufficient income to meet a minimum distribution test based on our ordinary income, capital gain and aggregate undistributed income from prior years. We intend to make distributions to shareholders to comply with the Code’s distribution provisions and to avoid federal income and excise tax. We may need to borrow funds to meet our distribution requirements because:

 

   

our income may not be matched by our related expenses at the time the income is considered received for purposes of determining taxable income; and

 

   

non-deductible capital expenditures, creation of reserves, or debt service requirements may reduce available cash but not taxable income.

In these circumstances, we might have to borrow funds on terms we might otherwise find unfavorable and we may have to borrow funds even if our management believes the market conditions make borrowing financially unattractive. Alternatively, if we are unable to borrow funds at acceptable terms, we could choose to pay a portion of our distributions in shares instead of cash.

To maintain our status as a REIT, we limit the amount of shares any one shareholder can own.

The Code imposes certain limitations on the ownership of the stock of a REIT. For example, not more than 50% in value of our outstanding shares of capital stock may be owned, actually or constructively, by five or fewer individuals (as defined in the Code). To protect our REIT status, our declaration of trust prohibits any one

 

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shareholder from owning (actually or constructively) more than 9.8% in value of the outstanding common shares or of any class or series of outstanding preferred shares. The constructive ownership rules are complex. Shares of our capital stock owned, actually or constructively, by a group of related individuals and/or entities may be treated as constructively owned by one of those individuals or entities. As a result, the acquisition of less than 9.8% in value of the outstanding common shares and/or a class or series of preferred shares (or the acquisition of an interest in an entity that owns common shares or preferred shares) by an individual or entity could cause that individual or entity (or another) to own constructively more than 9.8% in value of the outstanding capital stock. If that happened, either the transfer or ownership would be void or the shares would be transferred to a charitable trust and then sold to someone who can own those shares without violating the 9.8% ownership limit.

The Board of Trustees may waive these restrictions on a case-by-case basis. In addition, the Board of Trustees and two-thirds of our shareholders eligible to vote at a shareholder meeting may remove these restrictions if they determine it is no longer in our best interests to attempt to qualify, or to continue to qualify, as a REIT. The 9.8% ownership restrictions may delay, defer or prevent a transaction or a change of our control that might involve a premium price for the common shares or otherwise be in the shareholders’ best interest.

We cannot assure you we will continue to pay dividends at historical rates.

Our ability to continue to pay dividends on our common shares at historical rates or to increase our common share dividend rate, and our ability to pay preferred share dividends and service our debt securities, will depend on a number of factors, including, among others, the following:

 

   

our financial condition and results of future operations;

 

   

the performance of lease terms by tenants;

 

   

the terms of our loan covenants; and

 

   

our ability to acquire, finance, develop or redevelop and lease additional properties at attractive rates.

If we do not maintain or increase the dividend rate on our common shares, it could have an adverse effect on the market price of our common shares and other securities. Any preferred shares we may offer in the future may have a fixed dividend rate that would not increase with any increases in the dividend rate of our common shares. Conversely, payment of dividends on our common shares may be subject to payment in full of the dividends on any preferred shares and payment of interest on any debt securities we may offer.

Certain tax and anti-takeover provisions of our declaration of trust and bylaws may inhibit a change of our control.

Certain provisions contained in our declaration of trust and bylaws and the Maryland General Corporation Law, as applicable to Maryland REITs, may discourage a third party from making a tender offer or acquisition proposal to us. If this were to happen, it could delay, deter or prevent a change in control or the removal of existing management. These provisions also may delay or prevent the shareholders from receiving a premium for their common shares over then-prevailing market prices. These provisions include:

 

   

the REIT ownership limit described above;

 

   

authorization of the issuance of our preferred shares with powers, preferences or rights to be determined by the Board of Trustees;

 

   

a staggered, fixed-size Board of Trustees consisting of three classes of trustees;

 

   

special meetings of our shareholders may be called only by the chairman of the board, the chief executive officer, the president, by one-third of the trustees or by shareholders possessing no less than 25% of all the votes entitled to be cast at the meeting;

 

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the Board of Trustees, without a shareholder vote, can classify or reclassify unissued shares of beneficial interest, including the reclassification of common shares into preferred shares and vice-versa;

 

   

a two-thirds shareholder vote is required to approve some amendments to the declaration of trust;

 

   

advance-notice requirements for proposals to be presented at shareholder meetings; and

 

   

a shareholder rights plan that provides, among other things, that when specified events occur, our shareholders will be entitled to purchase from us a number of common shares equal in value to two times the purchase price, which initially will be equal to $65 per share, subject to certain adjustments.

In addition, if we elect to be governed by it in the future, the Maryland control share acquisition law could delay or prevent a change in control. Under Maryland law, unless a REIT elects not to be subject to this law, “control shares” acquired in a “control share acquisition” have no voting rights except to the extent approved by shareholders by a vote of two-thirds of the votes entitled to be cast on the matter, excluding shares owned by the acquirer and by officers or trustees who are employees of the REIT. “Control shares” are voting shares that would entitle the acquirer to exercise voting power in electing trustees within specified ranges of voting power. A “control share acquisition” means the acquisition of control shares, with some exceptions.

Our bylaws state that the Maryland control share acquisition law will not apply to any acquisition by any person of our common shares. This bylaw provision may be repealed, in whole or in part, at any time, whether before or after an acquisition of control shares, by a vote of a majority of the shareholders entitled to vote, and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.

We may amend or revise our business policies without your approval.

Our Board of Trustees may amend or revise our operating policies without shareholder approval. Our investment, financing and borrowing policies and policies with respect to all other activities, such as growth, debt, capitalization and operations, are determined by the Board of Trustees. The Board of Trustees may amend or revise these policies at any time and from time to time at its discretion. A change in these policies could adversely affect our financial condition and results of operations, and the market price of our securities.

The current business plan adopted by our Board of Trustees focuses on our investment in neighborhood and community shopping centers, principally through redevelopments and acquisitions. If this business plan is not successful, it could have a material adverse effect on our financial condition and results of operations.

Given these uncertainties, readers are cautioned not to place undue reliance on any forward-looking statements that we make, including those in this Annual Report on Form 10-K. Except as may be required by law, we make no promise to update any of the forward-looking statements as a result of new information, future events or otherwise. You should carefully review the above risks and the risk factors.

ITEM 1B.    UNRESOLVED STAFF COMMENTS

None.

ITEM 2.    PROPERTIES

General

As of December 31, 2008, we owned or had a majority ownership interest in community and neighborhood shopping centers and mixed-used properties which are operated as 84 predominantly retail real estate projects comprising approximately 18.1 million square feet. These properties are located primarily in densely populated and affluent communities in strategic metropolitan markets in the Northeast and Mid-Atlantic regions of the

 

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United States, as well as California. No single property accounted for over 10% of our 2008 total revenue. We believe that our properties are adequately covered by commercial general liability, fire, flood, earthquake, terrorism and business interruption insurance provided by reputable companies, with commercially reasonable exclusions, deductibles and limits.

Tenant Diversification

As of December 31, 2008, we had approximately 2,450 leases, with tenants ranging from sole proprietors to major national retailers. No one tenant or affiliated group of tenants accounted for more than 2.6% of our annualized base rent as of December 31, 2008. As a result of our tenant diversification, we believe our exposure to any one recent or future bankruptcy filing in the retail sector has not been and will not be significant, however, multiple filings by a number of retailers could have a significant impact.

Geographic Diversification

Our 84 real estate projects are located in 13 states and the District of Columbia. The following table shows, by region and state within the region, the number of projects, the gross leasable area of commercial space and the percentage of total portfolio gross leasable area of commercial space in each state as of December 31, 2008.

 

Region and State

   Number of
Projects
   Gross Leasable
Area
   Percentage
of Gross
Leasable

Area
 
     (In square feet)  

Maryland

   17    3,708,000    20.5 %

Virginia

   15    3,602,000    19.9 %

California

   12    2,453,000    13.6 %

Pennsylvania(1)

   11    2,405,000    13.3 %

New Jersey

   4    1,385,000    7.6 %

Massachusetts

   7    1,378,000    7.6 %

New York

   5    1,109,000    6.1 %

Illinois

   4    757,000    4.2 %

Connecticut (1)

   2    308,000    1.7 %

Florida

   2    308,000    1.7 %

Michigan

   1    217,000    1.2 %

District of Columbia

   2    168,000    0.9 %

Texas

   1    168,000    0.9 %

North Carolina

   1    153,000    0.8 %
                

Total all regions

   84    18,119,000    100.0 %
                

 

(1) Additionally, we own two participating mortgages totaling approximately $28.3 million secured by multiple buildings in Manayunk, Pennsylvania, and one $5.5 million loan secured by a property in Norwalk, Connecticut.

Leases, Lease Terms and Lease Expirations

Our leases are classified as operating leases and typically are structured to require the monthly payment of minimum rents in advance, subject to periodic increases during the term of the lease, percentage rents based on the level of sales achieved by tenants, and reimbursement of a majority of on-site operating expenses and real estate taxes. These features in our leases generally reduce our exposure to higher costs and allow us to participate in improved tenant sales.

Commercial property leases generally range from 3 to 10 years; however, certain leases, primarily with anchor tenants, may be longer. Many of our leases contain tenant options that enable the tenant to extend the term of the lease at expiration at pre-established rental rates that often include fixed rent increases, consumer price index

 

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adjustments or other market rate adjustments from the prior base rent. Leases on residential units are generally for a period of one year or less and, in 2008, represented approximately 3.7% of total rental income.

The following table sets forth the schedule of lease expirations for our commercial leases in place as of December 31, 2008 for each of the 10 years beginning with 2009 and after 2018 in the aggregate, in both cases, assuming that none of the tenants exercise future renewal options. Annualized base rents reflect in-place contractual rents as of December 31, 2008.

 

Year of Lease Expiration

   Leased
Square
Footage
Expiring
   Percentage of
Leased Square
Footage
Expiring
    Annualized
Base Rent
Represented by
Expiring Leases
   Percentage of Annualized
Base Rent Represented
by Expiring Leases
 

2009

   1,128,000    7 %     25,533,000    7 %

2010

   1,587,000    9 %     34,589,000    9 %

2011

   1,972,000    12 %     46,300,000    13 %

2012

   2,109,000    12 %     46,894,000    13 %

2013

   2,070,000    12 %     47,803,000    13 %

2014

   1,862,000    11 %     38,065,000    10 %

2015

   914,000    5 %     19,900,000    5 %

2016

   800,000    5 %     19,691,000    5 %

2017

   1,056,000    6 %     24,066,000    7 %

2018

   941,000    6 %     17,840,000    5 %

Thereafter

   2,565,000    15 %     49,213,000    13 %
                        

Total

   17,004,000    100 %   $ 369,894,000    100 %
                        

 

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Retail and Residential Properties

The following table sets forth information concerning all real estate projects in which we owned an equity interest, had a leasehold interest, or controlled and are consolidated as of December 31, 2008. Except as otherwise noted, we are the sole owner of our retail real estate projects. Principal tenants are the largest tenants in the project based on square feet leased or are tenants important to a project’s success due to their ability to attract retail customers.

 

    Year
Completed
  Year
Acquired
  Square Feet(1)
/Apartment
Units
  Average Rent
Per Square
Foot
  Percentage
Leased(2)
 

Principal Tenant(s)

California

           

150 Post Street

    San Francisco, CA 94108

  1965   1997   102,000   $39.72   98%  

Brooks Brothers

H & M

Colorado Blvd

    Pasadena, CA(6)

  1922   1996-1998   68,000   $36.63   99%  

Pottery Barn

Banana Republic

Crow Canyon Commons

    San Ramon, CA(3)

  1980-2006   2005-2007   242,000   $19.40   92%  

Save Mart

Loehmann’s

Rite Aid

Escondido Promenade

    Escondido, CA 92029(8)

  1987   1996   222,000   $23.09   95%  

Toys R Us

TJ Maxx

Cost Plus World Market

Fifth Avenue

    San Diego, CA

  1888-1995   1996-1997   51,000   $26.64   100%   Urban Outfitters

Hermosa Avenue

    Hermosa Beach, CA

  1922   1997   22,000   $32.49   100%  

Hollywood Blvd

    Hollywood, CA(10)

  1921-1991   1999   153,000   $21.30   85%  

DSW

L.A. Fitness

Kings Court

    Los Gatos, CA 95032(5)(6)

  1960   1998   79,000   $25.83   99%  

Lunardi’s Supermarket

Longs Drug Store

Old Town Center

    Los Gatos, CA 95030

  1962, 1998   1997   95,000   $30.65   95%  

Borders Books

Gap Kids

Banana Republic

Santana Row—Retail

    San Jose, CA 95128

  2002   1997   563,000   $44.07   98%  

Crate & Barrel

Borders Books

Container Store

Best Buy

CineArts Theatre

Santana Row—Residential

    San Jose, CA 95128

  2003-2006   1997   295 units   N/A   93%  

Third Street Promenade

    Santa Monica, CA

  1888-2000   1996-2000   211,000   $58.70   99%  

Abercrombie & Fitch

J. Crew

Old Navy

Banana Republic

Westgate

    San Jose, CA

  1960-1966   2004   645,000   $13.31   96%  

Safeway

Target

Burlington Coat

Factory

Barnes & Noble

Ross

Connecticut

           

Bristol

    Bristol, CT 06010

  1959   1995   272,000   $12.06   86%  

Stop & Shop

TJ Maxx

Greenwich Avenue

    Greenwich Avenue, CT

  1993   1995   36,000   $53.00   100%   Saks Fifth Avenue

District of Columbia

           

Friendship Center

    Washington, D.C 20015

  1998   2001   119,000   $33.15   66%  

Maggiano’s

Borders Books

Sam’s Park & Shop

    Washington, DC 20008

  1930   1995   49,000   $35.90   94%   Petco

 

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Retail and Residential Properties—continued

 

    Year
Completed
  Year
Acquired
  Square Feet(1)
/Apartment
Units
  Average Rent
Per Square
Foot
  Percentage
Leased(2)
 

Principal Tenant(s)

Florida

           

Courtyard Shops

    Wellington, FL 33414

  1990, 1998   2008   130,000   $18.48   92%   Publix

Del Mar Village

    Boca Raton, FL 33433

  1982, 1994 & 2007   2008   178,000   $18.41   89%  

Winn Dixie

CVS

Illinois

           

Crossroads

    Highland Park, IL 60035

  1959   1993   173,000   $19.24   71%  

Golfsmith

Guitar Center

Finley Square

    Downers Grove, IL 60515

  1974   1995   315,000   $10.05   98%  

Bed, Bath & Beyond

Petsmart

Buy Buy Baby

Garden Market

    Western Springs, IL 60558

  1958   1994   140,000   $12.64   100%  

Dominick’s

Walgreens

North Lake Commons

    Lake Zurich, IL 60047

  1989   1994   129,000   $13.59   92%   Dominick’s

Maryland

           

Bethesda Row

    Bethesda, MD 20814(7)

  1945-1991

2001

  1993-2006

2008

  521,000   $41.13   95%  

Barnes & Noble

Giant Food

Landmark Theater

Bethesda Row Residential

    Bethesda, MD 20814(7)

  2008   1993   180 units   N/A   94%  

Congressional Plaza

    Rockville, MD 20852(4)

  1965   1965   334,000   $29.78   95%  

Buy Buy Baby

Whole Foods

Container Store

Congressional Plaza Residential

    Rockville, MD 20852(4)

  2003   1965   146 units   N/A   97%  

Courthouse Center

    Rockville, MD 20852

  1970   1997   37,000   $19.12   77%  

Federal Plaza

    Rockville, MD 20852

  1970   1989   248,000   $29.15   96%  

Micro Center Ross Dress For Less

TJ Maxx

Gaithersburg Square

    Gaithersburg, MD 20878

  1966   1993   209,000   $22.35   93%  

Bed, Bath & Beyond

Borders Books

Ross Dress For Less

Governor Plaza

    Glen Burnie, MD 21961

  1963   1985   269,000   $15.10   100%  

Office Depot

Bally Total Fitness

Aldi

Laurel Centre

    Laurel, MD 20707

  1956   1986   386,000   $17.54   99%  

Giant Food

Marshalls

Mid-Pike Plaza

    Rockville, MD 20852

  1963   1982/2007   308,000   $22.50   100%  

Bally Total Fitness

Toys R Us

A.C. Moore

Filene’s Basement

Perring Plaza

    Baltimore, MD 21134

  1963   1985   402,000   $12.07   98%  

Burlington Coat Factory Home Depot

Shoppers Food Warehouse

Jo-Ann Stores

Quince Orchard

    Gaithersburg, MD 20877(6)

  1975   1993   248,000   $20.05   85%  

Magruders

Staples

Rockville Town Square

    Rockville, MD 20852

  2006-2007   2006-2007   182,000   $32.09   99%  

CVS

Gold’s Gym

 

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Table of Contents

Retail and Residential Properties—continued

 

    Year
Completed
  Year
Acquired
  Square Feet(1)
/Apartment
Units
  Average Rent
Per Square
Foot
  Percentage
Leased(2)
 

Principal Tenant(s)

Rollingwood Apartments

    Silver Spring, MD 20910

    9 three-story buildings

  1960   1971   282 units   N/A   96%  

THE AVENUE at White Marsh

    Baltimore, MD 21236(12)

  1997   2007   298,000   $20.48   100%  

AMC Loews

Old Navy

Barnes & Noble

A.C. Moore

The Shoppes at Nottingham Square

    Baltimore, MD 21236

  2005-2006   2007   52,000   $36.26   100%  

White Marsh Other

    Baltimore, MD 21236

  1985   2007   49,000   $21.84   100%  

White Marsh Plaza

    Baltimore, MD 21236

  1987   2007   80,000   $18.97   98%   Giant Food

Wildwood

    Bethesda, MD 20814

  1958   1969   85,000   $69.19   100%  

CVS

Balducci’s

Massachusetts

           

Assembly Square

    Somerville, MA 02145

  2005   2005-2008   332,000   $16.25   100%  

Bed, Bath & Beyond Christmas Tree Shops

Kmart

Staples

TJ Maxx

A.C. Moore

Sports Authority

Chelsea Commons

    Chelsea, MA 02150

  1962-1969   2006-2008   222,000   $10.16   91%  

Sav-A-Lot

Home Depot

Dedham

    Dedham, MA 02026

  1959   1993   242,000   $14.69   89%   Star Market

Linden Square

    Wellesley, MA 02481

  1960   2006   214,000   $41.34   83%  

Roche Brothers

Supermarket

CVS

Fitness Club for Women

Wellesley Volkswagen,

Buick

North Dartmouth

    North Dartmouth, MA 02747

  2004   2006   48,000   $13.80   100%   Stop & Shop

Queen Anne Plaza

    Norwell, MA 02061

  1967   1994   149,000   $15.03   100%  

TJ Maxx

Hannaford

Saugus Plaza

    Saugus, MA 01906

  1976   1996   171,000   $10.53   94%  

Kmart

Super Stop & Shop

Michigan

           

Gratiot Plaza

    Roseville, MI 48066

  1964   1973   217,000   $11.28   99%  

Bed, Bath & Beyond

Best Buy

Kroger

DSW

North Carolina

           

Eastgate

    Chapel Hill, NC 27514

  1963   1986   153,000   $19.59   97%   Stein Mart

New Jersey

           

Brick Plaza

    Brick Township, NJ 08723(6)

  1958   1989   409,000   $15.11   100%
 

A&P Supermarket Barnes & Noble AMC Loews

Sports Authority

 

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Table of Contents

Retail and Residential Properties—continued

    Year
Completed
  Year
Acquired
  Square Feet(1)
/Apartment
Units
  Average Rent
Per Square
Foot
  Percentage
Leased(2)
 

Principal Tenant(s)

Ellisburg Circle

    Cherry Hill, NJ 08034

  1959   1992   268,000   $14.51   99%  

Genuardi’s

Buy Buy Baby

Stein Mart

Mercer Mall

    Lawrenceville, NJ 08648(3)

  1975   2003   501,000   $19.80   99%  

Raymour & Flanigan

Bed, Bath & Beyond

DSW

TJ Maxx

Shop Rite

Troy

    Parsippany-Troy, NJ 07054

  1966   1980   207,000   $17.13   86%   Pathmark

New York

           

Forest Hills

    Forest Hills, NY

  1937-1987   1997   46,000   $24.49   100%   Midway Theatre

Fresh Meadows

    Queens, NY 11365

  1949   1997   403,000   $24.41   99%  

AMC Loews Filene’s Basement

Kohl’s Island of Gold

Hauppauge

    Hauppauge, NY 11788

  1963   1998   133,000   $24.05   98%  

Shop Rite

A.C. Moore

Huntington

    Huntington, NY 11746

  1962   1988/2007   279,000   $19.06   100%  

Barnes & Noble

Bed, Bath & Beyond

Buy Buy Baby

Toys R Us

Melville Mall

    Huntington, NY 11747(9)

  1974   2006   248,000   $16.45   100%  

Waldbaum’s

Marshalls

Kohl’s

Pennsylvania

           

Andorra

    Philadelphia, PA 19128

  1953   1988   267,000   $13.58   94%  

Acme Markets Kohl’s

Staples

L.A. Fitness

Bala Cynwyd

    Bala Cynwyd, PA 19004

  1955   1993   280,000   $17.01   100%  

Acme Markets

Lord & Taylor

L.A. Fitness

Feasterville

    Feasterville, PA 19047

  1958   1980   111,000   $13.71   89%   Genuardi’s OfficeMax

Flourtown

    Flourtown, PA 19031

  1957   1980   191,000   $20.69   87%   Genuardi’s

Lancaster

    Lancaster, PA 17601(3)

  1958   1980   107,000   $15.24   94%  

Giant Food

Michaels

Langhorne Square

    Levittown, PA 19056

  1966   1985   216,000   $14.14   97%  

Marshalls

Redner’s Warehouse Market

Lawrence Park

    Broomall, PA 19008

  1972   1980   353,000   $17.83   100%  

Acme Markets

TJ Maxx

CHI

Home Goods

Northeast

    Philadelphia, PA 19114

  1959   1983   285,000   $10.62   92%   Burlington Coat Factory Marshalls

Town Center of New Britain

    New Britain, PA 18901

  1969   2006   124,000   $9.86   87%  

Giant Food

Rite Aid

Willow Grove

    Willow Grove, PA 19090

  1953   1984   216,000   $19.21   99%  

Barnes & Noble Marshalls

Toys R Us

Wynnewood

    Wynnewood, PA 19096

  1948   1996   255,000   $23.88   97%  

Bed, Bath & Beyond Borders Books Genuardi’s

Old Navy

 

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Table of Contents

Retail and Residential Properties—continued

 

    Year
Completed
  Year
Acquired
  Square Feet(1)
/Apartment
Units
  Average Rent
Per Square
Foot
  Percentage
Leased(2)
 

Principal Tenant(s)

Texas

           

Houston Street

    San Antonio, TX

  1890-1935   1998   168,000   $19.68   76%   Hotel Valencia

Virginia

           

Barracks Road

    Charlottesville, VA 22905

  1958   1985   488,000   $20.17   94%  

Bed, Bath & Beyond Harris Teeter

Kroger

Barnes & Noble

Old Navy

Falls Plaza/Falls Plaza—East

    Falls Church, VA 22046

  1960-1962   1967-1972   143,000   $26.74   99%  

Giant Food

CVS

Staples

Idylwood Plaza

    Falls Church, VA 22030

  1991   1994   73,000   $42.80   100%   Whole Foods

Leesburg Plaza

    Leesburg, VA 20176(5)

  1967   1998   236,000   $21.33   99%  

Giant Food

Pier 1 Imports

Office Depot

Petsmart

Loehmann’s Plaza

    Fairfax, VA 22042

  1971   1983   268,000   $25.96   97%  

Bally Total Fitness

Giant Food Loehmann’s

Dress Shop

Mount Vernon/South Valley/

    7770 Richmond Hwy

    Alexandria, VA 22306(5)(6)

  1966-1974   2003-2006   565,000   $15.07   95%  

Shoppers Food Warehouse

Bed, Bath & Beyond Michaels

Home Depot

TJ Maxx

Gold’s Gym

Old Keene Mill

    Springfield, VA 22152

  1968   1976   92,000   $27.31   99%   Whole Foods

Pan Am

    Fairfax, VA 22031

  1979   1993   227,000   $17.76   100%  

Michaels

Micro Center

Safeway

Pentagon Row

    Arlington, VA 22202(6)

  2001-2002   1998   296,000   $33.44   99%   Harris Teeter Bed, Bath & Beyond Cost Plus World Market Bally Total Fitness DSW

Pike 7 Plaza

    Vienna, VA 22180(5)

  1968   1997   164,000   $31.13   100%  

DSW

Staples

TJ Maxx

Shoppers’ World

    Charlottesville, VA 23230

  1975-2001   2007   169,000   $11.43   97%  

Whole Foods

Staples

Shops at Willow Lawn

    Richmond, VA 23230

  1957   1983   476,000   $16.09   87%  

Kroger

Old Navy

Ross

Staples

Tower Shopping Center

    Springfield, VA 22150

  1960   1998   112,000   $25.43   69%   Talbots

Tyson’s Station

    Falls Church, VA 22043

  1954   1978   49,000   $37.89   98%   Trader Joes

Village at Shirlington

    Arlington, VA 22206(11)

  1940   1995   244,000   $30.59   98%  

AMC Loews

Carlyle Grand Café Harris Teeter

             

Total All Regions—Retail

      18,119,000     95%  

Total All Regions—Residential

      903 units     95%  
             

 

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Table of Contents

 

(1) Represents the physical square footage of the commercial portion of the property, which may differ from the gross leasable square footage used to express percentage leased. Some of our properties include office space which is included in this square footage but is not material in total.
(2) Retail percentage leased is expressed as a percentage of rentable commercial square feet occupied or subject to a lease under which rent is currently payable and includes square feet covered by leases for stores not yet opened. Residential percentage leased is expressed as a percentage of units occupied or subject to a lease.
(3) We have a leasehold interest in this property.
(4) We own a 64.1% membership interest in this property.
(5) We own this property in a “downREIT” structure.
(6) All or a portion of this property is owned pursuant to a ground lease.
(7) This property contains nine buildings; six are owned 100% by us, one is subject to a leasehold interest, and two are subject to a ground lease.
(8) We own the controlling interest in this center.
(9) The Trust controls Melville Mall through a 20 year master lease and secondary financing to the owner. The master lease includes a purchase option in 2021 for $5.0 million plus the assumption of the owner’s $25.8 million first mortgage. Because the Trust controls this property and retains substantially all of the economic benefit and risk associated with it, we consolidate this property and its operations.
(10) We own a 90% general partnership interest in these buildings.
(11) A portion of this property is subject to a capital lease obligation.
(12) 50% of the ownership of this property is in a “downREIT” partnership, of which a wholly owned subsidiary of the Trust is the sole general partner, with third party partners holding operating partnership units.

ITEM 3.    LEGAL PROCEEDINGS

In May 2003, First National Mortgage Company filed a complaint against us in the United States District Court for the Northern District of California. The complaint alleged that a one page document entitled “Final Proposal,” which included language that it was subject to approval of formal documentation, constituted a ground lease of a parcel of property located adjacent to our Santana Row property and gave First National Mortgage Company the option to require that we acquire the property at a price determined in accordance with a formula included in the “Final Proposal.” A trial as to liability only was held in June 2006 and a jury rendered a verdict against us. A trial on the issue of damages was held in April 2008; however, the judge has not yet issued a ruling. Reports from our experts and the plaintiff’s experts show potential damages ranging from $600,000 to $24 million. Pending the judge’s ruling, we cannot make a reasonable estimate of potential damages. We will evaluate whether to appeal the jury verdict after the judge issues his ruling on damages taking into account a variety of factors including the amount of damages awarded. If we choose not to appeal or we appeal and are not successful in overturning the jury verdict, we will be liable for damages. Depending on the amount of damages awarded, it is possible, there could be a material adverse impact on our net income in the period in which it becomes both probable that we will have to pay the damages and such damages can be reasonably estimated. In any event, management does not believe this matter will have a material impact on our financial position.

We are also involved in a litigation matter relating to a shopping center in New Jersey where a former tenant has alleged that we and our management agent acted improperly by failing to disclose a condemnation action at the property that was pending when the lease was signed. A trial as to liability only was concluded in April 2007, and in May 2008, a judgment was entered that ruled in our favor on certain legal issues and against us on other legal issues. In December 2008, we reached a settlement with the plaintiff of those matters where the court ruled against us and determined that we are liable. The total settlement was $2.3 million of which we paid $1.15 million and the third party management agent paid $1.15 million. We are currently in the process of settling the amount of the portion of the plaintiff’s legal fees which we are required to pay; we expect the amount to be approximately $1.0 million of which we will pay 50% and the third party management agent will pay 50%. Our share of the total estimated settlement of $1.6 million is included in “general and administrative expense” in the statement of operations.

ITEM 4.    SUBMISSION OF MATTERS TO A VOTE OF SHAREHOLDERS

No matters were submitted to a vote of our shareholders during the fourth quarter of the fiscal year ended December 31, 2008.

 

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Table of Contents

PART II

 

ITEM 5. MARKET FOR OUR COMMON EQUITY AND RELATED SHAREHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Our common shares trade on the New York Stock Exchange under the symbol “FRT.” Listed below are the high and low closing prices of our common shares as reported on the New York Stock Exchange and the dividends declared for each of the periods indicated.

 

     Price Per Share    Dividends
Declared
Per Share
     High    Low   

2008

        

Fourth quarter

   $ 84.96    $ 43.46    $ 0.650

Third quarter

   $ 95.00    $ 61.87    $ 0.650

Second quarter

   $ 85.00    $ 68.25    $ 0.610

First quarter

   $ 83.41    $ 61.60    $ 0.610

2007

        

Fourth quarter

   $ 95.19    $ 78.58    $ 0.610

Third quarter

   $ 88.92    $ 73.82    $ 0.610

Second quarter

   $ 92.59    $ 75.27    $ 0.575

First quarter

   $ 97.12    $ 81.93    $ 0.575

On February 24, 2009, there were 4,115 holders of record of our common shares.

Our ongoing operations generally will not be subject to federal income taxes as long as we maintain our REIT status and distribute to shareholders at least 100% of our REIT taxable income. Under the Code, REITs are subject to numerous organizational and operational requirements, including the requirement to generally distribute at least 90% of REIT taxable income.

Future distributions will be at the discretion of our Board of Trustees and will depend on our actual net income available for common shareholders, financial condition, capital requirements, the annual distribution requirements under the REIT provisions of the Code and such other factors as the Board of Trustees deems relevant. We have paid quarterly dividends to our shareholders continuously since our founding in 1962 and have increased our regular annual dividend rate for 41 consecutive years.

Our total annual dividends paid per common share for 2008 and 2007 were $2.480 per share and $2.335 per share, respectively. The annual dividend amounts are different from dividends as calculated for federal income tax purposes. Distributions to the extent of our current and accumulated earnings and profits for federal income tax purposes generally will be taxable to a shareholder as ordinary dividend income. Distributions in excess of current and accumulated earnings and profits will be treated as a nontaxable reduction of the shareholder’s basis in such shareholder’s shares, to the extent thereof, and thereafter as taxable capital gain. Distributions that are treated as a reduction of the shareholder’s basis in its shares will have the effect of increasing the amount of gain, or reducing the amount of loss, recognized upon the sale of the shareholder’s shares. No assurances can be given regarding what portion, if any, of distributions in 2009 or subsequent years will constitute a return of capital for federal income tax purposes. During a year in which a REIT earns a net long-term capital gain, the REIT can elect under Code Sec. 857(b)(3) to designate a portion of dividends paid to shareholders as capital gain dividends. If this election is made, then the capital gain dividends are taxable to the shareholder as long-term capital gains.

 

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Table of Contents

The following table reflects the income tax status of distributions per share paid to common shareholders:

 

     Year Ended
December 31,
     2008    2007

Ordinary dividend

   $ 2.455    $ 2.174

Ordinary dividend eligible for 15% tax rate

     0.025      0.044

Capital gain

     —        0.117
             
   $ 2.480    $ 2.335
             

Distributions on our 5.417% Series 1 Cumulative Convertible Preferred Shares were paid at the rate of $1.354 per share per annum commencing on the issuance date of March 8, 2007. We do not believe that the preferential rights available to the holders of our preferred shares or the financial covenants contained in our debt agreements had or will have an adverse effect on our ability to pay dividends in the normal course of business to our common shareholders or to distribute amounts necessary to maintain our qualification as a REIT.

Recent Sales of Unregistered Shares

Under the terms of various operating partnership agreements of certain of our affiliated limited partnerships, the interest of limited partners in those limited partnerships may be redeemed, subject to certain conditions, for cash or an equivalent number of our common shares, at our option. During the three months ended December 31, 2008, 3,000 operating partnership units were redeemed for cash. All other equity securities sold by us during 2008 that were not registered have been previously reported in a Quarterly Report on Form 10-Q.

Purchases of Equity Securities by the Issuer and Affiliated Purchasers

No equity securities were purchased by us during 2008. However, 13,961 common shares were placed into treasury as a result of restricted shares forfeited by former employees.

 

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Table of Contents

ITEM 6.    SELECTED FINANCIAL DATA

The following table includes certain financial information on a consolidated historical basis. You should read this section in conjunction with “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Item 8. Financial Statements and Supplementary Data.” Our selected operating data, other data and balance sheet data for the years ended 2004 through 2007 has been reclassified to conform to the presentation for the year ended 2008.

 

    For the Year Ended December 31,  
    2008     2007     2006     2005     2004  
    (In thousands, except per share data and ratios)  

Operating Data:

         

Rental income

  $ 501,964     $ 465,728     $ 414,261     $ 375,655     $ 350,837  

Property operating income(1)

  $ 355,093     $ 336,862     $ 301,513     $ 273,398     $ 245,022  

Income from continuing operations

  $ 115,338     $ 94,009     $ 89,952     $ 83,058     $ 63,566  

Gain on sale of real estate

  $ 12,572     $ 94,768     $ 23,956     $ 30,748     $ 14,052  

Net income

  $ 129,787     $ 195,537     $ 118,712     $ 114,612     $ 84,156  

Net income available for common shareholders

  $ 129,246     $ 195,095     $ 103,514     $ 103,137     $ 72,681  

Net cash provided by operating activities(2)

  $ 228,285     $ 214,209     $ 186,654     $ 174,941     $ 174,148  

Net cash used in investing activities(2)

  $ (207,567 )   $ (151,439 )   $ (317,429 )   $ (152,730 )   $ (157,611 )

Net cash (used in) provided by financing activities(2)

  $ (56,186 )   $ (23,574 )   $ 133,631     $ (44,047 )   $ (21,030 )

Dividends declared on common shares

  $ 148,444     $ 135,102     $ 133,066     $ 124,928     $ 101,969  

Weighted average number of common shares outstanding:

         

Basic

    58,665       56,108       53,469       52,533       51,008  

Diluted

    58,914       56,543       53,962       53,050       51,547  

Earnings per common share, basic:

         

Continuing operations

  $ 1.96     $ 1.67     $ 1.40     $ 1.36     $ 1.02  

Discontinued operations

    0.24       1.81       0.40       0.60       0.40  

Gain on sale of real estate

    —         —         0.14       —         —    
                                       

Total

  $ 2.20     $ 3.48     $ 1.94     $ 1.96     $ 1.42  
                                       

Earnings per common share, diluted:

         

Continuing operations

  $ 1.95     $ 1.65     $ 1.39     $ 1.35     $ 1.01  

Discontinued operations

    0.24       1.80       0.39       0.59       0.40  

Gain on sale of real estate

    —         —         0.14       —         —    
                                       

Total

  $ 2.19     $ 3.45     $ 1.92     $ 1.94     $ 1.41  
                                       

Dividends declared per common share(3)

  $ 2.52     $ 2.37     $ 2.46     $ 2.37     $ 1.99  

Other Data:

         

Funds from operations available to common shareholders(4)(5)(6)

  $ 229,176     $ 206,762     $ 177,113     $ 163,544     $ 148,671  

EBITDA(7)

  $ 339,099     $ 417,560     $ 316,783     $ 292,465     $ 258,143  

Adjusted EBITDA(7)

  $ 326,527     $ 322,792     $ 292,827     $ 261,717     $ 244,091  

Ratio of EBITDA to combined fixed charges and preferred share dividends(7)(8)

    3.2x       3.3x       2.6x       2.7x       2.5x  

Ratio of Adjusted EBITDA to combined fixed charges and preferred share dividends(7)(8)

    3.1x       2.5x       2.4x       2.4x       2.4x  

 

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Table of Contents
     As of December 31,
     2008    2007    2006    2005    2004
     (In thousands, except per share data)

Balance Sheet Data:

              

Real estate, at cost

   $ 3,673,685    $ 3,452,847    $ 3,204,258    $ 2,829,321    $ 2,666,276

Total assets

   $ 3,092,776    $ 2,989,297    $ 2,688,606    $ 2,350,852    $ 2,266,896

Mortgages payable and capital lease obligations

   $ 452,810    $ 450,084    $ 460,398    $ 419,713    $ 410,885

Notes payable

   $ 336,391    $ 210,820    $ 109,024    $ 316,755    $ 325,051

Senior notes and debentures

   $ 956,584    $ 977,556    $ 1,127,508    $ 653,675    $ 568,121

Preferred stock

   $ 9,997    $ 9,997    $ —      $ 135,000    $ 135,000

Shareholders’ equity

   $ 1,114,602    $ 1,114,632    $ 784,078    $ 774,847    $ 790,534

Number of common shares outstanding

     58,986      58,646      55,321      52,891      52,137

 

(1) Property operating income consists of rental income, other property income and mortgage interest income, less rental expenses and real estate taxes. This measure is used internally to evaluate the performance of property operations and we consider it to be a significant measure.
(2) Determined in accordance with Financial Accounting Standards Board (“FASB”) Statement No. 95, Statement of Cash Flows.
(3) The 2006 and 2005 dividends declared per common share each include a special dividend of $0.20 resulting from the sales of condominiums at Santana Row.
(4) Funds from Operations (“FFO”) is a supplemental non-GAAP financial measure of real estate companies’ operating performances. The National Association of Real Estate Investment Trusts (“NAREIT”) defines FFO as follows: net income, computed in accordance with the U.S. GAAP, plus depreciation and amortization of real estate assets and excluding extraordinary items and gains on the sale of real estate. We compute FFO in accordance with the NAREIT definition, and we have historically reported our FFO available for common shareholders in addition to our net income.

We consider FFO available for common shareholders a meaningful, additional measure of operating performance primarily because it excludes the assumption that the value of the real estate assets diminishes predictably over time, as implied by the historical cost convention of GAAP and the recording of depreciation. We use FFO primarily as one of several means of assessing our operating performance in comparison with other REITs. Comparison of our presentation of FFO to similarly titled measures for other REITs may not necessarily be meaningful due to possible differences in the application of the NAREIT definition used by such REITs. Additional information regarding our calculation of FFO is contained in “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

The reconciliation of net income to funds from operations available for common shareholders is as follows:

 

     2008     2007     2006     2005     2004  
     (In thousands)  

Net income

   $ 129,787     $ 195,537     $ 118,712     $ 114,612     $ 84,156  

Gain on sale of real estate

     (12,572 )     (94,768 )     (23,956 )     (30,748 )     (14,052 )

Depreciation and amortization of real estate assets

     101,450       95,565       88,649       82,752       81,649  

Amortization of initial direct costs of leases

     8,771       8,473       7,390       6,972       7,151  

Depreciation of joint venture real estate assets

     1,331       1,241       768       630       187  
                                        

Funds from operations

     228,767       206,048       191,563       174,218       159,091  

Dividends on preferred stock

     (541 )     (442 )     (10,423 )     (11,475 )     (11,475 )

Income attributable to operating partnership units

     950       1,156       748       801       1,055  

Preferred stock redemption costs

     —         —         (4,775 )     —         —    
                                        

Funds from operations available for common shareholders

   $ 229,176     $ 206,762     $ 177,113     $ 163,544     $ 148,671  
                                        

 

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(5) Includes a charge of $1.6 million in 2008 related to the settlement of a litigation matter relating to a shopping center in New Jersey. The matter is further discussed in Note 8 of the financial statements.
(6) Includes $3.1 million of insurance recoveries in 2004 attributable to rental income lost at Santana Row as a result of the August 2002 fire. Insurance recoveries received in 2005 were insignificant.
(7) The SEC has stated that EBITDA is a non-GAAP measure as calculated in the table below. Adjusted EBITDA is a non-GAAP measure that means net income or loss plus net interest expense, income taxes, depreciation and amortization, gain or loss on sale of real estate and impairments of real estate if any. Adjusted EBITDA is presented because we believe that it provides useful information to investors regarding our ability to service debt and because it approximates a key covenant in material notes. Adjusted EBITDA should not be considered an alternative measure of operating results or cash flow from operations as determined in accordance with GAAP. Adjusted EBITDA as presented may not be comparable to other similarly titled measures used by other REITs.

The reconciliation of Adjusted EBITDA to net income for the periods presented is as follows:

 

     2008     2007     2006     2005     2004  
     (In thousands)  

Net income

   $ 129,787     $ 195,537     $ 118,712     $ 114,612     $ 84,156  

Depreciation and amortization

     111,068       105,966       97,879       91,503       90,438  

Interest expense

     99,163       117,394       102,808       88,566       85,058  

Other interest income

     (919 )     (1,337 )     (2,616 )     (2,216 )     (1,509 )
                                        

EBITDA

     339,099       417,560       316,783       292,465       258,143  

Gain on sale of real estate

     (12,572 )     (94,768 )     (23,956 )     (30,748 )     (14,052 )
                                        

Adjusted EBITDA

   $ 326,527     $ 322,792     $ 292,827     $ 261,717     $ 244,091  
                                        
(8) Fixed charges consist of interest on borrowed funds (including capitalized interest), amortization of debt discount and expense and the portion of rent expense representing an interest factor. Preferred share dividends consist of dividends paid on preferred shares and preferred stock redemption costs. Our Series B preferred shares were redeemed in full in November 2006.

 

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 and notes thereto appearing in “Item 8. Financial Statements and Supplementary Data” of this report.

Overview

We are an equity real estate investment trust specializing in the ownership, management, development and redevelopment of high quality retail and mixed-use properties. As of December 31, 2008, we owned or had a majority interest in community and neighborhood shopping centers and mixed-use properties which are operated as 84 predominantly retail real estate projects comprising approximately 18.1 million square feet. These properties are located primarily in densely populated and affluent communities in strategic metropolitan markets in the Mid-Atlantic and Northeast regions of the United States, as well as in California. In total, the real estate projects were 95.0% leased and 94.3% occupied at December 31, 2008. A joint venture in which we own a 30% interest owned seven retail real estate projects totaling approximately 1.0 million square feet as of December 31, 2008. In total, the joint venture properties in which we own an interest were 97.4% leased and occupied at December 31, 2008. We have paid quarterly dividends to our shareholders continuously since our founding in 1962 and have increased our dividends per common share for 41 consecutive years.

Critical Accounting Policies

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America, which we refer to as GAAP, requires management to make estimates and assumptions that in

 

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certain circumstances affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities, and revenues and expenses. These estimates are prepared using management’s best judgment, after considering past and current events and economic conditions. In addition, information relied upon by management in preparing such estimates includes internally generated financial and operating information, external market information, when available, and when necessary, information obtained from consultations with third party experts. Actual results could differ from these estimates. A discussion of possible risks which may affect these estimates is included in “Item 1A. Risk Factors” of this report. Management considers an accounting estimate to be critical if changes in the estimate could have a material impact on our consolidated results of operations or financial condition.

The most significant accounting policies, which involve the use of estimates and assumptions as to future uncertainties and, therefore, may result in actual amounts that differ from estimates, are as follows:

Revenue Recognition and Accounts Receivable

Our leases with tenants are classified as operating leases. Substantially all such leases contain fixed escalations which occur at specified times during the term of the lease. Base rents are recognized on a straight-line basis from when the tenant controls the space through the term of the related lease, net of valuation adjustments, based on management’s assessment of credit, collection and other business risk. Percentage rents, which represent additional rents based upon the level of sales achieved by certain tenants, are recognized at the end of the lease year or earlier if we have determined the required sales level is achieved and the percentage rents are collectible. Real estate tax and other cost reimbursements are recognized on an accrual basis over the periods in which the related expenditures are incurred. For a tenant to terminate its lease agreement prior to the end of the agreed term, we may require that they pay a fee to cancel the lease agreement. Lease termination fees for which the tenant has relinquished control of the space are generally recognized on the termination date. When a lease is terminated early but the tenant continues to control the space under a modified lease agreement, the lease termination fee is generally recognized evenly over the remaining term of the modified lease agreement.

We make estimates of the collectibility of our accounts receivable related to minimum rents, straight-line rents, expense reimbursements and other revenue or income. In some cases, primarily relating to straight-line rents, the collection of these amounts extends beyond one year. Our experience relative to unbilled straight-line rents is that a certain portion of the amounts otherwise recognizable as revenue is never billed to or collected from tenants due to early lease terminations, lease modifications, bankruptcies and other factors. Accordingly, the extended collection period for straight-line rents along with our evaluation of tenant credit risk may result in the nonrecognition of a portion of straight-line rental income until the collection of such income is reasonably assured. If our evaluation of tenant credit risk changes indicating more straight-line revenue is reasonably collectible than previously estimated and realized, the additional straight-line rental income is recognized as revenue. If our evaluation of tenant credit risk changes indicating a portion of realized straight-line rental income is no longer collectible, a reserve and bad debt expense is recorded. At December 31, 2008 and 2007, accounts receivable include approximately $37.2 million and $32.0 million, respectively, related to straight-line rents. These estimates have a direct impact on our net income.

At December 31, 2008 and 2007, our allowance for doubtful accounts was $11.8 million and $7.0 million, respectively. Historically, we have recognized bad debt expense between 0.4% and 1.4% of rental income and it was 1.2% in 2008. An increase in our bad debt expense would decrease our net income. For example, if we had experienced an increase in bad debt of 0.5% of rental income in 2008, our net income would have been reduced by approximately $2.5 million.

Real Estate

The nature of our business as an owner, redeveloper and operator of retail shopping centers and mixed-use properties means that we invest significant amounts of capital. Depreciation and maintenance costs relating to our properties constitute substantial costs for us as well as the industry as a whole. We capitalize real estate

 

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investments and depreciate them in accordance with GAAP and consistent with industry standards based on our best estimates of the assets’ physical and economic useful lives. The cost of our real estate investments, less salvage value, if any, is charged to depreciation expense over the estimated life of the asset using straight-line rates for financial statement purposes. We periodically review the estimated lives of our assets and implement changes, as necessary, to these estimates and, therefore, to our depreciation rates. These reviews take into account the historical retirement and replacement of our assets, the repairs required to maintain the condition of our assets, the cost of redevelopments that may extend the useful lives of our assets and general economic and real estate factors. A newly developed neighborhood shopping center building would typically have an economic useful life of 50 to 60 years, but since many of our assets are not newly developed buildings, estimating the useful lives of assets that are long-lived as well as their salvage value requires significant management judgment. Certain events could occur that would materially affect our estimates and assumptions related to depreciation. Unforeseen competition or changes in customer shopping habits could substantially alter our assumptions regarding our ability to realize the expected return on investment in the property and therefore reduce the economic life of the asset and affect the amount of depreciation expense to be charged against both the current and future revenues. These assessments have a direct impact on our net income. The longer the economic useful life, the lower the depreciation charged to that asset in a fiscal period will be, which in turn will increase our net income. Similarly, having a shorter economic useful life would increase the depreciation for a fiscal period and decrease our net income.

Land, buildings and real estate under development are recorded at cost. We compute depreciation using the straight-line method with useful lives ranging generally from 35 years to a maximum of 50 years on buildings and major improvements. Maintenance and repair costs are charged to operations as incurred. Tenant work and other major improvements, which improve or extend the life of the asset, are capitalized and depreciated over the life of the lease or the estimated useful life of the improvements, whichever is shorter. Minor improvements, furniture and equipment are capitalized and depreciated over useful lives ranging from 3 to 20 years. Certain external and internal costs directly related to the development, redevelopment and leasing of real estate, including applicable salaries and the related direct costs, are capitalized. The capitalized costs associated with developments and redevelopments are depreciated over the life of the improvement. Capitalized costs associated with leases are depreciated or amortized over the base term of the lease. Unamortized leasing costs are charged to operating expense if the applicable tenant vacates before the expiration of its lease. Undepreciated tenant work is charged to operations if the applicable tenant vacates and the tenant work is replaced or has no future value.

When applicable, as lessee, we classify our leases of land and building as operating or capital leases in accordance with the provisions of Statement of Financial Accounting Standard (SFAS) No. 13, “Accounting for Leases.” We are required to use judgment and make estimates in determining the lease term, the estimated economic life of the property and the interest rate to be used in applying the provisions of SFAS No. 13. These estimates determine whether or not the lease meets the qualification of a capital lease and is recorded as an asset.

Interest costs on developments and major redevelopments are capitalized as part of developments and redevelopments not yet placed in service. Capitalization of interest commences when development activities and expenditures begin and end upon completion, which is when the asset is ready for its intended use. Generally, rental property is considered substantially complete and ready for its intended use upon completion of tenant improvements, but no later than one year from completion of major construction activity. We make judgments as to the time period over which to capitalize such costs and these assumptions have a direct impact on net income because capitalized costs are not subtracted in calculating net income. If the time period for capitalizing interest is extended, more interest is capitalized, thereby decreasing interest expense and increasing net income during that period.

Real Estate Acquisitions

Upon acquisition of operating real estate properties, we estimate the fair value of acquired tangible assets (consisting of land, building and improvements), identified intangible assets and liabilities (consisting of above-market and below-market leases, in-place leases and tenant relationships), and assumed debt in accordance with

 

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SFAS No. 141, “Business Combinations.” Based on these estimates, we allocate the purchase price to the applicable assets and liabilities. We utilize methods similar to those used by independent appraisers in estimating the fair value of acquired assets and liabilities. The value allocated to in-place leases is amortized over the related lease term and reflected as rental income in the statement of operations. If a tenant vacates its space prior to contractual termination of its lease, the unamortized balance of any in-place lease value is written off to rental income.

Long-Lived Assets

There are estimates and assumptions made by management in preparing the consolidated financial statements for which the actual results will be determined over long periods of time. This includes the recoverability of long-lived assets, including our properties that have been acquired or developed. Management must evaluate properties for possible impairment of value and, for those properties where impairment may be indicated, make estimates of future cash flows including revenues, operating expenses, required maintenance and development expenditures, market conditions, demand for space by tenants and rental rates over very long periods. Because our properties typically have a very long life, the assumptions used to estimate the future recoverability of book value requires significant management judgment. Actual results could be significantly different from the estimates. These estimates have a direct impact on net income, because recording an impairment charge results in a negative adjustment to net income.

SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” requires the presentation of discontinued operations to include components of an entity comprising operations and cash flows that can be distinguished operationally and for financial reporting purposes from the rest of the entity. As a result, the sale of a property, or the classification of a property as held for sale, typically requires us to reclassify the revenues and expenses associated with the property from continuing operations to “discontinued operations” for all periods presented.

Contingencies

We are sometimes involved in lawsuits, warranty claims, and environmental matters arising in the ordinary course of business. Management makes assumptions and estimates concerning the likelihood and amount of any potential loss relating to these matters.

Any difference between our estimate of a potential loss and the actual outcome would result in an increase or decrease to net income. In addition, we reserve for estimated losses, if any, associated with warranties given to a buyer at the time an asset is sold or other potential liabilities relating to that sale, taking any insurance policies into account. These warranties may extend up to ten years and the calculation of potential liability requires significant judgment. Any changes to our estimated warranty losses would result in an increase or decrease in net income.

Self-Insurance

We are self-insured for general liability costs up to predetermined retained amounts per claim, and we believe that we maintain adequate accruals to cover our retained liability. We currently do not maintain third party stop-loss insurance policies to cover liability costs in excess of predetermined retained amounts. Our accrual for self-insurance liability is determined by management and is based on claims filed and an estimate of claims incurred but not yet reported. Management considers a number of factors, including third-party actuarial analysis and future increases in costs of claims, when making these determinations. If our liability costs differ from these accruals, it will increase or decrease our net income.

 

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New Accounting Pronouncements

In September 2006, the Financial Accounting Standards Board (“FASB”) issued SFAS No. 157, “Fair Value Measurements” (“SFAS No. 157”). SFAS No. 157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and expands disclosures about fair value measurements. SFAS No. 157 applies to accounting pronouncements that require or permit fair value measurements, except for share-based payments under SFAS No. 123(R). We adopted the recognition and disclosure provisions of SFAS No. 157 for financial assets and financial liabilities and for nonfinancial assets and nonfinancial liabilities that are re-measured at least annually effective January 1, 2008; the adoption did not have a material impact on our financial position, results of operations or cash flows. In accordance with the FASB Staff Position (“FSP”) SFAS No. 157-2, “Effective Date of FASB Statement No. 157”, we are required to adopt the provisions of SFAS No. 157 for all other nonfinancial assets and nonfinancial liabilities effective January 1, 2009 and do not expect the adoption to have a material impact on our financial position, results of operations or cash flows.

In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities Including an Amendment of FASB Statement No. 115” (“SFAS No. 159”). This standard permits entities to choose to measure many financial instruments and certain other items at fair value and is effective for the first fiscal year beginning after November 15, 2007. We did not make this fair value election when we adopted SFAS No. 159 effective January 1, 2008, and, therefore, it did not have an impact on our financial position, results of operations, or cash flows.

On December 4, 2007, the FASB issued Statement No. 141 (R), “Business Combinations” (“SFAS No. 141 (R)”). SFAS No. 141 (R) broadens and clarifies the definition of a business which will result in significantly more of our acquisitions being treated as business combinations rather than asset acquisitions. FAS 141 (R) is effective for business combinations for which the acquisition date is on or after January 1, 2009. Early adoption is not permitted and therefore, this will only impact prospective acquisitions with no change to the accounting for acquisitions completed prior to or on December 31, 2008. The new standard requires us to expense as incurred all acquisition related transaction costs which could include broker fees, transfer taxes, legal, accounting, valuation, and other professional and consulting fees; for acquisitions prior to January 1, 2009, these costs were capitalized as part of the acquisition cost. The impact to our financial statements will vary significantly depending on the number of acquisitions, size of the acquisitions, and location of the acquisitions. Based on acquisitions in the last three years, transaction costs for single asset acquisitions typically ranged from $0.1 million to $1.0 million with significantly higher transaction costs for an acquisition of a larger portfolio. The new standard includes several other changes to the accounting for business combinations including requiring contingent consideration to be measured at fair value at acquisition and subsequently remeasured through the income statement if accounted for as a liability as the fair value changes, any adjustments during the purchase price allocation period to be “pushed back” to the acquisition date with prior periods being adjusted for any changes, and the business combination to be accounted for on the acquisition date or the date control is obtained. During 2008, we expensed all acquisition related costs for acquisitions which did not close prior to December 31, 2008.

On December 4, 2007, the FASB issued Statement No. 160, “Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB 51” (“SFAS No. 160”). The new standard significantly changes the accounting and reporting of minority interests in the consolidated financial statements. The new standard requires a non-controlling interest, which is currently referred to as a minority interest, to be recognized as a component of equity rather than included in the mezzanine section of the balance sheet where it is currently presented. The terminology “minority interest” is changed to “noncontrolling interest”. The “minority interest” caption on the statement of operations will be reflected as “net income attributable to the noncontrolling interests” and shown after consolidated net income and will be an adjustment to reconcile to net income. This is a presentation only change for minority interest on both the balance sheet and statement of operations and will have no impact to net income, total liabilities and equity, and earnings per share. The statement also requires the recognition of 100% of the fair values of assets acquired and liabilities assumed in acquisitions of less than 100% controlling interest with subsequent acquisitions of the non-controlling interest recorded as equity transactions. SFAS No. 160 is effective January 1, 2009 and is to be applied prospectively except for the presentation changes to the balance sheet and income

 

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statement which will be applied retrospectively in the 2009 financial statements. Effective January 1, 2009, we will reclassify $32.4 million from the mezzanine section of the balance sheet to shareholders’ equity. The additional impact on the financial statements will vary depending on the level of transactions with entities involving non-controlling interests.

In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement No. 133” (“SFAS No. 161”). SFAS No. 161 requires enhanced disclosures about an entity’s derivative instruments and hedging activities and is effective for fiscal years beginning after November 15, 2008. We do not expect the adoption of SFAS No. 161 to have a material impact on our consolidated financial statements.

In June 2008, the FASB issued FSP EITF No. 03-6-1, “Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities” (“FSP EITF No. 03-6-1”). Under the FSP, unvested share-based payment awards that contain non-forfeitable rights to receive dividends (whether paid or unpaid) are participating securities, and should be included in computation of EPS pursuant to the two-class method. As part of our stock based compensation program, we issue restricted shares which vest over a three to six year period; these shares have non-forfeitable rights to dividends immediately after issuance. We currently exclude the unvested shares from the basic EPS calculation and include them using the treasury stock method in diluted earnings per share. We expect the adoption of FSP EITF No. 03-6-1 to result in a minimal decrease to our basic and diluted earnings per share calculations for all periods presented. The FSP is effective for fiscal years beginning after December 15, 2008 and will require retrospective application to all prior period EPS data presented in the financial statements; early adoption is not permitted.

In November 2008, the EITF issued Issue 08-6, “Equity Method Investment Accounting Considerations” (“EITF 08-6”), which clarified the accounting for certain transactions and impairment considerations involving equity method investments. EITF 08-6 clarified that equity method investments should initially be measured at cost, the issuance of shares by the investee would result in a gain or loss on issuance of shares reflected in the income statement of the equity investor, and that a loss in value of an equity investment which is other than a temporary decline should be recognized in accordance with APB 18, “The Equity Method of Accounting for Investments in Common Stock”. The consensus is effective on a prospective basis beginning on January 1, 2009; we do not expect EITF 08-6 to have a material impact on our financial position, results of operations, or cash flows.

 

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Property Acquisitions and Dispositions

A summary of our significant acquisitions in 2008 and 2007 is as follows:

 

Date

   Property   City, State    Gross Leasable
Area
   Purchase
Price
 
              (In square feet)    (In millions)  

Year ended December 31, 2008

           
May 30    Del Mar Village   Boca Raton, FL    154,000    $ 41.7 (1)
July 11    7015 & 7045 Beracasa Way   Boca Raton, FL    24,000      6.7 (2)
July 16    Chelsea Commons Phase II   Chelsea, MA    26,000      8.0 (3)
September 4    Courtyard Shops   Wellington, FL    127,000      37.9 (4)
September 25 and 30    Bethesda Row   Bethesda, MD    N/A      38.8 (5)
                  
     Total    331,000    $ 133.1  
                  

Year ended December 31, 2007

           
February 28    Crow Canyon Crest   San Ramon, CA    17,000    $ 10.9  
March 8    The White Marsh Portfolio:(6)   White Marsh, MD         189.4  
       THE AVENUE at White Marsh      296,000   
       The Shoppes at Nottingham Square      186,000   
       White Marsh Plaza      79,000   
       White Marsh Other      53,000   
May 30    Shoppers’ World   Charlottesville, VA    169,000      27.2  
October 26    Mid-Pike Plaza   Rockville, MD    —        45.2 (7)
October 26    Huntington Shopping Center   Huntington, NY    —        37.7 (7)
                  
     Total    800,000    $ 310.4  
                  

 

(1) Approximately $1.7 million and $7.4 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively.
(2) Approximately $0.2 million of the net assets acquired were allocated to other assets for “above market leases”. The two buildings acquired are adjacent to our Del Mar Village shopping center.
(3) Approximately $0.2 million and $0.3 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively. This property includes four pad sites that are adjacent to our Chelsea Commons property.
(4) Approximately $0.6 million and $1.0 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively.
(5) On September 25 and 30, 2008, we completed exchange transactions whereby we sold our fee interest in four land parcels that were subject to long-term ground leases with tenants and acquired the fee interest in two land parcels under our Bethesda Row property. Prior to the transactions, the land parcels at Bethesda Row were encumbered by capital lease obligations which were extinguished as part of the transactions. The transactions were completed as 1031 tax deferred exchange transactions and involved net cash paid to us of $23.2 million.
(6) The White Marsh Portfolio was purchased using $11.5 million of cash plus a combination of common stock and convertible preferred stock, downREIT operating partnership units, and the assumption of mortgage loans through a merger with Nottingham Properties, Inc. The acquisition also included ground leases covering 50,000 square feet of office space and a hotel which are not included in gross leasable area.
(7) On October 26, 2007, we completed an exchange transaction whereby we sold our leasehold interests in six New Jersey properties and acquired the fee interests in Mid-Pike Plaza and Huntington Shopping Center. Prior to the transaction, we held leasehold interests in all eight properties. The transaction was completed as a 1031 tax-deferred exchange and involved a cash payment of $17.2 million. All eight properties were previously encumbered by capital lease obligations which were extinguished as part of the transaction.

 

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On November 16, 2007, we purchased the 10% minority interest in three properties located at our Fifth Avenue, Hermosa Avenue and Third Street Promenade projects for $5.7 million. We now own 100% of these properties.

Generally, our acquisitions are initially financed by available cash and borrowings under our revolving credit facility which may be repaid later with funds raised through the issuance of new equity or new long-term debt. On occasion we also finance our acquisitions through the issuance of common stock, preferred stock, or downREIT units as well as through the assumption of mortgages.

A summary of our significant dispositions in 2008 and 2007 is as follows:

 

Sale Date

  

Property

  

Location

  Year
Acquired
or Built
  Gross Leasable
Area
    Sales
Price
   Gain  
                  (In square feet)     (In millions)  

Year ended December 31, 2008

                    
September 25 and 30    Four Land Parcels:(1)          $ 38.8    $ 0.9  
  

The Shoppes at Nottingham Square

   White Marsh, MD   2007   134,000       
  

White Marsh Other

   White Marsh, MD   2007   N/A (2)     
  

White Marsh Other

   White Marsh, MD   2007   3,000       
  

North Dartmouth

   North Dartmouth, MA   2006   135,000       
December 29    Greenwich Avenue    Greenwich, CT   1995   7,000       7.2      5.2 (3)
                            
      Total     279,000     $ 46.0    $ 6.1  
                            

Year ended December 31, 2007

                    
April 5    Bath Shopping Center    Bath, ME   2006   101,000     $ 21.8    $ 0.6 (4)
June 20    Key Road Plaza    Keene, NH   2006   76,000       15.3      0.4 (5)
June 20    Riverside Plaza    Keene, NH   2006   218,000       25.9      0.5 (6)
October 11    Forest Hills    Forest Hills, NY   1997   39,500       33.2      19.1 (7)
October 26    New Jersey Leasehold Interests:            65.7      79.6 (8)
  

Allwood Shopping Center

   Clifton, NJ   1988   50,000       
  

Blue Star Shopping Center

   Watchung, NJ   1988   410,000       
  

Brunswick Shopping Center

   North Brunswick, NJ   1988   303,000       
  

Clifton Shopping Center

   Clifton, NJ   1988   80,000       
  

Hamilton Shopping Center

   Hamilton, NJ   1988   190,000       
  

Rutgers Shopping Center

   Franklin, NJ   1988   267,000       
                            
      Total     1,734,500     $ 161.9    $ 100.2  
                            

 

(1) On September 25 and 30, 2008, we completed exchange transactions whereby we sold our fee interest in four land parcels that were subject to long-term ground leases with tenants and acquired the fee interest in two land parcels under our Bethesda Row property. Three of the land parcels we sold were in White Marsh, MD, and one parcel was in North Dartmouth, MA. The transactions were completed as 1031 tax deferred exchange transactions and involved net cash paid to us of $23.2 million.
(2) This land parcel was subject to a ground lease covering 50,000 square feet of office space not included in our gross leasable area.
(3) We sold one of two retail buildings located in Greenwich, CT.
(4) Gain of $0.6 million is net of $0.3 million in taxes.
(5) Gain of $0.4 million is net of $0.1 million in taxes.
(6) Gain of $0.5 million is net of $0.1 million in taxes.
(7) We sold two of three retail buildings located in Forest Hills, NY.
(8) On October 26, 2007, we completed an exchange transaction whereby we sold our leasehold interests in six New Jersey properties and acquired the fee interests in Mid-Pike Plaza and Huntington Shopping Center. The transaction was completed as a 1031 tax-deferred exchange and involved a cash payment of $17.2 million. All eight properties were previously encumbered by capital lease obligations which were extinguished as part of the transaction.

 

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The proceeds from our dispositions were used to pay down our revolving credit facility and for general corporate purposes.

In 2005 and 2006, warranty reserves for condominium units sold at Santana Row were established to cover potential costs for materials, labor and other items associated with warranty-type claims that may arise within the ten-year statutorily mandated latent construction defect warranty period. In 2006 and 2007, we increased our warranty reserves by $2.5 million and $5.1 million, respectively, net of taxes, related to defective work done by third party contractors while upgrades were made to certain units being prepared for sale. During 2007 and 2008, we evaluated the potentially affected units, and as of December 31, 2008, have completed the inspections and repairs. The extent of the damages encountered in the units and the resulting costs to repair varied considerably amongst the units. As a result, we have adjusted the warranty reserve to reflect the actual costs incurred related to these issues which is approximately $2.4 million, net of $1.5 million of taxes. The change in the reserve of $5.2 million is included in “Discontinued operations—gain on sale of real estate” in 2008. These amounts do not reflect any amounts we may recover in the future from insurance or the contractors responsible for the defective work. Due to the inherent uncertainty related to the recovery from insurance or the contractor, we are unable to estimate an expected recovery; any recovery will be reflected in our financial statements once the amount is determinable, considered probable, and collectible.

Litigation Settlement

During the fourth quarter 2008, we entered into an agreement to settle a litigation matter relating to a shopping center in New Jersey where a former tenant alleged that we and our management agent acted improperly by failing to disclose a condemnation action at the property that was pending when the lease was signed. In June 2008, we entered into an agreement with the management agent that provided a framework for sharing litigation costs and payment of any damages to the plaintiff. The final settlement totaled $2.3 million of which we paid $1.15 million and the third party management agent paid $1.15 million. We are currently in the process of settling the amount of the portion of the plaintiff’s legal fees which we are required to pay; we expect the amount to be approximately $1.0 million of which we will pay 50% and the third party management agent will pay 50%. Our share of the total estimated settlement of $1.6 million is included in “general and administrative expense” in the statement of operations.

2008 Significant Debt and Equity Transactions

On February 21, 2008, we entered into two interest rate swap agreements to fix the variable portion of our $200 million term loan through November 6, 2008. The first swap fixed the variable rate at 2.725% on a notional amount of $100 million and the second swap fixed the variable rate at 2.852% on a notional amount of $100 million for a combined fixed rate of 2.789%. Both swaps were designated and qualified as cash flow hedges and were recorded at fair value until the swaps ended on November 6, 2008.

On July 1, 2008, we repaid the $9.6 million mortgage loan on Leesburg Plaza which had an original maturity date of October 1, 2008. This loan was repaid with funds borrowed on our $300 million revolving credit facility.

On July 15, 2008, we exercised a one-year extension for our $200 million term loan extending the maturity date to November 6, 2009.

On August 15, 2008, one of the holders redeemed $20.8 million of the outstanding $50.0 million balance of our 7.48% debentures. The notice period for additional redemptions has expired. These debentures were repaid with funds borrowed on our $300 million revolving credit facility.

 

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In connection with the acquisition of Courtyard Shops and two land parcels at Bethesda Row, we assumed three mortgage notes as follows:

 

Property

   Fair Value(1)    Maturity Date    Stated Annual
Interest Rate
 
     (In millions)            

Courtyard Shops

   $ 8.1    July 1, 2012    6.87 %

Bethesda Row

   $ 20.0    January 1, 2013    5.37 %

Bethesda Row

   $ 4.4    February 1, 2013    5.05 %

 

(1) The aggregate face amount of the mortgage notes is $32.2 million. However, in accordance with GAAP, these mortgage notes were recorded at their aggregate fair value of $32.5 million.

On September 25 and 30, 2008, we acquired the fee interest in two land parcels under our Bethesda Row property. Prior to the transactions, we had capital lease obligations totaling $11.5 million on the two land parcels which were extinguished as part of the transactions.

On December 31, 2008, we repaid the $1.1 million mortgage loan on one of our properties in White Marsh, MD, on its maturity date. This loan was repaid with funds borrowed on our $300 million revolving credit facility.

Outlook

We seek growth in earnings, funds from operations, and cash flows primarily through a combination of the following:

 

   

growth in our same-center portfolio,

 

   

growth in our portfolio from property redevelopments, and

 

   

expansion of our portfolio through property acquisitions.

Our same-center growth is primarily driven by increases in rental rates on new leases and lease renewals. The infill nature and strong demographics of our properties provide a strategic advantage allowing us to maintain relatively high occupancy and increase rental rates. We seek to maintain a mix of strong national, regional, and local retailers. At December 31, 2008, no single tenant accounted for more than 2.6% of annualized base rent.

We continue to see a positive impact from redevelopment of our shopping centers. In 2009 and 2010, we have redevelopment projects stabilizing with projected costs of approximately $73 million and $16 million, respectively. As redevelopment properties are completed, spaces that were out of service and newly created spaces begin generating revenue. In addition, spaces that were not out of service and that have expiring leases may generate higher revenue because we generally receive higher rent on new leases at improved centers.

We continue to review acquisition opportunities in our primary markets that complement our portfolio and provide long term opportunities. Additionally, in 2008, we acquired two properties in South Florida and continue to evaluate further acquisitions in the South Florida market. Generally, our acquisitions do not initially contribute significantly to earnings growth; however, they provide long term re-leasing growth, redevelopment opportunities, and other strategic opportunities. Any growth from acquisitions is contingent on our ability to find properties that meet our qualitative standards at prices that meet our financial hurdles. Changes in interest rates may affect our success in achieving earnings growth through acquisitions by affecting both the price that must be paid to acquire a property, as well as our ability to economically finance the property acquisition.

The current downturn in the economy may impact the success of our tenants’ retail operations and therefore the amount of rent and expense reimbursements we receive from our tenants. We have seen tenants experiencing declining sales, vacating early, or filing for bankruptcy, as well as seeking rent relief from us as landlord. Any reduction in our tenants’ abilities to pay base rent, percentage rent or other charges, will adversely affect our

 

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financial condition and results of operations. Further, our ability to re-lease vacant spaces may be negatively impacted by the current economic environment. While we believe the locations of our centers and diverse tenant base should decrease the negative impact of the economic environment, we are likely to see an increase in vacancy that could have a negative impact to our revenue. We continue to monitor our tenants’ operating performances as well as trends in the retail industry to evaluate the future impact.

We continue to maintain a strong balance sheet and a conservative capital structure. We seek to maintain a schedule of debt maturities such that the amount of debt maturing in any one year is manageable with respect to our overall borrowing capacity.

At December 31, 2008, the leasable square feet in our shopping centers was 94.3% occupied and 95.0% leased. The leased rate is higher than the occupied rate due to leased spaces that are being redeveloped or improved or that are awaiting permits and, therefore, are not yet ready to be occupied. Our occupancy and leased rates are subject to variability over time due to factors including acquisitions, the timing of the start and stabilization of our redevelopment projects, lease expirations and tenant bankruptcies.

Results of Operations

Throughout this section, we have provided certain information on a “same-center” basis. Information provided on a same-center basis includes the results of properties that we owned and operated for the entirety of both periods being compared except for properties for which significant development, redevelopment or expansion occurred during either of the periods being compared and properties classified as discontinued operations.

YEAR ENDED DECEMBER 31, 2008 COMPARED TO YEAR ENDED DECEMBER 31, 2007

 

                 Change  
     2008     2007     Dollars     %  
     (Dollar amounts in thousands)  

Rental income

   $ 501,964     $ 465,728     $ 36,236     7.8 %

Other property income

     14,013       12,834       1,179     9.2 %

Mortgage interest income

     4,548       4,560       (12 )   -0.3 %
                          

Total property revenues

     520,525       483,122       37,403     7.7 %
                          

Rental expenses

     109,718       99,363       10,355     10.4 %

Real estate taxes

     55,714       46,897       8,817     18.8 %
                          

Total property expenses

     165,432       146,260       19,172     13.1 %
                          

Property operating income

     355,093       336,862       18,231     5.4 %

Other interest income

     916       921       (5 )   -0.5 %

Income from real estate partnership

     1,612       1,395       217     15.6 %

Interest expense

     (99,163 )     (111,365 )     12,202     -11.0 %

General and administrative expense

     (26,732 )     (26,581 )     (151 )   0.6 %

Depreciation and amortization

     (111,022 )     (101,633 )     (9,389 )   9.2 %
                          

Total other, net

     (234,389 )     (237,263 )     2,874     -1.2 %
                          

Income from continuing operations before minority interests

     120,704       99,599       21,105     21.2 %

Minority interests

     (5,366 )     (5,590 )     224     -4.0 %

Discontinued operations—income

     1,877       6,760       (4,883 )   -72.2 %

Discontinued operations—gain on sale of real estate

     12,572       94,768       (82,196 )   -86.7 %
                          

Net income

   $ 129,787     $ 195,537     $ (65,750 )   -33.6 %
                          

 

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Property Revenues

Total property revenue increased $37.4 million, or 7.7%, to $520.5 million in 2008 compared to $483.1 million in 2007. The percentage occupied at our shopping centers decreased to 94.3% at December 31, 2008 compared to 95.4% at December 31, 2007. Changes in the components of property revenue are discussed below.

Rental Income

Rental income consists primarily of minimum rent, cost recoveries from tenants and percentage rent. Rental income increased $36.2 million, or 7.8%, to $502.0 million in 2008 compared to $465.7 million in 2007, due primarily to the following:

 

   

an increase of $14.2 million at same-center properties due to increased rental rates on new and renewal leases, increased cost reimbursements and increased percentage rent,

 

   

an increase of $12.8 million attributable to properties acquired in 2008 and 2007,

 

   

an increase of $11.0 million at redevelopment properties due primarily to increased rental rates on new leases including newly created retail and residential spaces generating revenue and increased cost reimbursements,

partially offset by

 

   

a decrease of $1.7 million related to the demolition of an operating property in 2008 for use in future development.

Other Property Income

Other property income increased $1.2 million, or 9.2%, to $14.0 million in 2008 compared to $12.8 million in 2007. Included in other property income are items which, although recurring, tend to fluctuate more than rental income from period to period, such as lease termination fees. In 2008, the increase is primarily due to an increase in lease termination fees at redevelopment properties partially offset by a decrease in income from our restaurant joint ventures.

Property Expenses

Total property expenses increased $19.2 million, or 13.1%, to $165.4 million in 2008 compared to $146.3 million in 2007. Changes in the components of property expenses are discussed below.

Rental Expenses

Rental expenses increased $10.4 million, or 10.4%, to $109.7 million in 2008 compared to $99.4 million in 2007. This increase is due primarily to the following:

 

   

an increase of $3.7 million in bad debt expense at same-center properties,

 

   

an increase of $2.9 million attributable to properties acquired in 2008 and 2007

 

   

an increase of $2.9 million in repairs and maintenance at same-center and redevelopment properties,

 

   

an increase of $1.0 million in utility expense at same-center and redevelopment properties,

 

   

an increase of $1.0 million in marketing expense at redevelopment properties primarily due to costs related to Arlington East (Bethesda Row) which opened during 2008,

partially offset by

 

   

a decrease of $1.4 million in insurance expense at same-center and redevelopment properties.

 

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As a result of the changes in rental income, rental expenses and other property income described above, rental expenses as a percentage of rental income plus other property income increased to 21.3% in 2008 from 20.8% in 2007.

Real Estate Taxes

Real estate tax expense increased $8.8 million, or 18.8%, to $55.7 million in 2008 compared to $46.9 million in 2007. This increase is due primarily to an increase of $6.7 million related to higher assessments at same-center and redevelopment properties and $2.2 million related to properties acquired in 2008 and 2007.

Property Operating Income

Property operating income increased $18.2 million, or 5.4%, to $355.1 million in 2008 compared to $336.9 million in 2007. As discussed above, this increase is due primarily to the following:

 

   

growth in earnings at redevelopment properties,

 

   

earnings attributable to properties acquired in 2008 and 2007, and

 

   

growth in same-center earnings.

Other

Interest Expense

Interest expense decreased $12.2 million, or 11.0%, to $99.2 million in 2008 compared to $111.4 million in 2007. This decrease is primarily due to the following:

 

   

a decrease of $7.4 million due to a lower overall weighted average borrowing rate,

 

   

a decrease of $4.7 million due to the termination of the Mid-Pike and Huntington capital leases on October 26, 2007, as part of the acquisition of the fee interests in these properties,

 

   

a decrease of $2.7 million due to lower borrowings,

partially offset by

 

   

a decrease of $2.6 million in capitalized interest due primarily to substantial completion of our Arlington East (Bethesda Row) and Linden Square projects.

Gross interest costs were $104.5 million and $119.2 million in 2008 and 2007, respectively. Capitalized interest amounted to $5.3 million and $7.9 million in 2008 and 2007, respectively.

General and Administrative Expense

General and administrative expense increased $0.2 million, or 0.6%, to $26.7 million in 2008 from $26.6 million in 2007. This is due to a $1.6 million litigation settlement in 2008 related to a shopping center in New Jersey partially offset by lower personnel related costs.

Depreciation and Amortization

Depreciation and amortization expense increased $9.4 million, or 9.2%, to $111.0 million in 2008 from $101.6 million in 2007. This increase is due primarily to acquisitions, placing into service newly completed redevelopment projects, and capital improvements at same-center and redevelopment properties.

Discontinued Operations—Income

Income from discontinued operations represents the income of properties that have been disposed, or will be disposed, which is required to be reported separately from results of ongoing operations. The reported income of $1.9 million and $6.8 million in 2008 and 2007, respectively, represents the income for the period during which we owned properties sold in 2008 and 2007.

 

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Discontinued Operations—Gain on Sale of Real Estate

The gain on sale of real estate from discontinued operations of $12.6 million for 2008 consists primarily of a $5.2 million gain on the sale of one property in Connecticut, a $5.2 million decrease in the warranty reserve for condominium units sold at Santana Row in 2005 and 2006, $1.1 million in accrued state tax refunds applied for in 2008 related to the initial sales of the condominium units at Santana Row, and a $0.9 million gain on the sale of four land parcels in Maryland and Massachusetts.

The gain on sale of real estate from discontinued operations of $94.8 million for 2007 is due to a $100.2 million gain primarily related to the sales of Bath Shopping Center, Key Road Plaza, Riverside Plaza, two properties in Forest Hills, and Allwood, Blue Star, Brunswick, Clifton, Hamilton and Rutgers Shopping Centers, partially offset by a $5.1 million increase in the reserve, net of taxes, for the reassessment of damages in 2007 of defective work completed when making upgrades to certain condominiums sold in 2005 and 2006 at Santana Row.

YEAR ENDED DECEMBER 31, 2007 COMPARED TO YEAR ENDED DECEMBER 31, 2006

 

                 Change  
     2007     2006     Dollars     %  
     (Dollar amounts in thousands)  

Rental income

   $ 465,728     $ 414,261     $ 51,467     12.4 %

Other property income

     12,834       7,460       5,374     72.0 %

Mortgage interest income

     4,560       5,095       (535 )   -10.5 %
                          

Total property revenues

     483,122       426,816       56,306     13.2 %
                          

Rental expenses

     99,363       84,164       15,199     18.1 %

Real estate taxes

     46,897       41,139       5,758     14.0 %
                          

Total property expenses

     146,260       125,303       20,957     16.7 %
                          

Property operating income

     336,862       301,513       35,349     11.7 %

Other interest income

     921       2,042       (1,121 )   -54.9 %

Income from real estate partnership

     1,395       656       739     112.7 %

Interest expense

     (111,365 )     (95,234 )     (16,131 )   16.9 %

General and administrative expense

     (26,581 )     (21,921 )     (4,660 )   21.3 %

Depreciation and amortization

     (101,633 )     (92,751 )     (8,882 )   9.6 %
                          

Total other, net

     (237,263 )     (207,208 )     (30,055 )   14.5 %
                          

Income from continuing operations before minority interests

     99,599       94,305       5,294     5.6 %

Minority interests

     (5,590 )     (4,353 )     (1,237 )   28.4 %

Discontinued operations—income

     6,760       4,804       1,956     40.7 %

Discontinued operations—gain on sale of real estate

     94,768       16,515       78,253     473.8 %

Gain on sale of real estate

     —         7,441       (7,441 )   -100.0 %
                          

Net income

   $ 195,537     $ 118,712     $ 76,825     64.7 %
                          

Property Revenues

Total property revenues increased $56.3 million, or 13.2%, to $483.1 million in 2007 compared to $426.8 million in 2006. The percentage occupied at our shopping centers remained unchanged at 95.4% at December 31, 2007 and 2006. Changes in the components of property revenue are discussed below.

 

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Rental income

Rental income consists primarily of minimum rent, cost recoveries from tenants, and percentage rent. Rental income increased $51.5 million, or 12.4%, to $465.7 million in 2007 compared to $414.3 million in 2006. This increase is due primarily to the following:

 

   

an increase of $30.0 million attributable to the properties acquired in 2007 and 2006 and the completion of the power-center at Assembly Square Mall,

 

   

an increase of $11.6 million at same-center properties due to increased rental rates on new leases and increased cost reimbursements,

 

   

an increase of $8.9 million at redevelopment properties due primarily to increased occupancy, increased rental rates on new leases and increased cost reimbursements,

 

   

an increase of $2.2 million at Santana Row residential due primarily to leasing of residential units,

partially offset by

 

   

a decrease of $0.8 million related to the sale of Greenlawn Plaza to our unconsolidated real estate partnership in June 2006.

Other Property Income

Other property income increased $5.4 million, or 72.0%, to $12.8 million in 2007 compared to $7.5 million in 2006. Included in other property income are items which, although recurring, tend to fluctuate more than rental income from period to period, such as lease termination fees. In 2007, the increase is primarily due to an increase in lease and other termination fees at our same-center properties, an increase in marketing income and an increase in management fee income.

Property Expenses

Total property operating expenses increased $21.0 million, or 16.7%, to $146.3 million in 2007 compared to $125.3 million in 2006. Changes in the components of property expenses are discussed below.

Rental Expenses

Rental expenses increased $15.2 million, or 18.1%, to $99.4 million in 2007 compared to $84.2 million in 2006. This increase is primarily due to the following:

 

   

an increase of $5.7 million in expenses attributable to properties acquired in 2007 and 2006 and the completion of the power-center at Assembly Square Mall,

 

   

an increase of $4.6 million in repairs and maintenance expense at same-center and redevelopment properties due primarily to higher snow removal and maintenance costs,

 

   

an increase of $1.3 million in bad debt expense at same-center and redevelopment properties primarily due to amounts recovered in 2006 of receivables previously deemed uncollectible,

 

   

an increase of $1.1 million in utilities at same-center and redevelopment properties,

 

   

an increase of $0.8 million in insurance at same-center and redevelopment properties, and

 

   

an increase of $0.7 million at Santana Row residential.

As a result of these changes in rental expenses, rental income and other property income, rental expense as a percentage of rental income plus other property income increased to 20.8% in 2007 from 20.0% in 2006.

 

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Real Estate Taxes

Real estate tax expense increased $5.8 million, or 14.0%, to $46.9 million in 2007 compared to $41.1 million in 2006. This increase is due primarily to increased taxes of $3.5 million related to properties acquired in 2007 and 2006 and Assembly Square Mall and $2.3 million related to higher assessments and at our same-center, redevelopment and Santana Row residential properties.

Property Operating Income

Property operating income increased $35.3 million, or 11.7%, to $336.9 million in 2007 compared to $301.5 million in 2006. As discussed above, this increase is due primarily to the following:

 

   

earnings attributable to properties acquired in 2007 and 2006 and the completion of the power-center as Assembly Square Mall,

 

   

growth in same-center earnings,

 

   

growth in earnings at redevelopment properties, and

 

   

growth in earnings at Santana Row residential.

Other

Interest Expense

Interest expense increased $16.1 million, or 16.9%, to $111.4 million in 2007 compared to $95.2 million in 2006. This increase is due primarily to the following:

 

   

an increase of $23.4 million due to higher borrowings to finance our acquisitions,

partially offset by

 

   

an increase of $3.8 million in capitalized interest,

 

   

a decrease of $1.8 million due to a lower overall weighted average borrowing rate, and

 

   

a decrease of $1.4 million due to the termination of the Mid-Pike and Huntington capital leases on October 26, 2007, as a part of the acquisition of the fee interests in these properties.

Gross interest costs were $119.2 million and $99.3 million in 2007 and 2006, respectively. Capitalized interest amounted to $7.9 million and $4.1 million in 2007 and 2006, respectively. Capitalized interest increased due primarily to redevelopment at Linden Square, which was acquired in 2006, and redevelopment at Arlington East (Bethesda Row).

General and Administrative Expense

General and administrative expenses increased by $4.7 million, or 21.3%, to $26.6 million in 2007 compared to $21.9 million in 2006. This is primarily due to an increase in personnel, primarily in our asset management department, and increased share-based and other compensation expense. Approximately $1.0 million of the increase is due to additional stock and other compensation expense related to the departure of Larry Finger, our former Chief Financial Officer, effective December 31, 2007.

Depreciation and Amortization

Depreciation and amortization expense increased $8.9 million, or 9.6%, to $101.6 million in 2007 compared to $92.8 million in 2006. This increase is due primarily to acquisitions and capital improvements at same-center and redevelopment properties.

Minority Interests

Income to minority partners increased $1.2 million, or 28.4%, to $5.6 million in 2007 from $4.4 million in 2006. This increase is due primarily to an increase in earnings at properties held in non-wholly owned partnerships and an increase in operating units issued to acquire the White Marsh portfolio in March 2007.

 

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Discontinued Operations—Income

Income from discontinued operations represents the income of properties that have been disposed or will be disposed, which is required to be reported separately from results of ongoing operations. The reported income of $6.8 million and $4.8 million for 2007 and 2006, respectively, represents the income for the period during which we owned properties sold in 2008, 2007 and 2006.

Discontinued Operations—Gain on Sale of Real Estate

The gain on sale of real estate from discontinued operations of $94.8 million for the year ended December 31, 2007 is due to a $100.2 million gain primarily related to the sales of Bath Shopping Center, Key Road Plaza, Riverside Plaza, two properties in Forest Hills, and Allwood, Blue Star, Brunswick, Clifton, Hamilton and Rutgers Shopping Centers, partially offset by a $5.1 million increase in the reserve, net of taxes, for the reassessment of damages in 2007 of defective work completed when making upgrades to certain condominiums sold in 2005 and 2006 at Santana Row. The gain on sale of real estate from discontinued operations of $16.5 million for the year ended December 31, 2006, was due to the sale of condominiums at Santana Row.

Gain on Sale of Real Estate

The gain on sale of real estate includes properties in which we maintained continuing involvement through our unconsolidated real estate partnership. No properties in which we maintained continuing involvement were sold in 2007. One property, Greenlawn Plaza, was sold in 2006 to our unconsolidated real estate partnership, which resulted in a $7.4 million gain.

Segment Results

The following table provides selected key segment data by geographic region for 2008, 2007 and 2006. While we believe we have only one reportable segment as defined by SFAS No. 131, we have provided additional information by geographic region as presented below. The results of properties classified as discontinued operations have been excluded from rental income, total revenue, and property operating income in the following table.

 

     2008     2007     2006  
     (Dollars and square feet in thousands)  

East

      

Rental income

   $ 389,569     $ 360,928     $ 317,458  

Total revenue

   $ 404,440     $ 373,087     $ 325,209  

Property operating income(1)

   $ 281,479     $ 265,291     $ 236,326  

Property operating income as a percent of total revenue

     69.6 %     71.1 %     72.7 %

Gross leasable square feet

     15,498       15,568       16,195  

West

      

Rental income

   $ 112,395     $ 104,800     $ 96,803  

Total revenue

   $ 116,085     $ 110,035     $ 101,607  

Property operating income(1)

   $ 73,614     $ 71,571     $ 65,187  

Property operating income as a percent of total revenue

     63.4 %     65.0 %     64.2 %

Gross leasable square feet

     2,621       2,627       2,605  

 

(1) Property operating income consists of rental income, other property income and mortgage interest income, less rental expenses and real estate taxes. This measure is used internally to evaluate the performance of our regional operations, and we consider it to be a significant measure.

East

Rental income for the East region increased $28.6 million, or 7.9%, to $389.6 million in 2008 compared to $360.9 million in 2007 due primarily to the following:

 

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an increase of $12.6 million attributable to properties acquired in 2008 and 2007,

 

   

an increase of $10.5 million at redevelopment properties due primarily to increased rental rates on new leases including newly created retail and residential spaces generating revenue and increased cost reimbursements,

 

   

an increase of $7.2 million at same-center properties due to increased rental rates on new and renewal leases and increased cost reimbursements,

partially offset by

 

   

a decrease of $1.7 million related to the demolition of an operating property in 2008 for use in future development.

Property operating income for the East region increased $16.2 million in 2008 due primarily to the increase in rental income discussed above and an increase in lease termination fees. These increases in income were partially offset by an $8.2 million increase in rental expense, and a $6.9 million increase in real estate taxes due primarily to the acquisition of properties and higher assessments on our same-center and redevelopment properties. As a result of these changes, the ratio of property operating income to total revenue for the East region decreased to 69.6% in 2008 from 71.1% in 2007.

Rental income for the East region increased $43.5 million, or 13.7%, to $360.9 million in 2007 compared to $317.5 million in 2006 due primarily to the following:

 

   

an increase of $29.3 million attributable to properties acquired in 2007 and 2006, and the completion of the power-center at Assembly Square Mall,

 

   

an increase of $9.0 million at same-center properties due to increased rental rates on new leases and increased cost reimbursements,

 

   

an increase of $6.4 million at redevelopment properties,

partially offset by

 

   

a decrease of $0.8 million related to the sale of Greenlawn Plaza to our unconsolidated real estate partnership in June 2006.

Property operating income for the East region increased $29.0 million in 2007 due primarily to the increase in rental income discussed above and an increase in lease and other termination fees. These increases in income were partially offset by a $13.7 million increase in rental expense primarily due to the acquisition of properties, increased snow removal costs, repairs and maintenance costs, insurance costs and additional legal costs and a $5.2 million increase in real estate taxes due primarily to the acquisition of properties and higher assessments at our same-center and redevelopment properties. As a result of these changes, the ratio of property operating income to total revenue for the East region decreased to 71.1% in 2007 from 72.7% in 2006.

The gross leasable area in the East region decreased 0.7 million square feet from 2006 to 2008 due primarily to the sale of six properties in New Jersey in October 2007 and the sale of four land parcels in September 2008, the results of which are included in discontinued operations. The decrease was partially offset by 2007 and 2008 acquisitions.

West

Rental income for the West region increased $7.6 million, or 7.2%, to $112.4 million in 2008 from $104.8 million in 2007 due primarily to the following:

 

   

an increase of $6.9 million at same-center properties due primarily to increased residential rental rates at Santana Row, increased rental rates on new and renewal retail leases, and increased percentage rent,

 

   

an increase of $0.5 million at redevelopment properties, and

 

   

an increase of $0.2 million attributable to a property acquired in 2007.

 

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Property operating income for the West region increased $2.0 million in 2008 due primarily to the increase in rental income discussed above, partially offset by a $2.1 million increase in rental expense and $1.9 million real estate taxes. As a result of these changes, the ratio of property operating income to total revenue for the West region decreased to 63.4% in 2008 from 65.0% in 2007.

Rental income for the West region increased $8.0 million, or 8.3%, to $104.8 million in 2007 from $96.8 million in 2006 due primarily to the following:

 

   

an increase of $4.0 million at Santana Row due to leasing residential units throughout 2006, increased retail occupancy, and increased rental rates on new retail leases,

 

   

an increase of $2.5 million at a redevelopment project,

 

   

an increase of $0.8 million at same-center properties, and

 

   

an increase of $0.7 million attributable to the acquisition of a property in 2007.

Property operating income for the West region increased $6.4 million in 2007 due primarily to the increase in rental income discussed above, partially offset by a $2.0 million increase in rental expense and real estate taxes primarily at Santana Row and a $0.4 million decrease in mortgage interest income due to an amendment of our $17.7 million mortgage note receivable secured by the hotel at our Santana Row project, which was executed on August 14, 2006, and decreased the interest rate from 14% per annum to 9% per annum. The ratio of property operating income to total revenue for the West region increased to 65.0% in 2007 from 64.2% in 2006.

Liquidity and Capital Resources

Due to the nature of our business and strategy, we generally generate significant amounts of cash from operations. The cash generated from operations is primarily paid to our common and preferred shareholders in the form of dividends. As a REIT, we must generally make annual distributions to shareholders of at least 90% of our REIT taxable income.

Our short-term liquidity requirements consist primarily of obligations under our capital and operating leases, normal recurring operating expenses, regular debt service requirements (including debt service relating to additional or replacement debt, as well as scheduled debt maturities), recurring expenditures, non-recurring expenditures (such as tenant improvements and redevelopments) and dividends to common and preferred shareholders. Our long-term capital requirements consist primarily of maturities under our long-term debt agreements, development and redevelopment costs and potential acquisitions.

We intend to operate with and maintain a conservative capital structure that will allow us to maintain strong debt service coverage and fixed-charge coverage ratios as part of our commitment to investment-grade debt ratings. In the short and long term, we may seek to obtain funds through the issuance of additional equity, unsecured and/or secured debt financings, joint venture relationships relating to existing properties or new acquisitions, and property dispositions that are consistent with this conservative structure.

We have approximately $380 million of debt maturing in 2009, of which $200 million matures in November 2009 and $175 million matures in December 2009. While the maturities do not occur until the end of 2009, we have commenced negotiations under several different alternatives to refinance the debt including a new term loan and encumbering additional properties with mortgage financing. We have identified assets that can provide up to $350 million of secured financing proceeds. The current recession and dislocation in the capital markets, however, has resulted in less favorable interest rates for debt financings. Notwithstanding adverse market conditions, we currently believe that cash flows from operations, secured and unsecured refinancing opportunities, and our revolving credit facility will be sufficient to finance our operations and fund our capital expenditures. Alternatively, if we are unable to access the secured and unsecured debt markets at acceptable terms, we may choose to issue common equity to meet our capital needs or pay a portion of our distributions in shares instead of cash. As we expect to address the fourth quarter 2009 maturities several months in advance, we expect to incur additional interest expense due to higher interest rates on such debt and due to a temporary increase in our debt outstanding until we can use the proceeds to retire maturing debt.

 

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Our overall capital requirements in 2009 will depend not only on refinancing of the debt maturities, but also upon acquisition opportunities, the level of improvements and redevelopments on existing properties and the timing and cost of development of future phases of existing properties. During 2008, 2007, and 2006, we expended approximately $104.2 million, $111.6 million, and $95.7 million, respectively, for development and redevelopment capital expenditures and approximately $33.8 million, $25.8 million, and $24.0 million, respectively for other capital expenditures. While the amount of future expenditures will depend on numerous factors, we expect to incur similar levels of capital expenditures in 2009 which will be funded on a short-term basis with the revolving credit facility and on a long-term basis, with longer term debt or equity. Although there is no intent at this time, if market conditions continue to deteriorate, we may also delay the timing of certain development and redevelopment projects as well as limit future acquisitions, reduce our operating expenditures, or re-evaluate our dividend policy.

In addition to the adverse conditions in the capital markets which could affect our ability to access those markets, the following factors could affect our ability to meet our liquidity requirements:

 

   

restrictions in our debt instruments or preferred stock may limit us from incurring debt or issuing equity at all, or on acceptable terms under then-prevailing market conditions; and

 

   

we may be unable to service additional or replacement debt due to increases in interest rates or a decline in our operating performance.

Cash and cash equivalents were $15.2 million and $50.7 million at December 31, 2008 and 2007, respectively, however, cash and cash equivalents are not a good indicator of our liquidity. We have a $300 million unsecured revolving credit facility that matures July 27, 2010, subject to a one-year extension at our option, of which $123.5 million was outstanding at December 31, 2008. During 2008, the maximum amount of borrowings outstanding under our revolving credit facility was $159.0 million and the weighted average amount of borrowings outstanding was $61.4 million. We expect to continue to utilize our credit facility to fund short-term operating needs, including funding capital expenditures. To date, lenders have funded all of our draw requests under our credit facility and we expect our lenders will continue to fund those draws.

Summary of Cash Flows for 2008 and 2007

 

     Year Ended December 31,  
     2008     2007  
     (In thousands)  

Cash provided by operating activities

   $ 228,285     $ 214,209  

Cash used in investing activities

     (207,567 )     (151,439 )

Cash used in financing activities

     (56,186 )     (23,574 )
                

(Decrease) increase in cash and cash equivalents

     (35,468 )     39,196  

Cash and cash equivalents, beginning of year

     50,691       11,495  
                

Cash and cash equivalents, end of year

   $ 15,223     $ 50,691  
                

Net cash provided by operating activities increased by $14.1 million to $228.3 million during the year ended December 31, 2008 from $214.2 million during the year ended December 31, 2007. The increase was primarily attributable to:

 

   

$25.0 million higher net income before gain on sale of real estate, depreciation and amortization, minority interest and other non-cash items,

partially offset by

 

   

$10.9 million decrease in cash provided for working capital due primarily to lower accounts payable and accrued expense balances and lower prepaid rent balances.

 

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Net cash used in investing activities increased approximately $56.1 million to $207.6 million during the year ended December 31, 2008 from $151.4 million during the year ended December 31, 2007. The increase was due primarily to:

 

   

$39.1 million decrease in proceeds from the sale of real estate,

 

   

$30.1 million increase in acquisitions of real estate, and

 

   

$5.9 million increase in cash used for net issuance of mortgage and other notes receivables primarily related to the funding of a $5.5 million secured loan in 2008,

partially offset by

 

   

$20.4 million decrease in contributions to our unconsolidated real estate partnership due to two acquisitions by the real estate partnership in 2007 and no capital contributions in 2008.

Net cash used in financing activities increased approximately $32.6 million to $56.2 million during the year ended December 31, 2008 from $23.6 million during the year ended December 31, 2007. The increase was due primarily to:

 

   

$199.5 million in net proceeds from the issuance of our $200 million term loan in 2007 and no issuances of notes payable in 2008,

 

   

$159.3 million decrease in net proceeds from the issuance of common shares,

 

   

$15.0 million increase in dividends paid to shareholders due to an increase in the dividend rate and increased number of shares outstanding, and

 

   

$10.9 million increase in repayment of mortgages, capital leases and notes payable,

partially offset by

 

   

$221.5 million increase in net borrowings on our revolving credit facility, and

 

   

$129.2 million decrease in repayment of senior notes primarily due to the repayment of our $150 million 6.125% senior notes in November 2007.

Off-Balance Sheet Arrangements

We have a joint venture arrangement (“the Partnership”) with affiliates of a discretionary fund created and advised by ING Clarion Partners (“Clarion”). We own 30% of the equity in the Partnership, and Clarion owns 70%. As of December 31, 2008, the Partnership owned seven retail real estate projects. We are the manager of the Partnership and its properties, earning fees for acquisitions, management, leasing, and financing. We also have the opportunity to receive performance-based earnings through our Partnership interest. We account for our interest in the partnership using the equity method and our investment in the Partnership was $29.3 million and $29.6 million at December 31, 2008 and 2007, respectively. In total, at December 31, 2008, the Partnership had $81.4 million of mortgage notes outstanding.

Other than the joint venture described above and items disclosed in the Contractual Commitments Table below, we have no off-balance sheet arrangements as of December 31, 2008 that are reasonably likely to have a current or future material effect on our financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.

 

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Contractual Commitments

The following table provides a summary of our fixed, noncancelable obligations as of December 31, 2008:

 

     Commitments Due by Period
     Total    Less Than
1 Year
   1-3 Years    3-5 Years    After 5
Years
     (In thousands)

Current and long-term debt

   $ 1,680,310    $ 387,542    $ 252,834    $ 384,879    $ 655,055

Capital lease obligations

     182,011      5,590      11,180      11,201      154,040

Operating leases

     200,977      3,122      6,298      6,120      185,437

Real estate commitments

     96,592      —        7,136      —        89,456

Development and redevelopment obligations

     52,541      52,404      85      52      —  

Contractual operating obligations

     10,350      6,544      3,806      —        —  
                                  

Total contractual cash obligations

   $ 2,222,781    $ 455,202    $ 281,339    $ 402,252    $ 1,083,988
                                  

In addition to the amounts set forth in the table above, the following potential commitments exist:

(a) Under the terms of the Congressional Plaza partnership agreement, from and after January 1, 1986, an unaffiliated third party has the right to require us and the two other minority partners to purchase between one-half to all of its 29.47% interest in Congressional Plaza at the interest’s then-current fair market value. Based on management’s current estimate of fair market value as of December 31, 2008, our estimated maximum liability upon exercise of the put option would range from approximately $42 million to $49 million.

(b) Under the terms of one other partnership which owns a project in southern California, if certain leasing and revenue levels are obtained for the property owned by the partnership, the other partner may require us to purchase their partnership interest at a formula price based upon property operating income. The purchase price for the partnership will be paid using our common shares or, subject to certain conditions, cash. If the other partner does not redeem their interest, we may choose to purchase the limited partnership interest upon the same terms.

(c) Under the terms of various other partnership agreements for entities, the partners have the right to exchange their operating units for cash or the same number of our common shares, at our option. As of December 31, 2008, a total of 373,260 operating units are outstanding.

(d) In addition to our contractual obligations, we have other short-term liquidity requirements consisting primarily of normal recurring operating expenses, regular debt service requirements (including debt service relating to additional and replacement debt), recurring corporate expenditures including compensation agreements, non-recurring corporate expenditures (such as tenant improvements and redevelopments) and dividends to common and preferred shareholders. Overall capital requirements will depend upon acquisition opportunities, the level of improvements and redevelopments on existing properties and the timing and cost of future phases of existing properties, including Santana Row and Assembly Square.

(e) At December 31, 2008, we had letters of credit outstanding of approximately $10.5 million which are collateral for existing indebtedness and other obligations of the Trust.

 

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Debt Financing Arrangements

The following is a summary of our total debt outstanding as of December 31, 2008:

 

Description of Debt

   Original
Debt
Issued
   Principal Balance
as of

December 31, 2008
    Stated Interest Rate
as of

December 31, 2008
    Maturity Date
     (Dollars in thousands)                 

Mortgage loans(1)

         

Secured fixed rate

         

Mercer Mall(2)

   Acquired    $ 4,370     8.375 %   April 1, 2009

Federal Plaza

   36,500      33,128     6.750 %   June 1, 2011

Tysons Station

   7,000      6,070     7.400 %   September 1, 2011

Courtyard Shops

   Acquired      7,731     6.870 %      July 1, 2012

Bethesda Row

   Acquired      19,996     5.370 %   January 1, 2013

Bethesda Row

   Acquired      4,437     5.050 %   February 1, 2013

White Marsh Plaza(3)

   Acquired      10,122     6.040 %   April 1, 2013

Crow Canyon

   Acquired      21,214     5.400 %   August 11, 2013

Melville Mall(4)

   Acquired      24,456     5.250 %   September 1, 2014

THE AVENUE at White Marsh

   Acquired      60,016     5.460 %   January 1, 2015

Barracks Road

   44,300      41,368     7.950 %   November 1, 2015

Hauppauge

   16,700      15,595     7.950 %   November 1, 2015

Lawrence Park

   31,400      29,322     7.950 %   November 1, 2015

Wildwood

   27,600      25,773     7.950 %   November 1, 2015

Wynnewood

   32,000      29,882     7.950 %   November 1, 2015

Brick Plaza

   33,000      30,633     7.415 %   November 1, 2015

Shoppers’ World

   Acquired      5,865     5.910 %   January 31, 2021

Mount Vernon(5)

   13,250      11,640     5.660 %   April 15, 2028

Chelsea

   Acquired      8,101     5.360 %   January 15, 2031
               

Subtotal

        389,719      

Net unamortized discount

        (401 )    
               

Total mortgage loans

        389,318      
               

Notes payable

         

Unsecured fixed rate

         

Other

   2,221      2,296     6.50 %   April 1, 2012

Perring Plaza renovation

   3,087      1,195     10.000 %   January 31, 2013

Unsecured variable rate

         

Term loan(6)

   200,000      200,000     LIBOR + 0.575 %   November 6, 2009

Revolving credit facility(7)

   300,000      123,500     LIBOR + 0.425 %   July 27, 2010

Escondido (Municipal bonds)(8)

   9,400      9,400     1.878 %   October 1, 2016
                  

Total notes payable

        336,391      
                  

Senior notes and debentures

         

Unsecured fixed rate

         

8.75% notes(9)

   175,000      175,000     8.750 %   December 1, 2009

4.50% notes

   75,000      75,000     4.500 %   February 15, 2011

6.00% notes

   175,000      175,000     6.000 %   July 15, 2012

5.40% notes

   135,000      135,000     5.400 %   December 1, 2013

5.65% notes

   125,000      125,000     5.650 %   June 1, 2016

6.20% notes

   200,000      200,000     6.200 %   January 15, 2017

7.48% debentures(10)

   50,000      29,200     7.480 %   August 15, 2026

6.82% medium term notes

   40,000      40,000     6.820 %   August 1, 2027
                  

Subtotal

        954,200      

Net unamortized premium

        2,384      
                  

Total senior notes and debentures

        956,584      
                  

Capital lease obligations

         

Various

        63,492     Various     Various through 2106
                  

Total debt and capital lease obligations

      $ 1,745,785      
                  

 

(1) Mortgage loans do not include our 30% share ($24.4 million) of the $81.4 million debt of the partnership with a discretionary fund created and advised by ING Clarion Partners.
(2) On January 5, 2009, we repaid the $4.4 million mortgage with funds borrowed on our $300 million revolving credit facility.

 

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(3) The stated interest rate represents the weighted average interest rate for two mortgage loans secured by this property. The loan balance represents an interest-only loan of $4.35 million at a stated rate of 6.18% and the remaining balance at a stated rate of 5.96%.
(4) The Trust acquired control of Melville Mall through a 20-year master lease and secondary financing. Because the Trust controls this property and retains substantially all of the economic benefit and risk associated with it, this property is consolidated and the mortgage loan is reflected on the balance sheet, though it is not a legal obligation of the Trust.
(5) The interest rate is fixed at 5.66% for the first ten years and then will be reset to a market rate in 2013. The lender has the option to call the loan on April 15, 2013 or any time thereafter.
(6) In July 2008, we exercised our option extending the maturity date from November 6, 2008 to November 6, 2009. On February 21, 2008 we entered into two interest rate swap agreements to fix the variable portion of this debt through November 6, 2008. The first swap fixed the variable rate at 2.725% on a notional amount of $100 million and the second swap fixed the variable rate at 2.852% on a notional amount of $100 million for a combined rate of 2.789%. The swap ended on November 6, 2008. The weighted average effective interest rate, before amortization of debt fees, was 3.56% for the year ended December 31, 2008.
(7) The maximum amount drawn under the credit facility during 2008 was $159.0 million. The weighted average effective interest rate on borrowings under our revolving credit facility, before amortization of debt fees, was 3.0% for the year ended December 31, 2008. This credit facility matures on July 27, 2010, subject to a one-year extension at our option.
(8) The bonds require monthly interest only payments through maturity. The bonds bear interest at a variable rate determined weekly, which would enable the bonds to be remarketed at 100% of their principal amount. The property is not encumbered by a lien.
(9) On January 12, 2009 and February 5, 2009, we purchased and retired $5.0 million and $0.9 million, respectively, of the outstanding $175.0 million balance using funds borrowed on our $300 million revolving credit facility.
(10) On August 15, 2008, one of the holders redeemed $20.8 million of the outstanding $50.0 million balance. The notice period for additional redemptions has expired.

Our credit facility and other debt agreements include financial and other covenants that may limit our operating activities in the future. As of December 31, 2008, we were in compliance with all of the financial and other covenants. If we were to breach any of our debt covenants and did not cure the breach within any applicable cure period, our lenders could require us to repay the debt immediately and, if the debt is secured, could immediately begin proceedings to take possession of the property securing the loan. Many of our debt arrangements, including our public notes and our credit facility, are cross-defaulted, which means that the lenders under those debt arrangements can put us in default and require immediate repayment of their debt if we breach and fail to cure a covenant under certain of our other debt obligations. As a result, any default under our debt covenants could have an adverse effect on our financial condition, our results of operations, our ability to meet our obligations and the market value of our shares. Our organizational documents do not limit the level or amount of debt that we may incur.

The following is a summary of our debt maturities as of December 31, 2008:

 

     Secured    Capital
Leases
   Unsecured     Total  
     (In thousands)  

2009

   $ 11,389    $ 1,220    $ 376,153     $ 388,762 (1)

2010

     7,714      1,305      124,361 (2)     133,380  

2011

     45,039      1,399      75,720       122,158  

2012

     14,662      1,500      175,727       191,889  

2013

     59,460      1,609      135,030       196,099  

Thereafter

     251,455      56,459      403,600       711,514  
                              
   $ 389,719    $ 63,492    $ 1,290,591     $ 1,743,802 (3)
                              

 

(1) On January 2, 2009, we repaid the $4.4 million mortgage loan on Mercer Mall. On January 12, 2009 and February 5, 2009, we purchased and retired $5.0 million and $0.9 million, respectively, of the outstanding $175.0 million balance on our 8.75% notes. All repayments were made using funds borrowed on our $300 million revolving credit facility.
(2) Our $300 million four-year revolving credit facility matures on July 27, 2010, subject to a one-year extension at our option. As of December 31, 2008, there is $123.5 million drawn under this credit facility.
(3) Total debt maturities differs from the total reported on the consolidated balance sheet due to unamortized discounts and premiums as of December 31, 2008.

 

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Interest Rate Hedging

We use derivative instruments to manage exposure to variable interest rate risk. We generally enter into interest rate swaps to manage our exposure to variable interest rate risk and treasury locks to manage the risk of interest rates rising prior to the issuance of debt. We enter into derivative instruments that qualify as cash flow hedges under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities” and do not enter into derivative instruments for speculative purposes. As of December 31, 2008, we had no outstanding hedging instruments.

Our cash flow hedges are recorded at fair value. We assess effectiveness of our cash flow hedges both at inception and on an ongoing basis. The effective portion of changes in fair value of our cash flow hedges is recorded in other comprehensive income, and the ineffective portion of changes in fair value of our cash flow hedges is recognized in earnings in the period affected. Hedge ineffectiveness did not have a significant impact on earnings in 2008, 2007 and 2006, and we do not anticipate it will have a significant effect in the future.

On February 21, 2008, we entered into two interest rate swap agreements to fix the variable portion of our $200 million term loan through November 6, 2008. The first swap fixed the variable rate at 2.725% on a notional amount of $100 million and the second swap fixed the variable rate at 2.852% on a notional amount of $100 million for a combined fixed rate of 2.789%. Both swaps were designated and qualified as cash flow hedges and were recorded at fair value until the swaps ended on November 6, 2008.

REIT Qualification

We intend to maintain our qualification as a REIT under Section 856(c) of the Code. As a REIT, we generally will not be subject to corporate federal income taxes on income we distribute to our shareholders as long as we satisfy certain technical requirements of the Code, including the requirement to distribute at least 90% of our REIT taxable income to our shareholders.

Funds From Operations

Funds from operations (“FFO”) is a supplemental non-GAAP financial measure of real estate companies’ operating performance. The National Association of Real Estate Investment Trusts (“NAREIT”) defines FFO as follows: net income, computed in accordance with the U.S. GAAP, plus depreciation and amortization of real estate assets and excluding extraordinary items and gains and losses on the sale of real estate. We compute FFO in accordance with the NAREIT definition, and we have historically reported our FFO available for common shareholders in addition to our net income and net cash provided by operating activities. It should be noted that FFO:

 

   

does not represent cash flows from operating activities in accordance with GAAP (which, unlike FFO, generally reflects all cash effects of transactions and other events in the determination of net income);

 

   

should not be considered an alternative to net income as an indication of our performance; and

 

   

is not necessarily indicative of cash flow as a measure of liquidity or ability to fund cash needs, including the payment of dividends.

We consider FFO available for common shareholders a meaningful, additional measure of operating performance primarily because it excludes the assumption that the value of the real estate assets diminishes predictably over time, as implied by the historical cost convention of GAAP and the recording of depreciation. We use FFO primarily as one of several means of assessing our operating performance in comparison with other REITs. Comparison of our presentation of FFO to similarly titled measures for other REITs may not necessarily be meaningful due to possible differences in the application of the NAREIT definition used by such REITs.

 

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An increase or decrease in FFO available for common shareholders does not necessarily result in an increase or decrease in aggregate distributions because our Board of Trustees is not required to increase distributions on a quarterly basis. However, we must generally distribute 90% of our REIT taxable income (including net capital gain) to remain qualified as a REIT. Therefore, a significant increase in FFO will generally require an increase in distributions to shareholders although not necessarily on a proportionate basis.

The reconciliation of net income to funds from operations available for common shareholders is as follows:

 

     For the Year Ended December 31,  
     2008     2007     2006  
     (In thousands, except per share data)  

Net income

   $ 129,787     $ 195,537     $ 118,712  

Gain on sale of real estate

     (12,572 )     (94,768 )     (23,956 )

Depreciation and amortization of real estate assets

     101,450       95,565       88,649  

Amortization of initial direct costs of leases

     8,771       8,473       7,390  

Depreciation of joint venture real estate assets

     1,331       1,241       768  
                        

Funds from operations

     228,767       206,048       191,563  

Dividends on preferred stock

     (541 )     (442 )     (10,423 )

Income attributable to operating partnership units

     950       1,156       748  

Preferred stock redemption costs

     —         —         (4,775 )
                        

Funds from operations available for common shareholders

   $ 229,176     $ 206,762     $ 177,113  
                        

Weighted average number of common shares, diluted

     59,292       56,999       54,351  

Funds from operations available for common shareholders, per diluted share

   $ 3.87     $ 3.63     $ 3.26  

 

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ITEM 7A.    QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Our use of financial instruments, such as debt instruments, subjects us to market risk which may affect our future earnings and cash flows, as well as the fair value of our assets. Market risk generally refers to the risk of loss from changes in interest rates and market prices. We manage our market risk by attempting to match anticipated inflow of cash from our operating, investing and financing activities with anticipated outflow of cash to fund debt payments, dividends to common and preferred shareholders, investments, capital expenditures and other cash requirements.

As of December 31, 2008, we were not party to any open derivative financial instruments. We may enter into certain types of derivative financial instruments to further reduce interest rate risk. We use interest rate protection and swap agreements, for example, to convert some of our variable rate debt to a fixed-rate basis or to hedge anticipated financing transactions. We use derivatives for hedging purposes rather than speculation and do not enter into financial instruments for trading purposes.

Interest Rate Risk

The following discusses the effect of hypothetical changes in market rates of interest on interest expense for our variable rate debt and on the fair value of our total outstanding debt, including our fixed-rate debt. Interest rate risk amounts were determined by considering the impact of hypothetical interest rates on our debt. Quoted market prices were used to estimate the fair value of our marketable senior notes and debentures and discounted cash flow analysis is generally used to estimate the fair value of our mortgages and notes payable. Considerable judgment is necessary to estimate the fair value of financial instruments. This analysis does not purport to take into account all of the factors that may affect our debt, such as the effect that a changing interest rate environment could have on the overall level of economic activity or the action that our management might take to reduce our exposure to the change. This analysis assumes no change in our financial structure.

Fixed Interest Rate Debt

The majority of our outstanding debt obligations (maturing at various times through 2031 or through 2106 including capital lease obligations) have fixed interest rates which limit the risk of fluctuating interest rates. However, interest rate fluctuations may affect the fair value of our fixed rate debt instruments. At December 31, 2008 we had $1.4 billion of fixed-rate debt outstanding. If interest rates on our fixed-rate debt instruments at December 31, 2008 had been 1.0% higher, the fair value of those debt instruments on that date would have decreased by approximately $47.0 million. If interest rates on our fixed-rate debt instruments at December 31, 2008 had been 1.0% lower, the fair value of those debt instruments on that date would have increased by approximately $49.5 million.

Variable Interest Rate Debt

We believe that our primary interest rate risk is due to fluctuations in interest rates on our variable rate debt. At December 31, 2008, we had $332.9 million of variable rate debt outstanding. Based upon this amount of variable rate debt, if interest rates increased by 1.0% our annual interest expense would increase by approximately $3.3 million, and our net income and cash flows for the year would decrease by approximately $3.3 million. Conversely, if interest rates decreased by 1.0%, our annual interest expense would decrease by approximately $3.3 million, and our net income and cash flows for the year would increase by approximately $3.3 million.

 

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ITEM 8.    FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

Our consolidated financial statements and supplementary data are included as a separate section of this Annual Report on Form 10-K commencing on page F-1 and are incorporated herein by reference.

ITEM 9.    CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

None.

 

ITEM 9A.    CONTROLS AND PROCEDURES

Quarterly Assessment

We carried out an assessment as of December 31, 2008 of the effectiveness of the design and operation of our disclosure controls and procedures and our internal control over financial reporting. This assessment was done under the supervision and with the participation of management, including our Chief Executive Officer and our Chief Financial Officer. Rules adopted by the SEC require that we present the conclusions of our principal executive officer and our principal financial officer about the effectiveness of our disclosure controls and procedures and the conclusions of our management about the effectiveness of our internal control over financial reporting as of the end of the period covered by this annual report.

Principal Executive Officer and Principal Financial Officer Certifications

Included as Exhibits 31.1 and 31.2 to this Annual Report on Form 10-K are forms of “Certification” of our principal executive officer and our principal financial officer. The forms of Certification are required in accordance with Section 302 of the Sarbanes-Oxley Act of 2002. This section of this Annual Report on Form 10-K that you currently are reading is the information concerning the assessment referred to in the Section 302 certifications and this information should be read in conjunction with the Section 302 certifications for a more complete understanding of the topics presented.

Disclosure Controls and Procedures

We maintain disclosure controls and procedures that are designed to provide reasonable assurance that information required to be disclosed in our Exchange Act reports, such as this report on Form 10-K, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our President and Chief Executive Officer and Senior Vice President and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. These controls and procedures are based closely on the definition of “disclosure controls and procedures” in Rule 13a-15(e) promulgated under the Exchange Act. Rules adopted by the SEC require that we present the conclusions of the Chief Executive Officer and Chief Financial Officer about the effectiveness of our disclosure controls and procedures as of the end of the period covered by this annual report.

Internal Control over Financial Reporting

Establishing and maintaining internal control over financial reporting is a process designed by, or under the supervision of, our President and Chief Executive Officer and Senior Vice President and Chief Financial Officer, as appropriate, and effected by our employees, including management and our Board of Trustees, 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 in the United States of America. This process includes policies and procedures that:

 

   

pertain to the maintenance of records that accurately and fairly reflect the transactions and dispositions of our assets in reasonable detail;

 

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provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are made only in accordance with the authorization procedures we have established; and

 

   

provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of any of our assets in circumstances that could have a material adverse effect on our financial statements.

Limitations on the Effectiveness of Controls

Management, including our Chief Executive Officer and Chief Financial Officer, do not expect that our disclosure controls and procedures or internal control over financial reporting will prevent all errors and fraud. In designing and evaluating our control system, management recognized that any control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance of achieving the desired control objectives. Further, the design of a control system must reflect the fact that there are resource constraints, and management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, that may affect our operation have been or will be detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management’s override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Over time, controls may become inadequate because of changes in conditions that cannot be anticipated at the present time, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.

Scope of the Evaluations

The evaluation by our Chief Executive Officer and our Chief Financial Officer of our disclosure controls and procedures and our internal control over financial reporting included a review of our procedures and procedures performed by internal audit, as well as discussions with our Disclosure Committee, independent public accountants and others in our organization, as appropriate. In conducting this evaluation, our management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework. In the course of the evaluation, we sought to identify data errors, control problems or acts of fraud and to confirm that appropriate corrective action, including process improvements, were being undertaken. The evaluation of our disclosure controls and procedures and our internal control over financial reporting is done on a quarterly basis, so that the conclusions concerning the effectiveness of such controls can be reported in our Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K.

Our internal control over financial reporting is also assessed on an ongoing basis by personnel in our Accounting department and by our independent auditors in connection with their audit and review activities. The overall goals of these various evaluation activities are to monitor our disclosure controls and procedures and our internal control over financial reporting and to make modifications as necessary. Our intent in this regard is that the disclosure controls and procedures and internal control over financial reporting will be maintained and updated (including with improvements and corrections) as conditions warrant. Among other matters, we sought in our evaluation to determine whether there were any “significant deficiencies” or “material weaknesses” in our internal control over financial reporting, or whether we had identified any acts of fraud involving personnel who have a significant role in our internal control over financial reporting. This information is important both for the evaluation generally and because the Section 302 certifications require that our Chief Executive Officer and our

 

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Chief Financial Officer disclose that information to the Audit Committee of our Board of Trustees and our independent auditors and also require us to report on related matters in this section of the Annual Report on Form 10-K. In the Public Company Accounting Oversight Board’s Auditing Standard No. 5, a “significant deficiency” is a deficiency, or a combination of deficiencies, in internal control over financial reporting that is less severe than a material weakness, yet important enough to merit attention by those responsible for oversight of the company’s financial reporting. A “deficiency” in internal control over financial reporting exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent or detect misstatements on a timely basis. A “material weakness” is defined in Auditing Standard No. 5 as a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis. We also sought to deal with other control matters in the evaluation, and in any case in which a problem was identified, we considered what revision, improvement and/or correction was necessary to be made in accordance with our on-going procedures.

Periodic Evaluation and Conclusion of Disclosure Controls and Procedures

Our Chief Executive Officer and Chief Financial Officer have conducted an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this report. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that such controls and procedures were effective as of the end of the period covered by this report to provide reasonable assurance that information required to be disclosed in our Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management to allow timely decisions regarding required disclosure.

Periodic Evaluation and Conclusion of Internal Control over Financial Reporting

Our Chief Executive Officer and Chief Financial Officer have conducted an evaluation of the effectiveness of the design and operation of our internal control over financial reporting as of the end of our most recent fiscal year. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that such internal control over financial reporting was effective as of the end of our most recent fiscal year 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 in the United States of America.

Statement of Our Management

Our management has issued a report on its assessment of the Trust’s internal control over financial reporting, which appears on page F-2 of this Annual Report on Form 10-K.

Statement of Our Independent Registered Public Accounting Firm

Grant Thornton LLP, our independent registered public accounting firm that audited the financial statements included in this Annual Report on Form 10-K, has issued an attestation report on the Trust’s internal control over financial reporting, which appears on page F-3 of this Annual Report on Form 10-K.

Changes in Internal Control Over Financial Reporting

There was no change in our internal control over financial reporting during our fourth fiscal quarter of 2008 that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

ITEM 9B.    OTHER INFORMATION

Not applicable.

 

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PART III

Certain information required in Part III is omitted from this Report but is incorporated herein by reference from our Proxy Statement for the 2009 Annual Meeting of Shareholders (the “Proxy Statement”).

 

ITEM 10. TRUSTEES, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

a.) The tables and narrative in the Proxy Statement identifying our Trustees and Board committees under the caption “Election of Trustees” and “Corporate Governance” and the section of the Proxy Statement entitled “Executive Officers” are incorporated herein by reference.

b.) The information included under the section of the Proxy Statement entitled “Section 16(a) Beneficial Ownership Reporting Compliance” is incorporated herein by reference.

c.) We have adopted a Code of Ethics, which is applicable to our Chief Executive Officer and senior financial officers. The Code of Ethics is available in the Corporate Governance section of the Investor Information section of our website at www.federalrealty.com.

 

ITEM 11. EXECUTIVE COMPENSATION

The sections of the Proxy Statement entitled “Summary Compensation Table,” “Compensation Committee Interlocks and Insider Participation,” “Compensation Committee Report,” “Trustee Compensation” and “Compensation Discussion and Analysis” are incorporated herein by reference.

 

ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED SHAREHOLDER MATTERS

The sections of the Proxy Statement entitled “Share Ownership” and “Equity Compensation Plan Information” are incorporated herein by reference.

 

ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND TRUSTEE INDEPENDENCE

The sections of the Proxy Statement entitled “Certain Relationship and Related Transactions” and “Independence of Trustees” are incorporated herein by reference.

 

ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES

The sections of the Proxy Statement entitled “Ratification of Independent Registered Public Accounting Firm” and “Relationship with Independent Registered Public Accounting Firm” are incorporated herein by reference.

 

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PART IV

 

ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

(a)(1) Financial Statements

Our consolidated financial statements and notes thereto, together with Management’s Report on Internal Control over Financial Reporting and Report of Independent Registered Public Accounting Firm are included as a separate section of this Annual Report on Form 10-K commencing on page F-1.

(2) Financial Statement Schedules

Our financial statement schedules are included in a separate section of this Annual Report on Form 10-K commencing on page F-37.

(3) Exhibits

A list of exhibits to this Annual Report on Form 10-K is set forth on the Exhibit Index immediately preceding such exhibits and is incorporated herein by reference.

(b) See Exhibit Index

(c) Not Applicable

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized this 26th day of February, 2009.

 

Federal Realty Investment Trust
By:  

/S/    DONALD C. WOOD        

 

Donald C. Wood

Chief Executive Officer

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Report has been signed below by the following persons on behalf of the Registrant and in the capacity and on the dates indicated. Each person whose signature appears below hereby constitutes and appoints each of Donald C. Wood and Dawn M. Becker as his or her attorney-in-fact and agent, with full power of substitution and resubstitution for him or her in any and all capacities, to sign any or all amendments to this Report and to file same, with exhibits thereto and other documents in connection therewith, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters and hereby ratifying and confirming all that such attorney-in-fact and agent or his or her substitutes may do or cause to be done by virtue hereof.

 

Signature

  

Title

 

Date

/S/    DONALD C. WOOD        

Donald C. Wood

  

Chief Executive Officer, Trustee (Principal Executive Officer)

  February 26, 2009

/S/    ANDREW P. BLOCHER        

Andrew P. Blocher

  

Senior Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)

  February 26, 2009

/S/    JOSEPH S. VASSALLUZZO        

Joseph S. Vassalluzzo

  

Non-Executive Chairman

  February 26, 2009

/S/    JON E. BORTZ        

Jon Bortz

  

Trustee

  February 26, 2009

/S/    DAVID W. FAEDER        

David W. Faeder

  

Trustee

  February 26, 2009

/S/    KRISTIN GAMBLE        

Kristin Gamble

  

Trustee

  February 26, 2009

/S/    GAIL P. STEINEL        

Gail P. Steinel

  

Trustee

  February 26, 2009

/S/    WARREN M. THOMPSON        

Warren M. Thompson

  

Trustee

  February 26, 2009

 

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Item 8 and Item 15(a)(1) and (2)

Index to Consolidated Financial Statements and Schedules

 

Consolidated Financial Statements

   Page No.

Management Assessment Report on Internal Control over Financial Reporting

   F-2

Report of Independent Registered Public Accounting Firm

   F-3

Report of Independent Registered Public Accounting Firm

   F-4

Consolidated Balance Sheets

   F-5

Consolidated Statements of Operations

   F-6

Consolidated Statement of Shareholders’ Equity

   F-7

Consolidated Statements of Cash Flows

   F-8

Notes to Consolidated Financial Statements

   F-9-F-36

Financial Statement Schedules

  

Schedule III—Summary of Real Estate and Accumulated Depreciation

   F-37-F-43

Schedule IV—Mortgage Loans on Real Estate

   F-44-F-45

All other schedules have been omitted either because the information is not applicable, not material, or is disclosed in our consolidated financial statements and related notes.

 

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Management Assessment Report on Internal Control over Financial Reporting

The management of Federal Realty is responsible for establishing and maintaining adequate internal control over financial reporting. Establishing and maintaining internal control over financial reporting is a process designed by, or under the supervision of, our President and Chief Executive Officer and Senior Vice President and Chief Financial Officer, as appropriate, and effected by our employees, including management and our Board of Trustees, 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. This process includes policies and procedures that:

 

   

pertain to the maintenance of records that accurately and fairly reflect the transactions and dispositions of our assets in reasonable detail;

 

   

provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are made only in accordance with the authorization procedures we have established; and

 

   

provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of any of our assets in circumstances that could have a material adverse effect on our financial statements.

Management, including our Chief Executive Officer and Chief Financial Officer, do not expect that our internal control over financial reporting will prevent all errors and fraud. In designing and evaluating our control system, management recognized that any control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance of achieving the desired control objectives. Further, the design of a control system must reflect the fact that there are resource constraints, and management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, that may affect our operation have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management’s override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions.

Management conducted an assessment of the effectiveness of the Trust’s internal control over financial reporting as of December 31, 2008. In making this assessment, it used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework. Based on this assessment, management concluded that our internal control over financial reporting is effective, based on those criteria, as of December 31, 2008.

Grant Thornton LLP, the independent registered public accounting firm that audited the Trust’s consolidated financial statements included in this Annual Report on Form 10-K, has issued an attestation report on the Trust’s internal control over financial reporting, which appears on page F-3 of this Annual Report on Form 10-K.

 

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Report of Independent Registered Public Accounting Firm

Trustees and Shareholders of Federal Realty Investment Trust

We have audited Federal Realty Investment Trust (a Maryland real estate investment trust) and subsidiaries’ (the Trust) internal control over financial reporting as of December 31, 2008, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Federal Realty Investment Trust’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management Assessment Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on Federal Realty Investment Trust’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

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 (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) 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 (3) 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.

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.

In our opinion, Federal Realty Investment Trust and subsidiaries maintained, in all material respects, effective internal control over financial reporting as of December 31, 2008, based on criteria established in Internal Control—Integrated Framework issued by COSO.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Federal Realty Investment Trust and subsidiaries as of December 31, 2008 and 2007, and the related consolidated statements of operations, shareholders’ equity, and cash flows for each of the three years in the period ended December 31, 2008 and our report dated February 25, 2009 expressed an unqualified opinion.

/s/ GRANT THORNTON LLP        

McLean, Virginia

February 25, 2009

 

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Report of Independent Registered Public Accounting Firm

Trustees and Shareholders of Federal Realty Investment Trust

We have audited the accompanying consolidated balance sheets of Federal Realty Investment Trust (a Maryland real estate investment trust) and subsidiaries (the Trust) as of December 31, 2008 and 2007, and the related consolidated statements of operations, shareholders’ equity, and cash flows for each of the three years in the period ended December 31, 2008. Our audits of the basic financial statements included the financial statement schedules listed in the index appearing under Item 15(a) (1) and (2). These financial statements and financial statement schedules are the responsibility of the Trust’s management. Our responsibility is to express an opinion on these financial statements and financial statement schedules based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Trust as of December 31, 2008 and 2007, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2008 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the related financial statement schedules, when considered in relation to the basic financial statements taken as a whole, present fairly, in all material respects, the information set forth therein.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Trust’s internal control over financial reporting as of December 31, 2008, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) and our report dated February 25, 2009 expressed an unqualified opinion.

/s/ GRANT THORNTON LLP        

McLean, Virginia

February 25, 2009

 

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Federal Realty Investment Trust

CONSOLIDATED BALANCE SHEETS

 

     December 31,  
     2008     2007  
     (In thousands)  

ASSETS

    

Real estate, at cost

    

Operating

   $ 3,567,035     $ 3,265,020  

Construction-in-progress

     106,650       147,925  

Assets held for sale (discontinued operations)

     —         39,902  
                
     3,673,685       3,452,847  

Less accumulated depreciation and amortization

     (846,258 )     (756,703 )
                

Net real estate

     2,827,427       2,696,144  

Cash and cash equivalents

     15,223       50,691  

Accounts and notes receivable

     73,688       61,108  

Mortgage notes receivable

     45,780       40,638  

Investment in real estate partnership

     29,252       29,646  

Prepaid expenses and other assets

     95,344       103,620  

Debt issuance costs, net of accumulated amortization of $6,484 and $4,815, respectively

     6,062       7,450  
                

TOTAL ASSETS

   $ 3,092,776     $ 2,989,297  
                

LIABILITIES AND SHAREHOLDERS’ EQUITY

    

Liabilities

    

Mortgages payable

   $ 389,318     $ 373,975  

Capital lease obligations

     63,492       76,109  

Notes payable

     336,391       210,820  

Senior notes and debentures

     956,584       977,556  

Accounts payable and accrued expenses

     86,950       99,360  

Dividends payable

     38,719       36,142  

Security deposits payable

     11,309       10,703  

Other liabilities and deferred credits

     63,059       58,182  
                

Total liabilities

     1,945,822       1,842,847  

Minority interests

     32,352       31,818  

Commitments and contingencies (Note 8)

    

Shareholders’ equity

    

Preferred stock, authorized 15,000,000 shares, $.01 par:

    

5.417% Series 1 Cumulative Convertible Preferred Shares, (stated at liquidation preference $25 per share), 399,896 shares issued and outstanding

     9,997       9,997  

Common shares of beneficial interest, $.01 par, 100,000,000 shares authorized, 60,487,244 and 60,133,270 issued, respectively

     605       601  

Additional paid-in capital

     1,559,381       1,541,020  

Accumulated dividends in excess of net income

     (426,574 )     (407,376 )

Treasury shares at cost, 1,501,566 and 1,487,605 shares, respectively

     (28,807 )     (28,807 )

Notes receivable from issuance of common shares

     —         (803 )
                

Total shareholders’ equity

     1,114,602       1,114,632  
                

TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY

   $ 3,092,776     $ 2,989,297  
                

The accompanying notes are an integral part of these consolidated statements.

 

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Federal Realty Investment Trust

CONSOLIDATED STATEMENTS OF OPERATIONS

 

     Year Ended December 31,  
     2008     2007     2006  
     (In thousands, except per share data)  

REVENUE

      

Rental income

   $ 501,964     $ 465,728     $ 414,261  

Other property income

     14,013       12,834       7,460  

Mortgage interest income

     4,548       4,560       5,095  
                        

Total revenue

     520,525       483,122       426,816  
                        

EXPENSES

      

Rental expenses

     109,718       99,363       84,164  

Real estate taxes

     55,714       46,897       41,139  

General and administrative

     26,732       26,581       21,921  

Depreciation and amortization

     111,022       101,633       92,751  
                        

Total operating expenses

     303,186       274,474       239,975  
                        

OPERATING INCOME

     217,339       208,648       186,841  

Other interest income

     916       921       2,042  

Interest expense

     (99,163 )     (111,365 )     (95,234 )

Income from real estate partnership

     1,612       1,395       656  
                        

INCOME FROM CONTINUING OPERATIONS BEFORE MINORITY INTERESTS

     120,704       99,599       94,305  

Minority interests

     (5,366 )     (5,590 )     (4,353 )
                        

INCOME FROM CONTINUING OPERATIONS

     115,338       94,009       89,952  

DISCONTINUED OPERATIONS

      

Discontinued operations—income

     1,877       6,760       4,804  

Discontinued operations—gain on sale of real estate

     12,572       94,768       16,515  
                        

Results from discontinued operations

     14,449       101,528       21,319  
                        

INCOME BEFORE GAIN ON SALE OF REAL ESTATE

     129,787       195,537       111,271  

Gain on sale of real estate

     —         —         7,441  
                        

NET INCOME

     129,787       195,537       118,712  

Dividends on preferred stock

     (541 )     (442 )     (10,423 )

Preferred stock redemption costs

     —         —         (4,775 )
                        

NET INCOME AVAILABLE FOR COMMON SHAREHOLDERS

   $ 129,246     $ 195,095     $ 103,514  
                        

EARNINGS PER COMMON SHARE, BASIC

      

Continuing operations

   $ 1.96     $ 1.67     $ 1.40  

Discontinued operations

     0.24       1.81       0.40  

Gain on sale of real estate

     —         —         0.14  
                        
   $ 2.20     $ 3.48     $ 1.94  
                        

Weighted average number of common shares, basic

     58,665       56,108       53,469  
                        

EARNINGS PER COMMON SHARE, DILUTED

      

Continuing operations

   $ 1.95     $ 1.65     $ 1.39  

Discontinued operations

     0.24       1.80       0.39  

Gain on sale of real estate

     —         —         0.14  
                        
   $ 2.19     $ 3.45     $ 1.92  
                        

Weighted average number of common shares, diluted

     58,914       56,543       53,962  
                        

The accompanying notes are an integral part of these consolidated statements.

 

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Federal Realty Investment Trust

CONSOLIDATED STATEMENT OF SHAREHOLDERS’ EQUITY

 

    Preferred Stock     Common Shares   Additional
Paid-in
Capital
    Accumulated
Dividends In
Excess of
Net Income
    Treasury Shares     Deferred
Compensation
On Restricted
Shares
    Notes
Receivable
From the
Issuance of
Common
Shares
    Accumulated
Other
Comprehensive
Income (Loss)
    Total
Shareholders’
Equity
 
    Shares     Amount     Shares   Amount       Shares     Amount          
    (In thousands, except share data)  

BALANCE AT DECEMBER 31, 2005

  5,400     $ 135,000     54,371,057   $ 544   $ 1,114,732     $ (437,817 )   (1,480,360 )   $ (28,794 )   $ (9,704 )   $ (1,792 )   $ 2,678     $ 774,847  

Comprehensive income:

                       

Net income

  —         —       —       —       —         118,712     —         —         —         —         —         118,712  

Change in valuation on interest rate swaps

  —         —       —       —       —         —       —         —         —         —         (1,493 )     (1,493 )
                             

Total comprehensive income

                          117,219  

Change due to termination of hedge relationship

  —         —       —       —       —         —       —         —         —         —         (1,185 )     (1,185 )

Dividends declared to common shareholders

  —         —       —       —       —         (133,066 )   —         —         —         —         —         (133,066 )

Dividends declared to preferred shareholders

  —         —       —       —       —         (10,423 )   —         —         —         —         —         (10,423 )

Common shares issued

  —         —       2,002,670     20     149,077       —       —         —         —         —         —         149,097  

Exercise of stock options

  —         —       266,579     2     8,843       —       —         —         —         —         —         8,845  

Shares issued under dividend reinvestment plan

  —         —       44,077     —       3,101       —       —         —         —         —         —         3,101  

Share-based compensation expense (SFAS No.123 (R))

  —         —       84,217     1     6,490       —       —         —         —         —         —         6,491  

Cumulative effect of change in accounting principle

  —         —       —       —       (6,416 )     —       —         —         9,704       —         —         3,288  

Conversion and redemption of OP units

  —         —       37,216     1     615       —       —         —         —         —         —         616  

Preferred shares redeemed

  (5,400 )     (135,000 )   —       —       4,775       (4,775 )   —         —         —         —         —         (135,000 )

Unvested shares forfeited

  —         —       —       —       —         —       (4,919 )     (13 )     —         —         —         (13 )

Loans paid

  —         —       —       —       —         —       —         —         —         261       —         261  
                                                                                     

BALANCE AT DECEMBER 31, 2006

  —         —       56,805,816     568     1,281,217       (467,369 )   (1,485,279 )     (28,807 )     —         (1,531 )     —         784,078  

Net income/comprehensive income

  —         —       —       —       —         195,537     —         —         —         —         —         195,537  

Dividends declared to common shareholders

  —         —       —       —       —         (135,102 )   —         —         —         —         —         (135,102 )

Dividends declared to preferred shareholders

  —         —       —       —       —         (442 )   —         —         —         —         —         (442 )

Common shares issued

  —         —       2,884,099     29     240,162       —       —         —         —         —         —         240,191  

Exercise of stock options

  —         —       106,117     1     5,066       —       —         —         —         —         —         5,067  

Shares issued under dividend reinvestment plan

  —         —       32,615     —       2,821       —       —         —         —         —         —         2,821  

Share-based compensation expense (SFAS No.123 (R))

  —         —       127,867     1     8,039       —       —         —         —         —         —         8,040  

Conversion and redemption of OP units

  —         —       176,756     2     3,715       —       —         —         —         —         —         3,717  

Preferred shares issued

  399,896       9,997     —       —       —         —       —         —         —         —         —         9,997  

Unvested shares forfeited

  —         —       —       —       —         —       (2,326 )     —         —         —         —         —    

Loans paid

  —         —       —       —       —         —       —         —         —         728       —         728  
                                                                                     

BALANCE AT DECEMBER 31, 2007

  399,896       9,997     60,133,270     601     1,541,020       (407,376 )   (1,487,605 )     (28,807 )     —         (803 )     —         1,114,632  

Net income/comprehensive income

  —         —       —       —       —         129,787     —         —         —         —         —         129,787  

Dividends declared to common shareholders

  —         —       —       —       —         (148,444 )   —         —         —         —         —         (148,444 )

Dividends declared to preferred shareholders

  —         —       —       —       —         (541 )   —         —         —         —         —         (541 )

Common shares issued

  —         —       274     —       19       —       —         —         —         —         —         19  

Exercise of stock options

  —         —       214,853     2     8,006       —       —         —         —         —         —         8,008  

Shares issued under dividend reinvestment plan

  —         —       39,343     —       2,755       —       —         —         —         —         —         2,755  

Share-based compensation expense (SFAS No.123 (R))

  —         —       99,504     2     7,776       —       —         —         —         —         —         7,778  

Conversion and redemption of OP units

  —         —       —         (195 )     —       —         —         —         —         —         (195 )

Unvested shares forfeited

  —         —       —       —       —         —       (13,961 )     —         —         —         —         —    

Loans paid

  —         —       —       —       —         —       —         —         —         803       —         803  
                                                                                     

BALANCE AT DECEMBER 31, 2008

  399,896     $ 9,997     60,487,244   $ 605   $ 1,559,381     $ (426,574 )   (1,501,566 )   $ (28,807 )   $ —       $ —       $ —       $ 1,114,602  
                                                                                     

The accompanying notes are an integral part of these consolidated statements.

 

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Federal Realty Investment Trust

CONSOLIDATED STATEMENTS OF CASH FLOWS

 

     Year Ended December 31,  
     2008     2007     2006  
     (In thousands)  

OPERATING ACTIVITIES

      

Net income

   $ 129,787     $ 195,537     $ 118,712  

Adjustment to reconcile net income to net cash provided by operating activities

      

Depreciation and amortization, including discontinued operations

     111,069       105,966       97,879  

Gain on sale of real estate

     (12,572 )     (94,768 )     (23,956 )

Equity in income from real estate partnership

     (1,612 )     (1,395 )     (656 )

Minority interests

     5,366       5,590       4,353  

Other, net

     1,585       (2,267 )     2,328  

Changes in assets and liabilities net of effects of acquisitions and dispositions:

      

Increase in accounts receivable

     (6,303 )     (6,743 )     (3,786 )

Decrease (increase) in prepaid expenses and other assets

     2,668       3,002       (11,792 )

(Decrease) increase in accounts payable and accrued expenses

     (4,329 )     266       2,846  

Increase in security deposits and other liabilities

     2,626       9,021       726  
                        

Net cash provided by operating activities

     228,285       214,209       186,654  
                        

INVESTING ACTIVITIES

      

Acquisition of real estate

     (99,625 )     (69,487 )     (266,984 )

Capital expenditures—development and redevelopment

     (104,196 )     (111,600 )     (95,718 )

Capital expenditures—other

     (33,790 )     (25,755 )     (23,961 )

Proceeds from sale of real estate

     44,890       83,979       82,345  

Investment in real estate partnership

     —         (20,427 )     (4,960 )

Distribution from real estate partnership in excess of earnings

     363       967       631  

Leasing costs

     (9,921 )     (9,756 )     (8,628 )

(Issuance) repayment of mortgage and other notes receivable, net

     (5,288 )     640       (154 )
                        

Net cash used in investing activities

     (207,567 )     (151,439 )     (317,429 )
                        

FINANCING ACTIVITIES

      

Net borrowings (repayment) under revolving credit facility, net of costs

     123,500       (98,000 )     41,209  

Issuance of note payable, net of costs

     —         199,525       149,979  

Issuance of senior notes

     —         —         509,887  

Repayment of senior notes

     (20,800 )     (150,000 )     (40,500 )

Repayment of mortgages, capital leases and notes payable

     (18,512 )     (7,603 )     (405,552 )

Extension fee on term loan

     (200 )     —         —    

Redemption of Series B preferred shares

     —         —         (135,000 )

Issuance of common shares

     11,585       170,855       161,292  

Dividends paid to common and preferred shareholders

     (146,418 )     (131,443 )     (142,947 )

Distributions to minority interests

     (5,341 )     (6,908 )     (4,737 )
                        

Net cash (used in) provided by financing activities

     (56,186 )     (23,574 )     133,631  
                        

(DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS

     (35,468 )     39,196       2,856  

CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR

     50,691       11,495       8,639  
                        

CASH AND CASH EQUIVALENTS, END OF YEAR

   $ 15,223     $ 50,691     $ 11,495  
                        

The accompanying notes are an integral part of these consolidated statements.

 

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Federal Realty Investment Trust

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

December 31, 2008, 2007 and 2006

NOTE 1.   SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Business and Organization

Federal Realty Investment Trust (the “Trust”) is an equity real estate investment trust specializing in the ownership, management, development and redevelopment of retail and mixed-use properties. Our properties are located primarily in densely populated and affluent communities in strategically selected metropolitan markets in the Mid-Atlantic and Northeast regions of the United States, as well as in California. As of December 31, 2008, we owned or had a majority interest in community and neighborhood shopping centers and mixed-use properties which are operated as 84 predominantly retail real estate projects.

We operate in a manner intended to enable us to qualify as a real estate investment trust (or REIT) for federal income tax purposes. A REIT that distributes at least 90% of its taxable income to its shareholders each year and meets certain other conditions is not taxed on that portion of its taxable income which is distributed to its shareholders. Therefore, federal income taxes on our REIT taxable income have been and are generally expected to be immaterial. We are obligated to pay state taxes, generally consisting of franchise or gross receipts taxes in certain states. Such state taxes also have not been material.

We have elected to treat certain of our subsidiaries as taxable REIT subsidiaries, which we refer to as a TRS. In general, a TRS may engage in any real estate business and certain non-real estate businesses, subject to certain limitations under the Internal Revenue Code of 1986, as amended (the “Code”). A TRS is subject to federal and state income taxes. The sales of condominiums at Santana Row, which occurred between August 2005 and August 2006 were conducted through a TRS. Other than these sales, our TRS activities have not been material.

Principles of Consolidation and Estimates

Our consolidated financial statements include the accounts of the Trust, its corporate subsidiaries, and all entities in which the Trust has a controlling interest or has been determined to be the primary beneficiary of a variable interest entity. The equity interests of other investors are reflected as minority interests. All significant intercompany transactions and balances are eliminated in consolidation. We account for our interests in joint ventures, which we do not control or manage, using the equity method of accounting.

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America, referred to as “GAAP,” requires management to make estimates and assumptions that in certain circumstances affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities, and revenues and expenses. These estimates are prepared using management’s best judgment, after considering past, current and expected events and economic conditions. Actual results could differ from these estimates.

Reclassifications

Certain 2007 and 2006 amounts have been reclassified to conform to current period presentation.

Revenue Recognition and Accounts Receivable

Our leases with tenants are classified as operating leases. Substantially all such leases contain fixed escalations which occur at specified times during the term of the lease. Base rents are recognized on a straight-line basis from when the tenant controls the space through the term of the related lease, net of valuation adjustments, based on management’s assessment of credit, collection and other business risk. Percentage rents, which represent

 

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additional rents based upon the level of sales achieved by certain tenants, are recognized at the end of the lease year or earlier if we have determined the required sales level is achieved and the percentage rents are collectible. Real estate tax and other cost reimbursements are recognized on an accrual basis over the periods in which the related expenditures are incurred. For a tenant to terminate its lease agreement prior to the end of the agreed term, we may require that they pay a fee to cancel the lease agreement. Lease termination fees for which the tenant has relinquished control of the space are generally recognized on the termination date. When a lease is terminated early but the tenant continues to control the space under a modified lease agreement, the lease termination fee is generally recognized evenly over the remaining term of the modified lease agreement.

We make estimates of the collectibility of our accounts receivable related to minimum rents, straight-line rents, expense reimbursements and other revenue or income. In some cases, primarily relating to straight-line rents, the collection of these amounts extends beyond one year. Our experience relative to unbilled straight-line rents is that a certain portion of the amounts otherwise recognizable as revenue is never billed to or collected from tenants due to early lease terminations, lease modifications, bankruptcies and other factors. Accordingly, the extended collection period for straight-line rents along with our evaluation of tenant credit risk may result in the nonrecognition of a portion of straight-line rental income until the collection of such income is reasonably assured. If our evaluation of tenant credit risk changes indicating more straight-line revenue is reasonably collectible than previously estimated and realized, the additional straight-line rental income is recognized as revenue. If our evaluation of tenant credit risk changes indicating a portion of realized straight-line rental income is no longer collectible, a reserve and bad debt expense is recorded. At December 31, 2008 and 2007, accounts receivable include approximately $37.2 million and $32.0 million, respectively, related to straight-line rents. At December 31, 2008 and 2007, our allowance for doubtful accounts was $11.8 million and $7.0 million, respectively.

Real Estate

Land, buildings and improvements are recorded at cost. Depreciation is computed using the straight-line method. Estimated useful lives range generally from 35 years to a maximum of 50 years on buildings and major improvements. Minor improvements, furniture and equipment are capitalized and depreciated over useful lives ranging from 3 to 20 years. Maintenance and repairs that do not improve or extend the useful lives of the related assets are charged to operations as incurred. Tenant improvements are capitalized and depreciated over the life of the related lease or their estimated useful life, whichever is shorter. If a tenant vacates its space prior to contractual termination of its lease, the undepreciated balance of any tenant improvements are written off if they are replaced or have no future value. In 2008, 2007 and 2006, depreciation expense was $101.3 million, $96.5 million and $89.6 million, respectively, including amounts included in discontinued operations and assets under capital lease obligations.

In accordance with Statement of Financial Accounting Standard (“SFAS”) No. 66, “Accounting for Sales of Real Estate,” sales are recognized at closing only when sufficient down payments have been obtained, possession and other attributes of ownership have been transferred to the buyer and we have no significant continuing involvement. The application of SFAS No. 66 can be complex and requires us to make assumptions. We believe the criteria of SFAS No. 66 was met for all real estate sold during 2008, 2007 and 2006.

In accordance with SFAS No. 141, “Business Combinations,” our methodology of allocating the cost of acquisitions to assets acquired and liabilities assumed is based on estimated fair values, replacement cost and appraised values. When we acquire operating real estate properties, the purchase price is allocated to land and buildings, intangibles such as in-place leases and to current assets and liabilities acquired, if any. The value allocated to in-place leases is amortized over the related lease term and reflected as rental income in the statement of operations. If a tenant vacates its space prior to contractual termination of its lease, the unamortized balance of any in-place lease value is written off to rental income.

We are the lessee of certain land and buildings. We classify our leases of land and building as operating or capital leases in accordance with the provisions of SFAS No. 13, “Accounting for Leases.”

 

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In accordance with SFAS No. 67, “Accounting for Costs and Initial Rental Operations of Real Estate Projects,” we capitalize certain costs related to the development and redevelopment of real estate including pre-construction costs, real estate taxes, insurance, construction costs and salaries and related costs of personnel directly involved. Additionally, in accordance with SFAS No. 34, “Capitalization of Interest Costs,” we capitalize interest costs related to development and redevelopment activities. Capitalization of these costs begin when the activities and related expenditures commence and cease when the project is substantially complete and ready for its intended use at which time the project is placed-in service and depreciation commences.

In accordance with SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” we review for impairment on a property by property basis. Impairment is recognized on properties held for use when the expected undiscounted cash flows for a property are less than its carrying amount at which time the property is written-down to fair value. Properties held for sale are recorded at the lower of the carrying amount or the expected sales price less costs to sell. SFAS No. 144 also requires the sale or disposal of a “component of an entity” to be treated as discontinued operations. The properties sold by us typically meet the definition of a component of an entity and as such the revenues and expenses associated with sold properties are reclassified to discontinued operations for all periods presented.

In June 2006, we sold Greenlawn Plaza to our unconsolidated real estate partnership resulting in a gain of $7.4 million. Due to our continuing involvement in the property, Greenlawn Plaza did not qualify for discontinued operations classification under SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets.” Accordingly, the results of operations through the date of sale are included in continuing operations and the gain on sale is included in “gain on sale of real estate.”

Cash and Cash Equivalents

We define cash and cash equivalents as cash on hand, demand deposits with financial institutions and short term liquid investments with an initial maturity under three months. Cash balances in individual banks may exceed insurable amounts.

Prepaid Expenses and Other Assets

Prepaid expenses and other assets consist primarily of lease costs, prepaid property taxes and acquired above market leases. Capitalized lease costs are direct costs incurred which were essential to originate a lease and would not have been incurred had the leasing transaction not taken place and include third party commissions and salaries and related costs of personnel directly related to time spent obtaining a lease. Capitalized lease costs are amortized over the life of the related lease. If a tenant vacates its space prior to the contractual termination of its lease, the unamortized balance of any lease costs are written off. Other assets also include the premiums paid for split dollar life insurance covering several officers and former officers which were approximately $4.6 million at December 31, 2008 and 2007.

Debt Issuance Costs

Costs related to the issuance of debt instruments are capitalized and are amortized as interest expense over the estimated life of the related issue using the straight-line method which approximates the effective interest method.

Derivative Instruments

We use derivative instruments to manage exposure to variable interest rate risk. We generally enter into interest rate swaps to manage our exposure to variable interest rate risk and treasury locks to manage the risk of interest rates rising prior to the issuance of debt. We enter into derivative instruments that qualify as cash flow hedges under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities” and do not enter into derivative instruments for speculative purposes. As of December 31, 2008 and 2007, we had no outstanding hedging instruments.

 

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Our cash flow hedges are recorded at fair value. We assess effectiveness of our cash flow hedges both at inception and on an ongoing basis. The effective portion of changes in fair value of our cash flow hedges is recorded in other comprehensive income, and the ineffective portion of changes in fair value of our cash flow hedges is recognized in earnings in the period affected. Hedge ineffectiveness did not have a significant impact on earnings in 2008, 2007 and 2006, and we do not anticipate it will have a significant effect in the future.

Acquisition, Development and Construction Loan Arrangements

We have made certain mortgage loans that, because of their nature, qualify as loan receivables. At the time the loans were made, we did not intend for the arrangement to be anything other than a financing and did not contemplate a real estate investment. Using guidance set forth in the Third Notice to Practitioners issued by the AICPA in February 1986 entitled “ADC Arrangements” (“the Third Notice”), we evaluate each investment to determine whether the loan arrangement qualifies under the Third Notice as a loan, joint venture or real estate investment and the appropriate accounting thereon. Such determination affects our balance sheet classification of these investments and the recognition of interest income derived therefrom. Generally, we receive additional interest on these loans, however we never receive in excess of 50% of the residual profit in the project (as defined in the Third Notice) and because the borrower has either a substantial investment in the project or has guaranteed all or a portion of our loan (or a combination thereof) the loans qualify for loan accounting. The amounts under ADC arrangements are presented as mortgage notes receivable at December 31, 2008 and 2007.

Share Based Compensation

Effective January 1, 2006, we adopted the fair value recognition provisions of SFAS No. 123(R), “Share-Based Payment,” using the modified-prospective-transition method. Under this transition method, compensation cost recognized beginning January 1, 2006 includes: (a) compensation costs for all share-based payments granted prior to, but not vested as of January 1, 2006, based on the grant date fair value estimated in accordance with the original provisions of SFAS No. 123, and (b) compensation cost for all share-based payments granted subsequent to January 1, 2006, based on the grant date fair value estimated in accordance with the provisions of SFAS No. 123(R).

On January 1, 2006, we recorded the cumulative effect of adopting SFAS No. 123(R). This cumulative effect resulted in decreasing accrued liabilities by $3.3 million and increasing shareholders’ equity by $3.3 million. These balance sheet changes related to deferred compensation on unvested shares. Under SFAS No. 123(R), deferred compensation is no longer recorded at the time unvested shares are issued. Share-based compensation expense is now recorded over the requisite service period with an offsetting credit to equity (generally additional paid-in capital).

Redemption of Preferred Stock

On November 27, 2006, we redeemed our $135 million 8.5% Series B Cumulative Redeemable Preferred Shares at their face value. The original issuance costs of $4.8 million were charged to shareholders’ equity when the shares were issued. On July 31, 2003, the Emerging Issues Task Force provided clarification on the treatment of the difference between the redemption value and the carrying value, adjusting for issuance costs, for GAAP financial reporting. As a result, our Consolidated Statement of Operations for the year ended December 31, 2006 reflects a charge of $4.8 million in “Preferred stock redemption costs” as a reduction of net income in computing net income available for common shareholders.

Variable Interest Entities

In January 2003, the Financial Accounting Standards Board (“FASB”) issued FASB Interpretation No. 46 (revised December 2003) (“FIN 46-R”), “Consolidation of Variable Interest Entities.” FIN 46-R clarifies the application of Accounting Research Bulletin 51, Consolidated Financial Statements, for certain entities that do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial

 

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support from other parties or in which equity investors do not have the characteristics of a controlling financial interest (“variable interest entities”). Variable interest entities within the scope of FIN 46-R are required to be consolidated by their primary beneficiary. The primary beneficiary of a variable interest entity is determined to be the party that absorbs a majority of the entity’s expected losses, receives a majority of its expected returns, or both. We have evaluated the applicability of FIN 46-R to our investments in certain joint ventures including our real estate partnership with affiliates of a discretionary fund created and advised by ING Clarion Partners and determined that these joint ventures do not meet the requirements of a variable interest entity and, therefore, consolidation of these ventures is not required. These investments are accounted for using the equity method. We have also evaluated the applicability of FIN 46-R to our mortgage loans receivable and determined that they are not variable interest entities. Our investment balances from our real estate partnership and mortgage notes receivable are presented in our consolidated balance sheets.

On October 16, 2006, we acquired the leasehold interest in Melville Mall under a 20 year master lease. Additionally, we loaned the owner of Melville Mall $34.2 million secured by a second mortgage on the property. We have an option to purchase the shopping center on or after October 16, 2021 for a price of $5.0 million plus the assumption of the first mortgage and repayment of the second mortgage. We have determined that this property is held in a variable interest entity for which we are the primary beneficiary. Accordingly, beginning October 16, 2006, we consolidated this property and its operations. As of December 31, 2008 and 2007, $24.5 million and $25.1 million, respectively, is included in mortgages payable for the mortgage loan secured by Melville Mall, however, the loan is not our legal obligation. At December 31, 2008, net real estate assets related to Melville Mall included in our consolidated balance sheet are approximately $66.5 million.

In conjunction with the acquisitions of several of our properties, we entered into Reverse Section 1031 like-kind exchange agreements with a third party intermediary. The exchange agreements are for a maximum of 180 days and allow us, for tax purposes, to defer gains on sale of other properties sold within this period. Until the earlier of termination of the exchange agreements or 180 days after the respective acquisition dates, the third party intermediary is the legal owner of each property, although we control each property and retain all of the economic benefits and risks associated with the property. Each property is held by a third party intermediary in a variable interest entity for which we are the primary beneficiary. Accordingly, we consolidate these properties and their operations even during the period they are held by a third party intermediary.

From December 29, 2005 to June 5, 2006, a third party intermediary was the legal owner of Crow Canyon Commons, but we controlled the property and retained all of the economic benefit and risk associated with the property. Accordingly, we consolidated the property and its operations beginning December 29, 2005.

From May 30, 2007 to October 11, 2007, a third party intermediary was the legal owner of Shoppers’ World, but we controlled the property and retained all of the economic benefit and risk associated with the property. Accordingly, we consolidated the property and its operations beginning May 30, 2007.

From May 30, 2008 to November 25, 2008, a third party intermediary was the legal owner of Del Mar Village, but we controlled the property and retained all of the economic benefit and risk associated with the property. Accordingly, we consolidated the property and its operations beginning May 30, 2008.

Effective on July 11, 2008 with the acquisition of 7015 & 7045 Beracasa Way and September 4, 2008 with the acquisition of Courtyard Shops, a third party intermediary was the legal owner of the respective property. Since we control both properties and retain all economic benefits and risks associated with the properties, we consolidated the properties and their operations effective on their respective acquisition dates. Quantitative information regarding significant assets and liabilities of these variable interest entities is included in Note 2 and Note 6 to these consolidated financial statements.

 

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Accounting for Income Taxes

In July 2006, the FASB issued FASB Interpretation No. 48 (“FIN 48”), “Accounting for Uncertainty in Income Taxes” which is an interpretation of FASB Statement No. 109, “Accounting for Income Taxes.” FIN 48 was issued to reduce the diversity in practice associated with certain aspects of recognition, disclosure and measurement related to accounting for uncertain income tax positions. We adopted FIN 48 effective January 1, 2007. The adoption of FIN 48 did not have a material impact on our financial position, results of operations, or cash flows. We recognize penalties and interest accrued related to unrecognized tax benefits as income tax expense. With few exceptions, we are no longer subject to U.S. federal, state, and local tax examinations by tax authorities for years before 2003. As of December 31, 2008 and 2007, we had no material unrecognized tax benefits.

New Accounting Pronouncements

In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements” (“SFAS No. 157”). SFAS No. 157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles, and expands disclosures about fair value measurements. SFAS No. 157 applies to accounting pronouncements that require or permit fair value measurements, except for share-based payments under SFAS No. 123(R). We adopted the recognition and disclosure provisions of SFAS No. 157 for financial assets and financial liabilities and for nonfinancial assets and nonfinancial liabilities that are re-measured at least annually effective January 1, 2008; the adoption did not have a material impact on our financial position, results of operations or cash flows. In accordance with FSP SFAS No. 157-2, “Effective Date of FASB Statement No. 157”, we are required to adopt the provisions of SFAS No. 157 for all other nonfinancial assets and nonfinancial liabilities effective January 1, 2009 and do not expect the adoption to have a material impact on our financial position, results of operations or cash flows.

SFAS No. 157 establishes a hierarchy for inputs used in measuring fair value as follows:

 

  1. Level 1 Inputs—quoted prices in active markets for identical assets or liabilities

 

  2. Level 2 Inputs—observable inputs other than quoted prices in active markets for identical assets and liabilities

 

  3. Level 3 Inputs—unobservable inputs

In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, for disclosure purposes, the level within which the fair value measurement is categorized is based on the lowest level input that is significant to the fair value measurement. Our derivative instruments, as further discussed in Note 6, were measured using Level 2 inputs.

In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities Including an Amendment of FASB Statement No. 115” (“SFAS No. 159”). This standard permits entities to choose to measure many financial instruments and certain other items at fair value and is effective for the first fiscal year beginning after November 15, 2007. We did not make this fair value election when we adopted SFAS No. 159 effective January 1, 2008, and, therefore, it did not have an impact on our financial position, results of operations, or cash flows.

On December 4, 2007, the FASB issued Statement No. 141 (R), “Business Combinations” (“SFAS No. 141 (R)”). SFAS No. 141 (R) broadens and clarifies the definition of a business which will result in significantly more of our acquisitions being treated as business combinations rather than asset acquisitions. FAS 141 (R) is effective for business combinations for which the acquisition date is on or after January 1, 2009. Early adoption is not permitted and therefore, this will only impact prospective acquisitions with no change to the accounting for acquisitions completed prior to or on December 31, 2008. The new standard requires us to expense as incurred all acquisition related transaction costs which could include broker fees, transfer taxes, legal, accounting, valuation,

 

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and other professional and consulting fees; for acquisitions prior to January 1, 2009, these costs were capitalized as part of the acquisition cost. The impact to our financial statements will vary significantly depending on the number of acquisitions, size of the acquisitions, and location of the acquisitions. Based on acquisitions in the last three years, transaction costs for single asset acquisitions typically ranged from $0.1 million to $1.0 million with significantly higher transaction costs for an acquisition of a larger portfolio. The new standard includes several other changes to the accounting for business combinations including requiring contingent consideration to be measured at fair value at acquisition and subsequently remeasured through the income statement if accounted for as a liability as the fair value changes, any adjustments during the purchase price allocation period to be “pushed back” to the acquisition date with prior periods being adjusted for any changes, and the business combination to be accounted for on the acquisition date or the date control is obtained. During 2008, we expensed all acquisition related costs for acquisitions which did not close prior to December 31, 2008.

On December 4, 2007, the FASB issued Statement No. 160, “Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB 51” (“SFAS No. 160”). The new standard significantly changes the accounting and reporting of minority interests in the consolidated financial statements. The new standard requires a non-controlling interest, which is currently referred to as a minority interest, to be recognized as a component of equity rather than included in the mezzanine section of the balance sheet where it is currently presented. The terminology “minority interest” is changed to “noncontrolling interest”. The “minority interest” caption on the statement of operations will be reflected as “net income attributable to the noncontrolling interests” and shown after consolidated net income and will be an adjustment to reconcile to net income. This is a presentation only change for minority interest on both the balance sheet and statement of operations and will have no impact to net income, total liabilities and equity, and earnings per share. The statement also requires the recognition of 100% of the fair values of assets acquired and liabilities assumed in acquisitions of less than 100% controlling interest with subsequent acquisitions of the non-controlling interest recorded as equity transactions. SFAS No. 160 is effective January 1, 2009 and is to be applied prospectively except for the presentation changes to the balance sheet and income statement which will be applied retrospectively in the 2009 financial statements. Effective January 1, 2009, we will reclassify $32.4 million from the mezzanine section of the balance sheet to shareholders’ equity. The additional impact on the financial statements will vary depending on the level of transactions with entities involving non-controlling interests.

In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement No. 133” (“SFAS No. 161”). SFAS No. 161 requires enhanced disclosures about an entity’s derivative instruments and hedging activities and is effective for fiscal years beginning after November 15, 2008. We do not expect the adoption of SFAS No. 161 to have a material impact on our consolidated financial statements.

In June 2008, the FASB issued FSP EITF No. 03-6-1, “Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities” (“FSP EITF No. 03-6-1”). Under the FSP, unvested share-based payment awards that contain non-forfeitable rights to receive dividends (whether paid or unpaid) are participating securities, and should be included in computation of EPS pursuant to the two-class method. As part of our stock based compensation program, we issue restricted shares which vest over a three to six year period; these shares have non-forfeitable rights to dividends immediately after issuance. We currently exclude the unvested shares from the basic EPS calculation and include them using the treasury stock method in diluted earnings per share. We expect the adoption of FSP EITF No. 03-6-1 to result in a minimal decrease to our basic and diluted earnings per share calculations for all periods presented. The FSP is effective for fiscal years beginning after December 15, 2008 and will require retrospective application to all prior period EPS data presented in the financial statements; early adoption is not permitted.

In November 2008, the EITF issued Issue 08-6, “Equity Method Investment Accounting Considerations” (“EITF 08-6”), which clarified the accounting for certain transactions and impairment considerations involving equity method investments. EITF 08-6 clarified that equity method investments should initially be measured at cost, the issuance of shares by the investee would result in a gain or loss on issuance of shares reflected in the income statement of the equity investor, and that a loss in value of an equity investment which is other than a

 

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temporary decline should be recognized in accordance with APB 18, “The Equity Method of Accounting for Investments in Common Stock”. The consensus is effective on a prospective basis beginning on January 1, 2009; we do not expect EITF 08-6 to have a material impact on our financial position, results of operations, or cash flows.

Consolidated Statements of Cash Flows – Supplemental Disclosures

The following table provides additional information related to the Consolidated Statements of Cash Flows:

 

     2008     2007     2006  
     (In thousands)  

SUPPLEMENTAL DISCLOSURES:

      

Total interest costs incurred

   $ 104,464     $ 125,259     $ 106,877  

Interest capitalized

     (5,301 )     (7,865 )     (4,069 )

Interest expense related to discontinued operations

     —         (6,029 )     (7,574 )
                        

Interest expense

   $ 99,163     $ 111,365     $ 95,234  
                        

Cash paid for interest, net of amounts capitalized

   $ 95,897     $ 117,125     $ 91,484  
                        

Cash paid for income taxes

   $ 444     $ 1,427     $ 5,098 (1)
                        

NON-CASH INVESTING AND FINANCING TRANSACTIONS:

      

Mortgage loans assumed with acquisitions

   $ 32,452     $ 79,987     $ 44,297  

Extinguishment of capital lease obligations

   $ 11,545     $ 76,449     $ —    

Note payable issued with acquisitions

   $ 2,221     $ —       $ —    

Common shares issued with acquisitions

   $ —       $ 77,957     $ —    

DownREIT operating partnership units issued with acquisitions

   $ —       $ 16,358     $ —    

Preferred shares issued with acquisitions

   $ —       $ 9,997     $ —    

 

(1) Cash paid for income taxes for 2006 includes $4.1 million related to the sales of condominiums at Santana Row which were conducted through a TRS.

NOTE 2.   REAL ESTATE

A summary of our real estate investments and related encumbrances is as follows:

 

     Cost    Accumulated
Depreciation and
Amortization
    Encumbrances
     (In thousands)

December 31, 2008

               

Retail and mixed-use properties

   $ 3,530,539    $ (811,636 )   $ 389,318

Retail properties under capital leases

     115,784      (25,556 )     63,492

Residential

     27,362      (9,066 )     —  
                     
   $ 3,673,685    $ (846,258 )   $ 452,810
                     

December 31, 2007

               

Retail and mixed-use properties

   $ 3,224,196    $ (717,257 )   $ 373,975

Retail properties under capital leases

     201,544      (30,957 )     76,109

Residential

     27,107      (8,489 )     —  
                     
   $ 3,452,847    $ (756,703 )   $ 450,084
                     

Retail and mixed-use properties includes the residential portion of Santana Row and for 2008, Arlington East (Bethesda Row). The residential property investments are comprised of our investments in Rollingwood Apartments and Crest Apartments at Congressional Plaza.

 

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A summary of our significant acquisitions in 2008 and 2007 is as follows:

 

Date

  Property   City, State   Gross
Leasable Area
  Purchase
Price
 
            (In square feet)   (In millions)  

Year ended December 31, 2008

             

May 30

  Del Mar Village   Boca Raton, FL   154,000   $ 41.7 (1)

July 11

  7015 & 7045 Beracasa Way   Boca Raton, FL   24,000     6.7 (2)

July 16

  Chelsea Commons Phase II   Chelsea, MA   26,000     8.0 (3)

September 4

  Courtyard Shops   Wellington, FL   127,000     37.9 (4)

September 25 and 30

  Bethesda Row   Bethesda, MD   N/A     38.8 (5)
               
    Total   331,000   $ 133.1  
               

Year ended December 31, 2007

             

February 28

  Crow Canyon Crest   San Ramon, CA   17,000   $ 10.9 (6)

March 8

  The White Marsh Portfolio:(7)   White Marsh, MD       189.4 (8)
         THE AVENUE at White Marsh     296,000  
         The Shoppes at Nottingham Square     186,000  
         White Marsh Plaza     79,000  
         White Marsh Other     53,000  

May 30

  Shoppers’ World   Charlottesville, VA   169,000     27.2 (9)

October 26

  Mid-Pike Plaza   Rockville, MD   —       45.2 (10)

October 26

  Huntington Shopping Center   Huntington, NY   —       37.7 (10)
               
    Total   800,000   $ 310.4  
               

 

(1) Approximately $1.7 million and $7.4 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively.
(2) Approximately $0.2 million of the net assets acquired were allocated to other assets for “above market leases”. The two buildings acquired are adjacent to our Del Mar Village shopping center.
(3) Approximately $0.2 million and $0.3 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively. This property includes four pad sites that are adjacent to our Chelsea Commons property.
(4) Approximately $0.6 million and $1.0 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively.
(5) On September 25 and 30, 2008, we completed exchange transactions whereby we sold our fee interest in four land parcels that were subject to long-term ground leases with tenants and acquired the fee interest in two land parcels under our Bethesda Row property. Prior to the transactions, the land parcels at Bethesda Row were encumbered by capital lease obligations which were extinguished as part of the transactions. The transactions were completed as 1031 tax deferred exchange transactions and involved net cash paid to us of $23.2 million.
(6) Approximately $0.4 million and $1.8 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively.
(7) The White Marsh Portfolio was purchased using $11.5 million of cash plus a combination of common stock and convertible preferred stock, downREIT operating partnership units, and the assumption of mortgage loans through a merger with Nottingham Properties, Inc. The acquisition also included ground leases covering 50,000 square feet of office space and a hotel which are not included in gross leasable area.
(8) Approximately $3.6 million and $9.3 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively.
(9) Approximately $0.8 million and $2.1 million of the net assets acquired were allocated to other assets for “above market leases” and liabilities for “below market leases,” respectively.
(10) On October 26, 2007, we completed an exchange transaction whereby we sold our leasehold interests in six New Jersey properties and acquired the fee interests in Mid-Pike Plaza and Huntington Shopping Center. Prior to the transaction, we held leasehold interests in all eight properties. The transaction was completed as a 1031 tax-deferred exchange and involved a cash payment of $17.2 million. All eight properties were previously encumbered by capital lease obligations which were extinguished as part of the transaction.

 

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On November 16, 2007, we purchased the 10% minority interest in three properties located at our Fifth Avenue, Hermosa Avenue and Third Street Promenade projects for $5.7 million. We now own 100% of these properties.

A summary of our significant dispositions in 2008 and 2007 is as follows:

 

Sale Date

  Property  

Location

  Year
Acquired
or Built
  Gross
Leasable
Area
    Sales
Price
  Gain  
                (In square feet)     (In millions)  

Year ended December 31, 2008

                       

September 25 and 30

  Four Land Parcels:(1)         $ 38.8   $ 0.9  
          The Shoppes at Nottingham Square   White Marsh, MD   2007   134,000      
          White Marsh Other   White Marsh, MD   2007   N/A (2)    
          White Marsh Other   White Marsh, MD   2007   3,000      
          North Dartmouth   North Dartmouth, MA   2006   135,000      

December 29

  Greenwich Avenue   Greenwich, CT   1995   7,000       7.2     5.2 (3)
                         
    Total     279,000     $ 46.0   $ 6.1  
                         

Year ended December 31, 2007

                       

April 5

  Bath Shopping Center   Bath, ME   2006   101,000     $ 21.8   $ 0.6 (4)

June 20

  Key Road Plaza   Keene, NH   2006   76,000       15.3     0.4 (5)

June 20

  Riverside Plaza   Keene, NH   2006   218,000       25.9     0.5 (6)

October 11

  Forest Hills   Forest Hills, NY   1997   39,500       33.2     19.1 (7)

October 26

  New Jersey Leasehold Interests:           65.7     79.6 (8)
          Allwood Shopping Center   Clifton, NJ   1988   50,000      
          Blue Star Shopping Center   Watchung, NJ   1988   410,000      
          Brunswick Shopping Center   North Brunswick, NJ   1988   303,000      
          Clifton Shopping Center   Clifton, NJ   1988   80,000      
          Hamilton Shopping Center   Hamilton, NJ   1988   190,000      
          Rutgers Shopping Center   Franklin, NJ   1988   267,000      
                         
    Total     1,734,500     $ 161.9   $ 100.2  
                         

 

(1) On September 25 and 30, 2008, we completed exchange transactions whereby we sold our fee interest in four land parcels that were subject to long-term ground leases with tenants and acquired the fee interest in two land parcels under our Bethesda Row property. Three of the land parcels we sold were in White Marsh, MD, and one parcel was in North Dartmouth, MA. The transactions were completed as 1031 tax deferred exchange transactions and involved net cash paid to us of $23.2 million.
(2) This land parcel was subject to a ground lease covering 50,000 square feet of office space not included in our gross leasable area.
(3) We sold one of two retail buildings located in Greenwich, CT.
(4) Gain of $0.6 million is net of $0.3 million in taxes.
(5) Gain of $0.4 million is net of $0.1 million in taxes.
(6) Gain of $0.5 million is net of $0.1 million in taxes.
(7) We sold two of three retail buildings located in Forest Hills, NY.
(8) On October 26, 2007, we completed an exchange transaction whereby we sold our leasehold interests in six New Jersey properties and acquired the fee interests in Mid-Pike Plaza and Huntington Shopping Center. The transaction was completed as a 1031 tax-deferred exchange and involved a cash payment of $17.2 million. All eight properties were previously encumbered by capital lease obligations which were extinguished as part of the transaction.

 

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NOTE 3.   MORTGAGE NOTES RECEIVABLE

At December 31, 2008 and 2007, we had mortgage notes receivable with an aggregate carrying amount of $45.8 million and $40.6 million, respectively, which are net of a valuation allowance of $4.2 million and $4.6 million, respectively. These mortgage notes are due over various terms from November 2009 to May 2021. At December 31, 2008 and 2007, our mortgages had a weighted average interest rate of 9.9%. Interest income is accrued as earned. Under the terms of certain of these mortgages, we receive additional interest based upon the gross income of the secured properties and, upon sale of the properties, we will share in the appreciation of the properties.

On November 5, 2008, we entered into an agreement to loan a third party up to $7.3 million which is secured by two properties. The loan has an initial term of one year and bears interest at LIBOR plus 725 basis points at a minimum of 10.0%. The borrower has two one-year extension options with interest at LIBOR plus 925 basis points at a minimum of 12.0%. Interest is due monthly in arrears and is payable out of net cash flow from the two properties. Any unpaid interest is due at maturity. The loan can be repaid at any time prior to maturity without penalty. As of December 31, 2008, we have funded $5.5 million to the borrower which is secured by one property.

NOTE 4.   REAL ESTATE PARTNERSHIP

We have a joint venture arrangement (“the Partnership”) with affiliates of a discretionary fund created and advised by ING Clarion Partners (“Clarion”). We own 30% of the equity in the Partnership, and Clarion owns 70%. As of December 31, 2008, the Partnership owned seven retail real estate projects. We are the manager of the Partnership and its properties, earning fees for acquisitions, dispositions, management, leasing, and financing. We also have the opportunity to receive performance-based earnings through our Partnership interest. As of December 31, 2008, we have made total contributions of $34.8 million and received total distributions of $6.4 million. We account for our interest in the Partnership using the equity method.

The following tables provide summarized operating results and the financial position of the Partnership:

 

     Year Ended December 31,
     2008    2007    2006
     (In thousands)

OPERATING RESULTS

        

Revenue

   $ 19,111    $ 17,566    $ 10,523

Expenses

        

Other operating expenses

     5,185      4,478      2,828

Depreciation and amortization

     4,792      4,471      2,767

Interest expense

     4,537      4,478      3,506
                    

Total expenses

     14,514      13,427      9,101
                    

Net income

   $ 4,597    $ 4,139    $ 1,422
                    

Our share of net income from real estate partnership

   $ 1,612    $ 1,395    $ 656
                    

 

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     December 31,
     2008    2007
     (In thousands)

BALANCE SHEETS

     

Real estate, net

   $ 187,910    $ 191,747

Cash

     2,604      1,453

Other assets

     7,066      7,173
             

Total assets

   $ 197,580    $ 200,373
             

Mortgages payable

   $ 81,365    $ 81,540

Other liabilities

     7,363      8,691

Partners’ capital

     108,852      110,142
             

Total liabilities and partners’ capital

   $ 197,580    $ 200,373
             

Our share of unconsolidated debt

   $ 24,410    $ 24,462
             

Our investment in real estate partnership

   $ 29,252    $ 29,646
             

Our unconsolidated real estate partnership made no acquisitions in 2008. The following table provides a summary of acquisitions made by our unconsolidated real estate partnership in 2007:

 

Date

  

Property

   City, State    Gross
Leasable Area
   Purchase
Price
               (In square feet)    (In millions)

February 15

   Free State Shopping Center    Bowie, MD    278,000    $ 64.1

February 20

   Lake Barcroft Shopping Center(1)    Falls Church, VA    9,000      6.0
                 
      Total    287,000    $ 70.1
                 

 

(1) The property acquired is adjacent to and operated as part of Barcroft Plaza which is also owned by the Partnership.

On April 10, 2007, our unconsolidated real estate partnership entered into a mortgage note for approximately $4.2 million. The mortgage note is secured by the Lake Barcroft property, which was acquired in February 2007, and by Barcroft Plaza. The Lake Barcroft property is adjacent to and operated as part of Barcroft Plaza. The note matures on July 1, 2016, bears interest at 5.71% per annum and requires monthly payments of interest only.

NOTE 5.   ACQUIRED IN-PLACE LEASES

Acquired above market leases are included in prepaid expenses and other assets and had a balance of $19.1 million and $17.6 million at December 31, 2008 and 2007, respectively, and accumulated amortization of $6.6 million and $4.7 million at December 31, 2008 and 2007, respectively. Acquired below market leases are included in other liabilities and deferred credits and had a balance of $53.1 million and $46.0 million at December 31, 2008 and 2007, respectively, and accumulated amortization of $16.6 million and $13.3 million at December 31, 2008 and 2007, respectively. The value allocated to in-place leases is amortized over the related lease term and reflected as additional rental income for below market leases or a reduction of rental income for above market leases in the statement of operations. Rental income included net amortization from acquired in-place leases of $2.2 million, $2.9 million and $2.5 million in 2008, 2007 and 2006, respectively. The remaining weighted-average amortization period as of December 31, 2008, is 8.9 years and 14.9 years for above market leases and below market leases, respectively.

 

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The amortization for acquired in-place leases during the next five years and thereafter, assuming no early lease terminations, is as follows:

 

     Above Market
Leases
   Below Market
Leases
     (In thousands)

Year ending December 31,

     

2009

   $ 2,247    $ 4,055

2010

     1,871      3,437

2011

     1,550      3,100

2012

     1,175      2,805

2013

     881      2,396

Thereafter

     4,787      20,669
             
   $ 12,511    $ 36,462
             

 

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NOTE 6.   DEBT

The following is a summary of our total debt outstanding as of December 31, 2008 and 2007:

 

     Principal Balance as of
December 31,
    Stated
Interest Rate as of
December 31,
2008
    Maturity Date

Description of Debt

   2008     2007      
     (Dollars in thousands)      

Mortgage loans

      

Leesburg Plaza

   $ —       $ 9,631     6.510 %   October 1, 2008

164 E. Houston Street

     —         46     7.500 %   October 6, 2008

White Marsh Other

     —         1,149     6.060 %   December 31, 2008

Mercer Mall

     4,370       4,441     8.375 %   April 1, 2009

Federal Plaza

     33,128       33,675     6.750 %   June 1, 2011

Tysons Station

     6,070       6,217     7.400 %   September 1, 2011

Courtyard Shops

     7,731       —       6.870 %   July 1, 2012

Bethesda Row

     19,996       —       5.370 %   January 1, 2013

Bethesda Row

     4,437       —       5.050 %   February 1, 2013

White Marsh Plaza

     10,122       10,350     6.040 %   April 1, 2013

Crow Canyon

     21,214       21,588     5.400 %   August 11, 2013

Melville Mall

     24,456       25,095     5.250 %   September 1, 2014

THE AVENUE at White Marsh

     60,016       61,035     5.460 %   January 1, 2015

Barracks Road

     41,368       41,988     7.950 %   November 1, 2015

Hauppauge

     15,595       15,828     7.950 %   November 1, 2015

Lawrence Park

     29,322       29,761     7.950 %   November 1, 2015

Wildwood

     25,773       26,159     7.950 %   November 1, 2015

Wynnewood

     29,882       30,330     7.950 %   November 1, 2015

Brick Plaza

     30,633       31,128     7.415 %   November 1, 2015

Shoppers’ World

     5,865       5,980     5.910 %   January 31, 2021

Mount Vernon

     11,640       11,962     5.660 %   April 15, 2028

Chelsea

     8,101       8,240     5.360 %   January 15, 2031
                    

Subtotal

     389,719       374,603      

Net unamortized discount

     (401 )     (628 )    
                    

Total mortgage loans

     389,318       373,975      
                    

Notes payable

      

Term loan

     200,000       200,000     LIBOR+0.575 %   November 6, 2009

Revolving credit facility

     123,500       —       LIBOR+0.425 %   July 27, 2010

Other

     2,296       —       6.500 %   April 1, 2012

Perring Plaza renovation

     1,195       1,420     10.000 %   January 31, 2013

Escondido (Municipal bonds)

     9,400       9,400     1.878 %   October 1, 2016
                    

Total notes payable

     336,391       210,820      
                    

Senior notes and debentures

      

8.75% notes

     175,000       175,000     8.750 %   December 1, 2009

4.50% notes

     75,000       75,000     4.500 %   February 15, 2011

6.00% notes

     175,000       175,000     6.000 %   July 15, 2012

5.40% notes

     135,000       135,000     5.400 %   December 1, 2013

5.65% notes

     125,000       125,000     5.650 %   June 1, 2016

6.20% notes

     200,000       200,000     6.200 %   January 15, 2017

7.48% debentures

     29,200       50,000     7.480 %   August 15, 2026

6.82% medium term notes

     40,000       40,000     6.820 %   August 1, 2027
                    

Subtotal

     954,200       975,000      

Net unamortized premium

     2,384       2,556      
                    

Total senior notes and debentures

     956,584       977,556      
                    

Capital lease obligations

     63,492       76,109     Various     Various through 2106
                    

Total debt and capital lease obligations

   $ 1,745,785     $ 1,638,460      
                    

 

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On February 21, 2008, we entered into two interest rate swap agreements to fix the variable portion of our $200 million term loan through November 6, 2008. The first swap fixed the variable rate at 2.725% on a notional amount of $100 million and the second swap fixed the variable rate at 2.852% on a notional amount of $100 million for a combined fixed rate of 2.789%. Both swaps were designated and qualified as cash flow hedges and were recorded at fair value until the swaps ended on November 6, 2008.

On July 1, 2008, we repaid the $9.6 million mortgage loan on Leesburg Plaza which had an original maturity date of October 1, 2008. This loan was repaid with funds borrowed on our $300 million revolving credit facility.

On July 15, 2008, we exercised a one-year extension for our $200 million term loan extending the maturity date to November 6, 2009.

On August 15, 2008, one of the holders redeemed $20.8 million of the outstanding $50.0 million balance of our 7.48% debentures. The notice period for additional redemptions has expired. These debentures were repaid with funds borrowed on our $300 million revolving credit facility.

In connection with the acquisition of Courtyard Shops and two land parcels at Bethesda Row, we assumed three mortgage notes as follows:

 

Property

   Fair Value(1)    Maturity Date    Stated Annual Interest Rate  
     (In millions)            

Courtyard Shops

   $ 8.1    July 1, 2012    6.87 %

Bethesda Row

   $ 20.0    January 1, 2013    5.37 %

Bethesda Row

   $ 4.4    February 1, 2013    5.05 %

 

(1) The aggregate face amount of the mortgage notes is $32.2 million. However, in accordance with GAAP, these mortgage notes were recorded at their aggregate fair value of $32.5 million.

On September 25 and 30, 2008, we acquired the fee interest in two land parcels under our Bethesda Row property. Prior to the transactions, we had capital lease obligations totaling $11.5 million on the two land parcels which were extinguished as part of the transactions.

On December 31, 2008, we repaid the $1.1 million mortgage loan on one of our properties in White Marsh, MD, on its maturity date. This loan was repaid with funds borrowed on our $300 million revolving credit facility.

The maximum amount of borrowings outstanding under our $300 million revolving credit facility during 2008, 2007 and 2006 was $159.0 million, $244.0 million and $297.0 million, respectively. The weighted average amount of borrowings outstanding was $61.4 million, $154.3 million and $106.0 million for 2008, 2007 and 2006, respectively. Our revolving credit facility had a weighted average interest rate, before amortization of debt fees, of 3.0%, 5.6% and 5.6% for 2008, 2007 and 2006, respectively. In addition, we are required to pay an annual facility fee of $0.5 million. The loan matures on July 27, 2010, subject to a one-year extension at our option.

Our credit facility and certain notes require us to comply with various financial covenants, including the maintenance of minimum shareholder’s equity and debt coverage ratios and a maximum ratio of debt to net worth. As of December 31, 2008, we were in compliance with all loan covenants.

 

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Scheduled principal payments on mortgage loans, notes payable, senior notes and debentures as of December 31, 2008 are as follows:

 

     Mortgage
Loans
   Notes
Payable
    Senior Notes and
Debentures
   Total
Principal
 
     (In thousands)  

Year ending December 31,

          

2009

   $ 11,389    $ 201,153     $ 175,000    $ 387,542  

2010

     7,714      124,361 (1)     —        132,075  

2011

     45,039      720       75,000      120,759  

2012

     14,662      727       175,000      190,389  

2013

     59,460      30       135,000      194,490  

Thereafter

     251,455      9,400       394,200      655,055  
                              
   $ 389,719    $ 336,391     $ 954,200    $ 1,680,310 (2)
                              

 

(1) Our $300 million four-year revolving credit facility matures on July 27, 2010, subject to a one-year extension at our option. As of December 31, 2008, there is $123.5 million drawn under this credit facility.
(2) The total debt maturities differs from the total reported on the consolidated balance sheet due to the unamortized discount or premium on certain senior notes, debentures and mortgage payables.

Future minimum lease payments and their present value for property under capital leases as of December 31, 2008, are as follows:

 

     (In thousands)  

Year Ending December 31,

  

2009

   $ 5,590  

2010

     5,590  

2011

     5,590  

2012

     5,599  

2013

     5,602  

Thereafter

     154,040  
        
     182,011  

Less amount representing interest

     (118,519 )
        

Present value

   $ 63,492  
        

Certain of our capital lease obligations required payments based on the performance of the related properties in addition to the minimum payment amounts set forth above. The additional performance based payments were $4.1 million and $5.6 million in 2007 and 2006, respectively and are included in “discontinued operations—income.” All capital leases with performance based payments were extinguished in October 2007.

 

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NOTE 7.   FAIR VALUE OF FINANCIAL INSTRUMENTS

Except as disclosed below, the carrying amount of our financial instruments approximates their fair value. The fair value of our mortgages payable, notes payable, and senior notes and debentures is sensitive to fluctuations in interest rates. Quoted market prices were used to estimate the fair value of our marketable senior notes and debentures and discounted cash flow analysis is generally used to estimate the fair value of our mortgages and notes payable. Considerable judgment is necessary to estimate the fair value of financial instruments. The estimates of fair value presented herein are not necessarily indicative of the amounts that could be realized upon disposition of the financial instruments. A summary of the carrying amount and fair value of our mortgages payable, notes payable and senior notes and debentures is as follows:

 

     December 31, 2008    December 31, 2007
     Carrying
Value
   Fair Value    Carrying
Value
   Fair Value
     (In thousands)

Mortgages and notes payable

   $ 725,709    $ 722,908    $ 584,795    $ 603,200

Senior notes and debentures

   $ 956,584    $ 799,241    $ 977,556    $ 979,562

NOTE 8.   COMMITMENTS AND CONTINGENCIES

We are sometimes involved in lawsuits, warranty claims, and environmental matters arising in the ordinary course of business. Management makes assumptions and estimates concerning the likelihood and amount of any potential loss relating to these matters.

We are currently a party to various legal proceedings. Other than as described below, we do not believe that the ultimate outcome of these matters, either individually or in the aggregate, could have a material adverse effect on our financial position or overall trends in results of operations; however, litigation is subject to inherent uncertainties. Also under our leases, tenants are typically obligated to indemnify us from and against all liabilities, costs and expenses imposed upon or asserted against us (1) as owner of the properties due to certain matters relating to the operation of the properties by the tenant, and (2) where appropriate, due to certain matters relating to the ownership of the properties prior to their acquisition by us.

We have a litigation matter filed against us in May 2003 which alleges that a one page document entitled “Final Proposal,” which included language that it was subject to approval of formal documentation, constituted a ground lease of a parcel of property located adjacent to our Santana Row property and gave the plaintiff the option to require that we acquire the property at a price determined in accordance with a formula included in the “Final Proposal.” A trial as to liability only was held in June 2006 and a jury rendered a verdict against us. A trial on the issue of damages was held in April 2008; however, the judge has not yet issued a ruling. Reports from our experts and the plaintiff’s experts show potential damages ranging from $600,000 to $24 million. Pending the judge’s ruling, we cannot make a reasonable estimate of potential damages. We will evaluate whether to appeal the jury verdict after the judge issues his ruling on damages taking into account a variety of factors including the amount of damages awarded. If we choose not to appeal or we appeal and are not successful in overturning the jury verdict, we will be liable for damages. Depending on the amount of damages awarded, it is possible there could be a material adverse impact on our net income in the period in which it becomes both probable that we will have to pay the damages and such damages can be reasonably estimated. In any event, management does not believe that this matter will have a material impact on our financial position.

We are also involved in a litigation matter relating to a shopping center in New Jersey where a former tenant has alleged that we and our management agent acted improperly by failing to disclose a condemnation action at the property that was pending when the lease was signed. A trial as to liability only was concluded in April 2007, and in May 2008, a judgment was entered that ruled in our favor on certain legal issues and against us on other legal issues. In December 2008, we reached a settlement with the plaintiff of those matters where the court ruled against us and determined that we are liable. The total settlement amount was $2.3 million of which we paid $1.15 million and the third party management agent paid $1.15 million. We are currently in the process of

 

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settling the amount of the portion of the plaintiff’s legal fees which we are required to pay; we expect the amount to be approximately $1.0 million of which we will pay 50% and the third party management agent will pay 50%. Our share of the total estimated settlement of $1.6 million is included in “general and administrative expense” in the statement of operations.

We reserve for estimated losses, if any, associated with warranties given to a buyer at the time real estate is sold or other potential liabilities relating to that sale, taking any insurance policies into account. These warranties may extend up to ten years and require significant judgment. Any increases to our estimated warranty losses would usually result in a decrease in net income.

In 2005 and 2006, warranty reserves for condominium units sold at Santana Row were established to cover potential costs for materials, labor and other items associated with warranty-type claims that may arise within the ten-year statutorily mandated latent construction defect warranty period. In 2006 and 2007, we increased our warranty reserves by $2.5 million and $5.1 million, respectively, net of taxes, related to defective work done by third party contractors while upgrades were made to certain units being prepared for sale. During 2007 and 2008, we evaluated the potentially affected units, and as of December 31, 2008, have substantially completed the inspections and repairs. The extent of the damages encountered in the units and the resulting costs to repair varied considerably amongst the units. As a result, we have adjusted the warranty reserve to reflect the actual costs incurred related to these issues which is approximately $2.4 million, net of $1.5 million of taxes. The change in the reserve of $5.2 million is included in “Discontinued operations—gain on sale of real estate” in 2008. These amounts do not reflect any amounts we may recover in the future from insurance or the contractors responsible for the defective work. Due to the inherent uncertainty related to the recovery from insurance or the contractor, we are unable to estimate an expected recovery; any recovery will be reflected in our financial statements once the amount is determinable, considered probable, and collectible.

We are self-insured for general liability costs up to predetermined retained amounts per claim, and we believe that we maintain adequate accruals to cover our retained liability. We currently do not maintain third party stop-loss insurance policies to cover liability costs in excess of predetermined retained amounts. Our accrual for self-insurance liability is determined by management and is based on claims filed and an estimate of claims incurred but not yet reported. Management considers a number of factors, including third-party actuarial analysis and future increases in costs of claims, when making these determinations. If our liability costs exceed these accruals, it will reduce our net income.

At December 31, 2008 and 2007, our reserves for warranties and general liability costs were $8.6 million and $16.0 million, respectively. Any potential losses which exceed our estimates would result in a decrease in our net income. During 2008 and 2007, we made payments from these reserves of $2.5 million and $2.4 million, respectively. Although we consider the reserve to be adequate, there can be no assurance that the reserve will prove to be adequate over-time to cover losses due to the difference between the assumptions used to estimate the reserve and actual losses.

At December 31, 2008, we had letters of credit outstanding of approximately $10.5 million which are collateral for existing indebtedness and other obligations of the Trust.

Under the terms of the Congressional Plaza partnership agreement, from and after January 1, 1986, an unaffiliated third party has the right to require us and the two other minority partners to purchase between one-half to all of its 29.47% interest in Congressional Plaza at the interest’s then-current fair market value. Based on management’s current estimate of fair market value as of December 31, 2008, our estimated maximum liability upon exercise of the put option would range from approximately $42 million to $49 million.

Under the terms of one other partnership which owns a project in southern California, if certain leasing and revenue levels are obtained for the property owned by the partnership, the other partner may require us to purchase their partnership interest at a formula price based upon property operating income. The purchase price for the partnership will be paid using our common shares or, subject to certain conditions, cash. If the other partner does not redeem their interest, we may choose to purchase the limited partnership interest upon the same terms.

 

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Under the terms of various other partnership agreements for entities, the partners have the right to exchange their operating units for cash or the same number of our common shares, at our option. As of December 31, 2008, a total of 373,260 operating units are outstanding.

We have one ground lease in which the lessor has a put option, which would require us to purchase the property during the remaining lease term. If the lessor were to exercise this option in 2009, the purchase price would be approximately $7.1 million.

A master lease for Mercer Mall includes a fixed purchase price option for $55 million in 2023. If we fail to exercise our purchase option, the owner of Mercer Mall has a put option which would require us to purchase Mercer Mall for $60 million in 2025.

A master lease for Melville Mall includes a fixed purchase price option in 2021 for $5 million and the assumption of the owner’s debt which is $24.5 million at December 31, 2008. If we fail to exercise our purchase option, the owner of Melville Mall has a put option which would require us to purchase Melville Mall in 2023 for $5 million and the assumption of the owner’s debt.

As of December 31, 2008 in connection with renovation and development projects, the Trust has contractual obligations of approximately $52.5 million.

We are obligated under ground lease agreements on several shopping centers requiring minimum annual payments as follows, as of December 31, 2008:

 

     (In thousands)

Year Ending December 31,

  

2009

     3,122

2010

     3,131

2011

     3,167

2012

     3,056

2013

     3,064

Thereafter

     185,437
      
   $ 200,977
      

NOTE 9.   SHAREHOLDERS’ EQUITY

We have a Dividend Reinvestment Plan, whereby shareholders may use their dividends and optional cash payments to purchase shares. In 2008, 2007 and 2006, 39,343 shares, 32,615 shares, and 44,077 shares, respectively, were issued under the Plan.

On March 8, 2007, as part of the consideration to acquire the White Marsh portfolio, we issued (i) 884,066 common shares at $88.18 per share, par value $0.01 per share, (ii) 399,896 shares of 5.417% Series 1 Cumulative Convertible Preferred Shares (“Series 1 Preferred Shares”) at the liquidation preference of $25 per share, par value $0.01 per share, and (iii) 185,504 downREIT operating partnership units at $88.18 per share. The Series 1 Preferred Shares accrue dividends at a rate of 5.417% per year and are convertible at any time by the holders to our common shares at a conversion rate of $104.69 per share. The Series 1 Preferred Shares are also convertible under certain circumstances at our election. The holders of the Series 1 Preferred Shares have no voting rights.

On December 27, 2007, we issued 2.0 million common shares at $81.21 per share, for cash proceeds of approximately $162.4 million before other expenses of the offering. The proceeds were used to reduce the amount outstanding on our revolving credit facility.

 

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NOTE 10.   DIVIDENDS

A summary of dividends declared and paid per share is as follows:

 

     Year Ended December 31,  
     2008    2007    2006  
     Declared    Paid    Declared    Paid    Declared     Paid  

Common shares

   $ 2.520    $ 2.480    $ 2.370    $ 2.335    $ 2.460 (1)   $ 2.440 (1)

5.417% Series 1 Cumulative Convertible Preferred(2)

   $ 1.354    $ 1.354    $ 1.106    $ 0.767    $ —       $ —    

8.5% Series B Cumulative Redeemable Preferred(3)

   $ —      $ —      $ —      $ —      $ 1.753     $ 2.284  

 

(1) Includes a special dividend declared and paid of $0.20 resulting from the sales of condominiums at Santana Row.
(2) On March 8, 2007, as part of the consideration to acquire the White Marsh portfolio, we issued 399,896 shares of 5.417% Series 1 Cumulative Convertible Preferred shares. Dividends are paid on a quarterly basis at a rate of 5.417% per year.
(3) On November 27, 2006, the Trust redeemed all 5,400,000 outstanding shares of its Series B Cumulative Redeemable Preferred Shares. Dividends on the Series B Preferred Shares ceased to accrue on November 27, 2006.

A summary of the income tax status of dividends per share paid is as follows:

 

     Year Ended December 31,
     2008    2007    2006

Common shares

        

Ordinary dividend

   $ 2.455    $ 2.174    $ 1.813

Ordinary dividend eligible for 15% rate

     0.025      0.044      0.066

Return of capital

     —        —        0.561

Capital gain

     —        0.117      —  
                    
   $ 2.480    $ 2.335    $ 2.440
                    

5.417% Series 1 Cumulative Convertible Preferred

        

Ordinary dividend

   $ 1.341    $ 0.714    $ —  

Ordinary dividend eligible for 15% rate

     0.013      0.015      —  

Capital gain

     —        0.038      —  
                    
   $ 1.354    $ 0.767    $ —  
                    

8.5% Series B Cumulative Redeemable Preferred

        

Ordinary dividend

   $ —      $ —      $ 2.284

Capital gain

     —        —        —  
                    
   $ —      $ —      $ 2.284
                    

On October 29, 2008, the Trustees declared a quarterly cash dividend of $0.65 per common share, payable January 15, 2009 to common shareholders of record on January 2, 2009.

NOTE 11.   OPERATING LEASES

At December 31, 2008, our 84 predominantly retail shopping center and mixed use properties are located in 13 states and the District of Columbia. There are approximately 2,450 leases with tenants providing a wide range of retail products and services. These tenants range from sole proprietorships to national retailers; no one tenant or corporate group of tenants accounts for more than 2.6% of annualized base rent.

 

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Our leases with commercial property and residential tenants are classified as operating leases. Commercial property leases generally range from three to ten years (certain leases with anchor tenants may be longer), and in addition to minimum rents, usually provide for percentage rents based on the tenant’s level of sales achieved and cost recoveries for the tenant’s share of certain operating costs. Leases on apartments are generally for a period of one year or less.

As of December 31, 2008, minimum future commercial property rentals from noncancelable operating leases, before any reserve for uncollectible amounts and assuming no early lease terminations, at our operating properties are as follows:

 

     (In thousands)

Year Ending December 31,

  

2009

     367,354

2010

     343,076

2011

     305,344

2012

     265,742

2013

     215,761

Thereafter

     1,224,073
      
   $ 2,721,350
      

NOTE 12.   COMPONENTS OF RENTAL INCOME AND EXPENSE

The principal components of rental income are as follows:

 

     Year Ended December 31,
     2008    2007    2006
     (In thousands)

Minimum rents

        

Retail and commercial

   $ 366,380    $ 345,486    $ 310,955

Residential

     18,326      15,312      12,805

Cost reimbursement

     103,381      91,164      77,617

Percentage rent

     8,415      7,884      6,921

Other

     5,462      5,882      5,963
                    
   $ 501,964    $ 465,728    $ 414,261
                    

Minimum rents include $5.8 million, $8.1 million and $5.7 million for 2008, 2007 and 2006, respectively, to recognize minimum rents on a straight-line basis. In addition, minimum rents include $2.2 million, $2.9 million and $2.5 million for 2008, 2007 and 2006, respectively, to recognize income from the amortization of in-place leases in accordance with SFAS No. 141.

 

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The principal components of rental expenses are as follows:

 

     Year Ended December 31,
     2008    2007    2006
     (In thousands)

Repairs and maintenance

   $ 38,969    $ 35,403    $ 28,371

Utilities

     18,112      16,837      14,814

Management fees and costs

     14,082      13,127      12,479

Payroll properties

     8,093      7,445      6,896

Bad debt expense

     6,228      1,660      547

Ground rent

     5,875      6,002      6,041

Insurance

     5,510      6,888      5,491

Marketing

     5,953      4,539      3,953

Other operating

     6,896      7,462      5,572
                    
   $ 109,718    $ 99,363    $ 84,164
                    

NOTE 13.   DISCONTINUED OPERATIONS

Results of properties sold constitute discontinued operations and as such, the operations of these properties are classified as discontinued operations for all periods presented. A summary of the financial information for the discontinued operations is as follows:

 

     Year Ended December 31,
     2008    2007    2006
     (In thousands)

Revenue from discontinued operations

   $ 2,724    $ 23,990    $ 25,050

Income from discontinued operations

   $ 1,877    $ 6,760    $ 4,804

In September 2008, we applied for a refund of taxes paid to the state of California related to our TRS activities, primarily the condominium units sold in 2005 and 2006 at Santana Row. The refund related to the condominium units of $1.1 million is included in “Discontinued operations—gain on sale of real estate.”

NOTE 14.   SHARE-BASED COMPENSATION PLANS

A summary of share-based compensation expense included in net income is as follows:

 

     Year Ended December 31,  
     2008     2007     2006  
     (In thousands)  

Share-based compensation incurred

      

Grants of common shares

   $ 6,442     $ 6,867     $ 5,156  

Grants of options

     1,336       1,173       1,334  
                        
     7,778       8,040       6,490  

Capitalized share-based compensation

     (1,208 )     (805 )     (620 )
                        

Share-based compensation expensed

   $ 6,570     $ 7,235     $ 5,870  
                        

As of December 31, 2008, we have grants outstanding under two share-based compensation plans. In May 2007, our shareholders approved an amendment to the 2001 Long Term Incentive Plan (“the 2001 Plan”), originally established in May 2001, which increased the authorization to grant share options, common shares and other share-based awards from 1,750,000 common shares of beneficial interest to 3,250,000 common shares of beneficial interest. Our 1993 Long Term Incentive Plan (‘the 1993 Plan”) authorized the grant of share options, common shares and other share-based awards for up to 5,500,000 common shares of beneficial interest. The 1993 Plan expired in May 2003.

 

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Option awards under the 2001 Plan and the 1993 Plan are required to have an exercise price at least equal to the closing trading price of our common shares on the date of grant. Options and share awards under these plans generally vest over 3 to 5 years and option awards typically have a 10-year contractual term. We pay dividends on unvested shares. Certain options and share awards provide for accelerated vesting if there is a change in control. Additionally, the vesting on certain option and share awards can accelerate in part or in full upon retirement based on the age of the retiree or upon termination without cause.

Effective December 31, 2007, Larry Finger, our former Chief Financial Officer, was no longer employed by the Trust. Under his existing severance agreement, his departure was treated as a termination without cause. As a result, we recognized approximately $0.6 million related to the accelerated vesting of unvested shares and options and $0.4 million related to a cash payment to Mr. Finger. These amounts are included in general and administrative expenses in the 2007 consolidated statement of operations.

As a result of the exercise of options, we had notes outstanding from our officers and employees for $0.8 million at December 31, 2007; the notes were fully repaid during 2008. These notes bore interest at LIBOR plus a market-rate spread with the rate adjusted annually on the anniversary date and were collateralized by the shares with recourse to the borrower. Option awards made in 2001 and later do not provide for employees to be able to exercise their options with a loan from the Trust.

The fair value of each option award is estimated on the date of grant using the Black-Scholes model. Expected volatilities, term, dividend yields, employee exercises and employee terminations are primarily based on historical data. The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant. The fair value of each share award is determined based on the closing trading price of our common shares on the grant date.

The following table provides a summary of the weighted-average assumption used to value options:

 

     Year Ended December 31,  
     2008     2007     2006  

Volatility

   21.4 %   20.0 %   18.7 %

Expected dividend yield

   3.6 %   3.4 %   4.9 %

Expected term (in years)

   5.4     4.1     3.8  

Risk free interest rate

   2.7 %   4.7 %   4.6 %

The following table provides a summary of option activity for 2008:

 

     Shares
Under
Option
    Weighted-
Average
Exercise
Price
   Weighted-
Average
Remaining
Contractual Term
   Aggregate
Intrinsic
Value
                (In years)    (In thousands)

Outstanding at December 31, 2007

   850,628     $ 49.13      

Granted

   206,117       73.15      

Exercised

   (214,853 )     37.36      

Forfeited or expired

   (16,546 )     82.91      
              

Outstanding at December 31, 2008

   825,346     $ 57.52    6.4    $ 9,410
                        

Exercisable at December 31, 2008

   424,333     $ 42.71    4.6    $ 9,410
                        

The weighted-average grant-date fair value of options granted during 2008, 2007 and 2006 was $10.46 per share, $14.48 per share and $7.97 per share, respectively. The total cash received from options exercised during 2008, 2007 and 2006 was $8.0 million, $5.1 million and $8.8 million, respectively. The total intrinsic value of options exercised during the year ended December 31, 2008, 2007 and 2006 was $9.3 million, $4.1 million and $10.9 million, respectively.

 

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The following table provides a summary of restricted share activity for 2008:

 

     Shares     Weighted-Average
Grant-Date Fair
Value

Unvested at December 31, 2007

   198,406     $ 77.21

Granted

   99,504       72.98

Vested

   (98,658 )     66.73

Forfeited

   (13,961 )     86.93
        

Unvested at December 31, 2008

   185,291     $ 79.49
        

The weighted-average grant-date fair value of stock awarded in 2008, 2007 and 2006 was $72.98, $91.13 and $68.18, respectively. The total vesting-date fair value of shares vested during the year ended December 31, 2008, 2007 and 2006 was $5.9 million, $10.7 million and $7.0 million, respectively.

As of December 31, 2008, there was $12.5 million of total unrecognized compensation cost related to unvested share-based compensation arrangements (i.e. options and unvested shares) granted under our plans. This cost is expected to be recognized over the next 5.1 years with a weighted-average period of 1.4 years.

Subsequent to December 31, 2008, common shares and options were awarded under various incentive compensation plans as follows:

 

Date

  

Award

  

Vesting Term

   Beneficiary

February 17, 2009

  

  71,975 Restricted shares

  

3 to 5 years

   Officers and key employees

February 17, 2009

  

193,036 Options

  

5 years

   Officers and key employees

January 2, 2009

  

    6,039 Shares

  

Immediate

   Trustees

NOTE 15.   SAVINGS AND RETIREMENT PLANS

We have a savings and retirement plan in accordance with the provisions of Section 401(k) of the Internal Revenue Code. Generally, employees can elect, at their discretion, to contribute a portion of their compensation up to a maximum of $15,500, $15,500 and $15,000 for 2008, 2007 and 2006, respectively. Under the plan, we contribute 50% of each employee’s first 5% of contributions. In addition, we may make discretionary contributions within the limits of deductibility set forth by the Code. Our employees are immediately eligible to become plan participants. Employees are eligible to receive matching contributions immediately on their participation, however, these matching payments will not vest until their first anniversary of employment. Our expense for the years ended December 31, 2008, 2007 and 2006 was approximately $397,000, $365,000 and $342,000, respectively.

A non-qualified deferred compensation plan for our officers and certain other employees was established in 1994 that allows the participants to defer a portion of their income. As of December 31, 2008, we are liable to participants for approximately $3.8 million under this plan. Although this is an unfunded plan, we have purchased certain investments to match this obligation. Our obligation under this plan and the related investments are both included in the accompanying financial statements.

 

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NOTE 16.   EARNINGS PER SHARE

We calculate basic and diluted earnings per share in accordance with SFAS No. 128, “Earnings Per Share.” Basic earnings per share (“EPS”) is computed by dividing net income available for common shareholders by the weighted average number of common shares outstanding for the period. Diluted EPS reflects the potential dilution that could occur if securities or other contracts to issue common shares were exercised or converted into common shares and then shared in our earnings. In 2008, 2007 and 2006, operating partnership units and Series 1 Preferred Shares were excluded from diluted EPS as the conversion of these units would have resulted in an anti-dilutive effect. Certain stock options and unvested shares have also been excluded from the calculation of diluted earnings per share as they are anti-dilutive.

The following table sets forth the reconciliation between basic and diluted EPS:

 

     Year Ended December 31,  
     2008     2007     2006  
     (In thousands, except per share data)  

NUMERATOR

      

Income from continuing operations

   $ 115,338     $ 94,009     $ 89,952  

Preferred stock dividends

     (541 )     (442 )     (10,423 )

Preferred stock redemption costs

     —         —         (4,775 )
                        

Income from continuing operations available for common shareholders

     114,797       93,567       74,754  

Discontinued operations—income

     1,877       6,760       4,804  

Discontinued operations—gain on sale of real estate

     12,572       94,768       16,515  

Gain on sale of real estate

     —         —         7,441  
                        

Net income available for common shareholders, basic and dilutive

   $ 129,246     $ 195,095     $ 103,514  
                        

DENOMINATOR

      

Weighted average common shares outstanding—basic

     58,665       56,108       53,469  

Effect of dilutive securities:

      

Stock options

     223       365       389  

Unvested stock

     26       70       104  
                        

Weighted average common shares outstanding—dilutive

     58,914       56,543       53,962  
                        

EARNINGS PER COMMON SHARE, BASIC

      

Continuing operations

   $ 1.96     $ 1.67     $ 1.40  

Discontinued operations

     0.24       1.81       0.40  

Gain on sale of real estate

     —         —         0.14  
                        
   $ 2.20     $ 3.48     $ 1.94  
                        

EARNINGS PER COMMON SHARE, DILUTED

      

Continuing operations

   $ 1.95     $ 1.65     $ 1.39  

Discontinued operations

     0.24       1.80       0.39  

Gain on sale of real estate

     —         —         0.14  
                        
   $ 2.19     $ 3.45     $ 1.92  
                        

 

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NOTE 17.   SEGMENT INFORMATION

FASB Statement No. 131, “Disclosures about Segments of an Enterprise and Related Information” (“SFAS No. 131”) requires disclosure of certain operating and financial data with respect to separate business activities within an enterprise. Our primary business is the ownership, management, development, and redevelopment of retail and mixed use properties. During 2008, we restructured our asset management and property operations groups and consequently, re-evaluated our reportable segments. We review operating and financial information for each property on an individual basis and therefore, each property represents an individual operating segment. We evaluate financial performance using property operating income defined as total revenues less rental expenses and real estate taxes. No individual property constitutes more than 10% of our revenues or property operating income and we have no operations outside of the United States of America. Therefore, we have aggregated our properties into one reportable segment as the properties share similar long-term economic characteristics and have other similarities including they are operated using consistent business strategies, are typically located in major metropolitan areas, and have similar tenant mixes. While we believe we have only one reportable segment as defined by SFAS No. 131, we have continued to provide additional information by geographic region as presented below.

 

     Year Ended December 31, 2008  
     East     West     Other     Total  
     (In thousands)  

Rental income

   $ 389,569     $ 112,395     $ —       $ 501,964  

Other property income

     11,828       2,185       —         14,013  

Mortgage interest income

     3,043       1,505       —         4,548  

Rental expenses

     (78,717 )     (31,001 )     —         (109,718 )

Real estate taxes

     (44,244 )     (11,470 )     —         (55,714 )
                                

Property operating income

     281,479       73,614       —         355,093  

General and administrative expense

     —         —         (26,732 )     (26,732 )

Depreciation and amortization

     (78,631 )     (31,576 )     (815 )     (111,022 )

Other interest income

     645       271       —         916  

Interest expense

     —         —         (99,163 )     (99,163 )

Income from real estate partnership

     —         —         1,612       1,612  
                                

Income from continuing operations before minority interests

   $ 203,493     $ 42,309     $ (125,098 )   $ 120,704  

Minority interests

     —         —         (5,366 )     (5,366 )

Discontinued operations—income

     —         —         1,877       1,877  

Discontinued operations—gain on sale of real estate

     —         —         12,572       12,572  
                                

Net income

   $ 203,493     $ 42,309     $ (116,015 )   $ 129,787  
                                

Total assets

   $ 2,112,910     $ 907,760     $ 72,106     $ 3,092,776  
                                

 

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Table of Contents
     Year Ended December 31, 2007  
     East     West     Other     Total  
     (In thousands)  

Rental income

   $ 360,928     $ 104,800     $ —       $ 465,728  

Other property income

     9,156       3,678       —         12,834  

Mortgage interest income

     3,003       1,557       —         4,560  

Rental expenses

     (70,490 )     (28,873 )     —         (99,363 )

Real estate taxes

     (37,306 )     (9,591 )     —         (46,897 )
                                

Property operating income

     265,291       71,571       —         336,862  

General and administrative expense

     —         —         (26,581 )     (26,581 )

Depreciation and amortization

     (70,306 )     (30,285 )     (1,042 )     (101,633 )

Other interest income

     754       167       —         921  

Interest expense

     —         —         (111,365 )     (111,365 )

Income from real estate partnership

     —         —         1,395       1,395  
                                

Income from continuing operations before minority interests

   $ 195,739     $ 41,453     $ (137,593 )   $ 99,599  

Minority interests

     —         —         (5,590 )     (5,590 )

Discontinued operations—income

     —         —         6,760       6,760  

Discontinued operations—gain on sale of real estate

     —         —         94,768       94,768  
                                

Net income

   $ 195,739     $ 41,453     $ (41,655 )   $ 195,537  
                                

Total assets

   $ 1,988,181     $ 887,112     $ 114,004     $ 2,989,297  
                                

 

     Year Ended December 31, 2006  
     East     West     Other     Total  
     (In thousands)  

Rental income

   $ 317,458     $ 96,803     $ —       $ 414,261  

Other property income

     4,588       2,872       —         7,460  

Mortgage interest income

     3,163       1,932       —         5,095  

Rental expenses

     (56,779 )     (27,385 )     —         (84,164 )

Real estate taxes

     (32,104 )     (9,035 )     —         (41,139 )
                                

Property operating income

     236,326       65,187       —         301,513  

General and administrative expense

     —         —         (21,921 )     (21,921 )

Depreciation and amortization

     (61,560 )     (29,433 )     (1,758 )     (92,751 )

Other interest income

     1,649       393       —         2,042  

Interest expense

     —         —         (95,234 )     (95,234 )

Income from real estate partnership

     —         —         656       656  
                                

Income from continuing operations before minority interests

   $ 176,415     $ 36,147     $ (118,257 )   $ 94,305  

Minority interests

     —         —         (4,353 )     (4,353 )

Discontinued operations—income

     —         —         4,804       4,804  

Discontinued operations—gain on sale of real estate

     —         —         16,515       16,515  

Gain on sale of real estate

     —         —         7,441       7,441  
                                

Net income

   $ 176,415     $ 36,147     $ (93,850 )   $ 118,712  
                                

Total assets

   $ 1,745,273     $ 881,676     $ 61,657     $ 2,688,606  
                                

 

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NOTE 18.   SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)

Summarized quarterly financial data is as follows:

 

     First
Quarter
   Second
Quarter
   Third
Quarter
   Fourth
Quarter
     (In thousands, except per share data)

2008

           

Revenue(1)

   $ 126,369    $ 128,837    $ 131,683    $ 133,636

Operating Income

   $ 54,387    $ 53,584    $ 55,363    $ 54,005

Net income

   $ 29,986    $ 28,974    $ 37,102    $ 33,725

Net income available for common shareholders

   $ 29,851    $ 28,839    $ 36,966    $ 33,590

Earnings per common share—basic

   $ 0.51    $ 0.49    $ 0.63    $ 0.57

Earnings per common share—diluted

   $ 0.51    $ 0.49    $ 0.63    $ 0.57
     First
Quarter
   Second
Quarter
   Third
Quarter
   Fourth
Quarter
     (In thousands, except per share data)

2007

           

Revenue(1)

   $ 114,804    $ 118,241    $ 123,491    $ 126,586

Operating Income

   $ 49,462    $ 51,969    $ 54,041    $ 53,176

Net income

   $ 23,136    $ 26,718    $ 23,515    $ 122,168

Net income available for common shareholders

   $ 23,100    $ 26,583    $ 23,379    $ 122,033

Earnings per common share—basic

   $ 0.42    $ 0.47    $ 0.42    $ 2.16

Earnings per common share—diluted

   $ 0.41    $ 0.47    $ 0.41    $ 2.14

 

(1) As required by SFAS No. 144, revenue has been reduced to reflect the results of discontinued operations. Revenue from discontinued operations, by quarter, is summarized as follows:

 

     First
Quarter
   Second
Quarter
   Third
Quarter
   Fourth
Quarter
     (In thousands)

2008 revenue from discontinued operations

   $ 854    $ 856    $ 834    $ 180

2007 revenue from discontinued operations

   $ 8,196    $ 6,805    $ 6,496    $ 2,493

NOTE 19.   SUBSEQUENT EVENTS

On January 5, 2009, we repaid the $4.4 million mortgage loan on Mercer Mall which had an original maturity date of April 1, 2009. This loan was repaid with funds borrowed on our $300 million revolving credit facility.

On January 12, 2009 and February 5, 2009, we purchased and retired $5.0 million and $0.9 million, respectively, of the outstanding $175.0 million balance of our 8.75% notes. The notes were repaid with funds borrowed on our $300 million revolving credit facility.

 

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FEDERAL REALTY INVESTMENT TRUST

SCHEDULE III

SUMMARY OF REAL ESTATE AND ACCUMULATED

DEPRECIATION

December 31, 2008

(Dollars in thousands)

 

COLUMN A

      COLUMN B   COLUMN C       COLUMN D   COLUMN E           COLUMN F   COLUMN G   COLUMN H   COLUMN I

Descriptions

      Encumbrance   Initial cost to company   Cost
Capitalized

Subsequent
to

Acquisition
  Gross amount at which carried at close of
period
  Accumulated
Depreciation
and

Amortization
  Date
of
Construction
  Date(s)
Acquired
  Life on
which

depreciation
in latest

income
statements

is computed
      Land   Building and
Improvements
        Land       Building and
    Improvements    
      Total            

150 POST STREET (San Francisco)

  CA   —     11,685   9,181   16,643   11,685   25,824   37,509   9,413   1908   10/23/97   35 years

ANDORRA (Pennsylvania)

  PA   —     2,432   12,346   8,282   2,432   20,628   23,060   12,265   1953   01/12/88   35 years

ASSEMBLY SQUARE (Massachusetts)

  MA   —     38,319   34,196   64,722   47,647   89,590   137,237   6,854   2005   2005-2008   35 years

THE AVENUE AT WHITE MARSH (Maryland)

  MD   60,067   20,682   72,432   1,297   20,682   73,729   94,411   4,834   1997   03/08/07   35 years

BALA CYNWYD (Pennsylvania)

  PA   —     3,565   14,466   16,180   3,566   30,645   34,211   10,018   1955   09/22/93   35 years

BARRACKS ROAD (Virginia)

  VA   41,368   4,363   16,459   24,492   4,363   40,951   45,314   28,295   1958   12/31/85   35 years

BETHESDA ROW

    (Maryland)

 

MD

 

25,412

  36,971   35,406   117,100   35,272   154,205   189,477   24,856   1945-2008   12/31/93,

1/20/06,
9/25/08,

& 9/30/08

 

 

35-50 years

BRICK PLAZA (New Jersey)

  NJ   30,633     24,715   31,675   3,788   52,602   56,390   32,091   1958   12/28/89   35 years

BRISTOL (Connecticut)

  CT   —     3,856   15,959   6,799   3,856   22,758   26,614   8,596   1959   09/22/95   35 years

CHELSEA COMMONS

    (Massachusetts)

 

MA

 

7,711

  9,417   19,466   136   9,417   19,602   29,019   1,070   1962/1969/2008   08/25/06,
1/30/07,

& 7/16/08

 

 

35 years

COLORADO BLVD (California)

  CA   —     5,262   4,071   7,339   5,262   11,410   16,672   5,397   1905/1915/1980   12/31/96
& 8/14/98
  35 years

CONGRESSIONAL PLAZA (Maryland)

  MD   —     2,793   7,424   60,064   2,793   67,488   70,281   34,664   1965/2003   04/01/65   35 years

COURTHOUSE CENTER (Maryland)

  MD   —     1,750   1,869   604   1,750   2,473   4,223   923   1975   12/17/97   35 years

COURTYARD SHOPS (Florida)

  FL   7,978   16,862   21,851   76   16,862   21,927   38,789   261   1990   09/04/08   35 years

CROSSROADS (Illinois)

  IL   —     4,635   11,611   7,669   4,635   19,280   23,915   9,420   1959   07/19/93   35 years

CROW CANYON COMMONS (California)

  CA   21,214   8,638   54,575   1,782   8,638   56,357   64,995   4,854   Late 1970's/2006   12/29/05

& 02/28/07

  35 years

 

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FEDERAL REALTY INVESTMENT TRUST

SCHEDULE III

SUMMARY OF REAL ESTATE AND ACCUMULATED

DEPRECIATION—CONTINUED

December 31, 2008

(Dollars in thousands)

 

COLUMN A

      COLUMN B   COLUMN C       COLUMN D     COLUMN E           COLUMN F   COLUMN G   COLUMN H   COLUMN I

Descriptions

      Encumbrance   Initial cost to company   Cost
Capitalized

Subsequent
to

Acquisition
    Gross amount at which carried at close of
period
  Accumulated
Depreciation
and

Amortization
  Date
of
Construction
  Date(s)
Acquired
  Life on
which

depreciation
in latest

income
statements

is computed
      Land   Building and
Improvements
        Land       Building and
    Improvements    
      Total            

DEDHAM PLAZA (Massachusetts)

  MA   —     12,287   12,918   6,023     12,287   18,941   31,228   8,588   1959   12/31/93   35 years

DEL MAR VILLAGE (Florida)

  FL   —     14,218   39,559   84     14,218   39,643   53,861   741   1982/1984   5/30/08
& 7/11/08
  35 years

EASTGATE (North Carolina)

  NC   —     1,608   5,775   17,663     1,608   23,438   25,046   10,717   1963   12/18/86   35 years

ELLISBURG CIRCLE (New Jersey)

  NJ   —     4,028   11,309   12,369     4,013   23,693   27,706   13,295   1959   10/16/92   35 years

ESCONDIDO PROMENADE (California)

  CA   —     11,505   12,147   4,712     11,505   16,859   28,364   5,372   1987   12/31/96   35 years

FALLS PLAZA (Virginia)

  VA   —     1,798   1,270   8,886     1,819   10,135   11,954   5,995   1960/1962   09/30/67
& 10/05/72
  25 years

FEASTERVILLE (Pennsylvania)

  PA   —     1,431   1,600   8,858     1,452   10,437   11,889   7,226   1958   07/23/80   20 years

FEDERAL PLAZA (Maryland)

  MD   33,128   10,216   17,895   34,036     10,216   51,931   62,147   27,884   1970   06/29/89   35 years

FIFTH AVENUE (California)(4)

  CA   —     3,844   1,352   7,773     3,874   9,095   12,969   3,293   1888-1995   1996-1997   35 years

FINLEY SQUARE (Illinois)

  IL   —     9,252   9,544   12,494     9,252   22,038   31,290   10,666   1974   04/27/95   35 years

FLOURTOWN (Pennsylvania)

  PA   —     1,345   3,943   10,109     1,470   13,927   15,397   6,402   1957   04/25/80   35 years

FOREST HILLS (New York)

  NY   —     2,885   2,885   2,319     3,010   5,079   8,089   1,817   1937-1987   12/16/97   35 years

FRESH MEADOWS (New York)

  NY   —     24,625   25,255   18,888     24,627   44,141   68,768   17,531   1946-1949   12/05/97   35 years

FRIENDSHIP CENTER (District of Columbia)

  DC   —     12,696   20,803   (155 )   12,696   20,648   33,344   4,343   1998   09/21/01   35 years

GAITHERSBURG SQUARE (Maryland)

  MD   —     7,701   5,271   11,031     5,973   18,030   24,003   11,498   1966   04/22/93   35 years

GARDEN MARKET (Illinois)

  IL   —     2,677   4,829   4,018     2,677   8,847   11,524   4,022   1958   07/28/94   35 years

GOVERNOR PLAZA (Maryland)

  MD   —     2,068   4,905   15,036     2,068   19,941   22,009   11,283   1963   10/01/85   35 years

GRATIOT PLAZA (Michigan)

  MI   —     525   1,601   16,600     525   18,201   18,726   10,092   1964   03/29/73   25 3/4 years

GREENWICH AVENUE (Connecticut)

  CT   —     7,484   5,445   1,007     7,484   6,452   13,936   2,435   1900-1993   1995   35 years

 

F-38


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

SCHEDULE III

SUMMARY OF REAL ESTATE AND ACCUMULATED

DEPRECIATION—CONTINUED

December 31, 2008

(Dollars in thousands)

 

COLUMN A

      COLUMN B   COLUMN C       COLUMN D   COLUMN E           COLUMN F   COLUMN G   COLUMN H   COLUMN I

Descriptions

      Encumbrance   Initial cost to company   Cost
Capitalized

Subsequent
to

Acquisition
  Gross amount at which carried at close of
period
  Accumulated
Depreciation
and

Amortization
  Date
of
Construction
  Date(s)
Acquired
  Life on
which

depreciation
in latest

income
statements

is computed
      Land   Building and
Improvements
        Land       Building and
    Improvements    
      Total            

HAUPPAUGE (New York)

  NY   15,595   8,791   15,262   3,740   8,791   19,002   27,793   5,775   1963   08/06/98   35 years

HERMOSA AVE (California)

  CA   —     1,116   280   4,020   1,368   4,048   5,416   1,513   1923   09/17/97   35 years

HOLLYWOOD BLVD. (California)

  CA   —     8,300   16,920   13,883   8,300   30,803   39,103   3,883   1929/1991   3/22/99
& 6/18/99
  35 years

HOUSTON STREET (Texas)(9)

  TX   —     14,680   1,976   50,754   14,778   52,632   67,410   15,057   var   1998   35 years

HUNTINGTON (New York)

  NY   —     —     16,008   22,555   11,713   26,850   38,563   6,360   1962   12/12/88

& 10/26/07

  35 years

IDYLWOOD PLAZA (Virginia)

  VA   —     4,308   10,026   1,315   4,308   11,341   15,649   4,837   1991   04/15/94   35 years

KINGS COURT (California)

  CA   —     —     10,714   862   —     11,576   11,576   4,791   1960   08/24/98   26 years

LANCASTER (Pennsylvania)

  PA   4,907   —     2,103   8,737   —     10,840   10,840   5,798   1958   04/24/80   22 years

LANGHORNE SQUARE (Pennsylvania)

  PA   —     720   2,974   15,269   720   18,243   18,963   9,590   1966   01/31/85   35 years

LAUREL (Maryland)

  MD   —     7,458   22,525   17,837   7,576   40,244   47,820   26,090   1956   08/15/86   35 years

LAWRENCE PARK (Pennsylvania)

  PA   29,322   5,723   7,160   16,743   5,734   23,892   29,626   19,653   1972   07/23/80   22 years

LEESBURG PLAZA (Virginia)

  VA   —     8,184   10,722   15,328   8,184   26,050   34,234   5,739   1967   09/15/98   35 years

LINDEN SQUARE (Massachusetts)

  MA   —     79,382   19,247   42,662   79,370   61,921   141,291   1,706   1960-2008   08/24/06   35 years

LOEHMANN'S PLAZA (Virginia)

  VA   —     1,237   15,096   16,076   1,248   31,161   32,409   18,129   1971   07/21/83   35 years

MELVILLE MALL
(New York)

  NY   24,012   35,622   32,882   101   35,622   32,983   68,605   2,114   1974   10/16/06   35 years

MERCER MALL
(New Jersey)

  NJ   55,664   4,488   70,076   30,503   5,032   100,035   105,067   17,908   1975   10/14/03   25-35 years

MID PIKE PLAZA (Maryland)

 

MD

 

—  

  —     10,335   33,963   7,517   36,781   44,298   4,759   1963  

05/18/82
& 10/26/07

 

 

50 years

MOUNT VERNON/SOUTH VALLEY/7770 RICHMOND HWY. (Virginia)

 




VA

 




11,640

  10,068   33,501   33,509   10,147   66,931   77,078   9,970   1972/1966/1974  

 

 

 

03/31/03,
3/21/03,
& 1/27/06

 

 

 

 

35 years

TOWN CENTER OF NEW BRITAIN (Pennsylvania)

  PA   —     1,282   12,285   558   1,262   12,863   14,125   959   1969   06/29/06   35 years

 

F-39


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

SCHEDULE III

SUMMARY OF REAL ESTATE AND ACCUMULATED

DEPRECIATION—CONTINUED

December 31, 2008

(Dollars in thousands)

 

COLUMN A

      COLUMN B   COLUMN C       COLUMN D     COLUMN E           COLUMN F   COLUMN G   COLUMN H   COLUMN I

Descriptions

      Encumbrance   Initial cost to company   Cost
Capitalized

Subsequent
to

Acquisition
    Gross amount at which carried at close of
period
  Accumulated
Depreciation
and

Amortization
  Date
of
Construction
  Date(s)
Acquired
  Life on
which

depreciation
in latest

income
statements

is computed
      Land   Building and
Improvements
        Land       Building and
    Improvements    
      Total            

NORTH DARTMOUTH (Massachusetts)

  MA   —     27,214   —     (17,846 )   9,366   2   9,368   —     2004   08/24/06   —  

NORTHEAST (Pennsylvania)

  PA   —     1,152   10,596   10,776     1,153   21,371   22,524   14,111   1959   08/30/83   35 years

NORTH LAKE COMMONS (Illinois)

  IL   —     2,782   8,604   2,304     2,628   11,062   13,690   4,606   1989   04/27/94   35 years

OLD KEENE MILL (Virginia)

  VA   —     638   998   4,451     638   5,449   6,087   4,554   1968   06/15/76   33 1/3 years

OLD TOWN CENTER (California)

  CA   —     3,420   2,765   27,868     3,420   30,633   34,053   12,441   1962, 1997-1998   10/22/97   35 years

PAN AM SHOPPING CENTER (Virginia)

  VA   —     8,694   12,929   6,602     8,695   19,530   28,225   9,414   1979   02/05/93   35 years

PENTAGON ROW (Virginia)

  VA   —     —     2,955   84,847     —     87,802   87,802   22,431   1999 - 2002   1998   35 years

PERRING PLAZA (Maryland)

  MD   —     2,800   6,461   17,348     2,800   23,809   26,609   15,679   1963   10/01/85   35 years

PIKE 7 (Virginia)

  VA   —     9,709   22,799   2,327     9,709   25,126   34,835   9,103   1968   03/31/97   35 years

QUEEN ANNE PLAZA (Massachusetts)

  MA   —     3,319   8,457   3,874     3,319   12,331   15,650   6,070   1967   12/23/94   35 years

QUINCE ORCHARD PLAZA (Maryland)

  MD   —     3,197   7,949   9,844     2,928   18,062   20,990   10,392   1975   04/22/93   35 years

ROCKVILLE TOWN SQUARE (Maryland)

  MD   —     —     8,092   29,186     —     37,278   37,278   1,854   2005 - 2007   2006 -2007   50 years

ROLLINGWOOD APTS. (Maryland)

  MD   —     552   2,246   4,430     572   6,656   7,228   6,251   1960   01/15/71   25 years

SAM'S PARK & SHOP (District of Columbia)

  DC   —     4,840   6,319   1,155     4,840   7,474   12,314   3,043   1930   12/01/95   35 years

SANTANA ROW (California)

  CA   —     41,969   1,161   464,551     49,725   457,956   507,681   58,756   1999 - 2008   03/05/97   40 -50 years

SAUGUS (Massachusetts)

  MA   —     4,383   8,291   1,019     4,383   9,310   13,693   3,573   1976   10/01/96   35 years

SHIRLINGTON (Virginia)

  VA   6,259   9,761   14,808   25,749     5,798   44,520   50,318   10,566   1940, 2006-2008   12/21/95   35 years

 

F-40


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

SCHEDULE III

SUMMARY OF REAL ESTATE AND ACCUMULATED

DEPRECIATION—CONTINUED

December 31, 2008

(Dollars in thousands)

 

COLUMN A

      COLUMN B   COLUMN C       COLUMN D     COLUMN E           COLUMN F   COLUMN G   COLUMN H   COLUMN I

Descriptions

      Encumbrance   Initial cost to company   Cost
Capitalized

Subsequent
to

Acquisition
    Gross amount at which carried at close of
period
  Accumulated
Depreciation
and

Amortization
  Date
of
Construction
  Date(s)
Acquired
  Life on
which

depreciation
in latest

income
statements

is computed
      Land   Building and
Improvements
        Land       Building and
    Improvements    
      Total            

SHOPPERS WORLD (Virginia)

  VA     5,816     10,211     18,863     448       10,225     19,297     29,522     1,045   1975 -2001   05/30/07   35 years

THE SHOPPES AT NOTTINGHAM SQUARE (Maryland)

  MD     —       27,029     12,849     (12,308 )     14,692     12,878     27,570     822   2005 -2006   03/08/07   35 years

THIRD STREET PROMENADE (California) (9)

  CA     —       22,645     12,709     41,453       24,668     52,139     76,807     18,931   1888-2000   1996-2000   35 years

TOWER (Virginia)

  VA     —       7,170     10,518     2,079       7,129     12,638     19,767     4,277   1953-1960   08/24/98   35 years

TROY (New Jersey)

  NJ     —       3,126     5,193     15,420       4,028     19,711     23,739     14,664   1966   07/23/80   22 years

TYSON’S STATION (Virginia)

  VA     6,070     388     453     2,826       475     3,192     3,667     2,881   1954   01/17/78   17 years

WESTGATE (California)

  CA     —       6,319     107,284     2,561       6,319     109,845     116,164     13,104   1960-1966   03/31/04   35 years

WHITE MARSH PLAZA (Maryland)

  MD     10,359     3,478     21,413     36       3,478     21,449     24,927     1,448   1987   03/08/07   35 years

WHITE MARSH OTHER (Maryland)

  MD     —       37,812     1,843     (7,729 )     30,076     1,850     31,926     132   1985   03/08/07   35 years

WILDWOOD (Maryland)

  MD     25,773     9,111     1,061     7,514       9,111     8,575     17,686     7,313   1958   05/05/69   33 1/3 years

WILLOW GROVE (Pennsylvania)

  PA     —       1,499     6,643     19,010       1,499     25,653     27,152     17,685   1953   11/20/84   35 years

WILLOW LAWN (Virginia)

  VA     —       3,192     7,723     65,052       7,790     68,177     75,967     37,060   1957   12/05/83   35 years

WYNNEWOOD (Pennsylvania)

  PA     29,882     8,055     13,759     14,399       8,055     28,158     36,213     12,410   1948   10/29/96   35 years
                                                         

TOTALS

    $ 452,810   $ 759,247   $ 1,200,166   $ 1,714,272     $ 762,611   $ 2,911,074   $ 3,673,685   $ 846,258      
                                                         

 

F-41


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

SCHEDULE III

SUMMARY OF REAL ESTATE AND ACCUMULATED

DEPRECIATION—CONTINUED

Three Years Ended December 31, 2008

Reconciliation of Total Cost

(In thousands)

 

Balance, December 31, 2005

   $ 2,829,321  

Additions during period

  

Acquisitions

     317,287  

Improvements

     112,930  

Deduction during period—disposition and retirements of property

     (55,280 )
        

Balance, December 31, 2006

     3,204,258  

Additions during period

  

Acquisitions

     313,934  

Improvements

     140,613  

Deduction during period—disposition and retirements of property

     (205,958 )
        

Balance, December 31, 2007

     3,452,847  

Additions during period

  

Acquisitions

     122,662  

Improvements

     144,192  

Deduction during period—disposition and retirements of property

     (46,016 )
        

Balance, December 31, 2008

   $ 3,673,685  
        

 

(A) For Federal tax purposes, the aggregate cost basis is approximately $3.1 billion as of December 31, 2008.

 

F-42


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

SCHEDULE III

SUMMARY OF REAL ESTATE AND ACCUMULATED

DEPRECIATION—CONTINUED

Three Years Ended December 31, 2008

Reconciliation of Accumulated

Depreciation and Amortization

(In thousands)

 

Balance, December 31, 2005

   $ 663,750  

Additions during period—depreciation and amortization expense

     89,564  

Deductions during period—disposition and retirements of property

     (12,807 )
        

Balance, December 31, 2006

     740,507  

Additions during period—depreciation and amortization expense

     96,454  

Deductions during period—disposition and retirements of property

     (80,258 )
        

Balance, December 31, 2007

     756,703  

Additions during period—depreciation and amortization expense

     101,321  

Deductions during period—disposition and retirements of property

     (11,766 )
        

Balance, December 31, 2008

   $ 846,258  
        

 

F-43


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

SCHEDULE IV

MORTGAGE LOANS ON REAL ESTATE

Year Ended December 31, 2008

(Dollars in thousands)

 

Column A

   Column B   Column C   

Column D

   Column E    Column F    Column G  

Description of Lien

   Interest Rate   Maturity Date   

Periodic Payment
Terms

   Prior
Liens
   Face Amount
of Mortgages
   Carrying
Amount of
Mortgages(1)
 
Mortgage on land and mixed-use building in Norwalk, CT    Greater of 10%
or LIBOR plus
725 basis points
  November
2009
   Interest only, balloon payment due at maturity    —      $ 5,515    $ 5,397 (2)
Mortgage on Hotel in San Jose, CA    9%   August 2016    Principal and interest; balloon payment due at maturity(3)    —        16,221      12,063  
Mortgage on retail buildings in Philadelphia, PA    8% or 10%
based on timing
of draws,

plus participation

  May 2021   

Interest only

monthly; balloon payment due at maturity

   —        19,070      19,070 (4)
Mortgage on retail buildings in Philadelphia, PA    10% plus
participation
  May 2021   

Interest only;

balloon payment

due at maturity

   —        9,250      9,250  
                          
              $ 50,056    $ 45,780  
                          

 

(1) For Federal tax purposes, the aggregate tax basis is approximately $49.9 million as of December 31, 2008.
(2) The borrower has two one-year extension options with interest at the greater of 12% or LIBOR plus 925 basis points. The mortgage is available for up to $7.3 million.
(3) This note was amended on August 4, 2006. The amended note decreased the interest from 14% to 9% per annum, and requires monthly payments of principal and interest based on 15-year amortization schedule.
(4) This mortgage is available for up to $25.0 million.

 

F-44


Table of Contents

FEDERAL REALTY INVESTMENT TRUST

SCHEDULE IV

MORTGAGE LOANS ON REAL ESTATE—CONTINUED

Three Years Ended December 31, 2008

Reconciliation of Carrying Amount

(In thousands)

 

Balance, December 31, 2005

   $ 40,531  

Additions during period:

  

Issuance of loans

     4,321  

Deductions during period:

  

Collection and satisfaction of loans

     (4,055 )

Allowance for collectibility

     (280 )

Amortization of discount

     239  
        

Balance, December 31, 2006

     40,756  

Additions during period:

  

Issuance of loans

     8  

Deductions during period:

  

Collection and satisfaction of loans

     (556 )

Amortization of discount

     430  
        

Balance, December 31, 2007

     40,638  

Additions during period:

  

Issuance of loans

     5,612  

Loan fee

     (219 )

Deductions during period:

  

Collection and satisfaction of loans

     (719 )

Amortization of discount /loan fee

     468  
        

Balance, December 31, 2008

   $ 45,780  
        

 

F-45


Table of Contents

EXHIBIT INDEX

 

Exhibit

No.

  

Description

3.1    Declaration of Trust of Federal Realty Investment Trust dated May 5, 1999 as amended by the Articles of Amendment of Declaration of Trust of Federal Realty Investment Trust dated May 6, 2004, as corrected by the Certificate of Correction of Articles of Amendment of Declaration of Trust of Federal Realty Investment Trust dated June 17, 2004 (previously filed as Exhibit 3.1 to the Trust’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2005 (File No. 1-07533) (the “2005 2Q Form 10-Q”) and incorporated herein by reference)
3.2    Amended and Restated Bylaws of Federal Realty Investment Trust dated February 12, 2003, as amended October 29, 2003, May 5, 2004 and February 17, 2006 (previously filed as Exhibit 3.2 to the Trust’s Annual Report on Form 10-K for the year ended December 31, 2005 (File No. 1-07533) (the “2005 Form 10-K”) and incorporated herein by reference)
4.1    Specimen Common Share certificate (previously filed as Exhibit 4(i) to the Trust’s Annual Report on Form 10-K for the year ended December 31, 1999 (File No. 1-07533) (the “1999 Form 10-K”) and incorporated herein by reference)
4.2    Articles Supplementary relating to the 5.417% Series 1 Cumulative Convertible Preferred Shares of Beneficial Interest (previously filed as Exhibit 4.1 to the Trust’s Current Report on Form 8-K filed on March 13, 2007, (File No. 1-07533) and incorporated herein by reference)
4.3    Amended and Restated Rights Agreement, dated March 11, 1999, between the Trust and American Stock Transfer & Trust Company (previously filed as Exhibit 1 to the Trust’s Registration Statement on Form 8-A/A filed on March 11, 1999 (File No. 1-07533) and incorporated herein by reference)
4.4    First Amendment to Amended and Restated Rights Agreement, dated as of November 2003, between the Trust and American Stock Transfer & Trust Company (previously filed as Exhibit 4.5 to the Trust’s Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 1-07533) and incorporated herein by reference)
4.5    Indenture dated December 13, 1993 related to the Trust’s 7.48% Debentures due August 15, 2026; and 6.82% Medium Term Notes due August 1, 2027; (previously filed as Exhibit 4(a) to the Trust’s Registration Statement on Form S-3 (File No. 33-51029), and amended on Form S-3 (File No. 33-63687), filed on December 13, 1993 and incorporated herein by reference)
4.6    Indenture dated September 1, 1998 related to the Trust’s 8.75% Notes due December 1, 2009; 6 1/8% Notes due November 15, 2007; 4.50% Notes due 2011; 5.65% Notes due 2016; 6.00% Notes due 2012; 6.20% Notes due 2017; and 5.40% Notes due 2013 (previously filed as Exhibit 4(a) to the Trust’s Registration Statement on Form S-3 (File No. 333-63619) filed on September 17, 1998 and incorporated herein by reference)
4.7    Pursuant to Regulation S-K Item 601(b)(4)(iii), the Trust by this filing agrees, upon request, to furnish to the Securities and Exchange Commission a copy of other instruments defining the rights of holders of long-term debt of the Trust
10.1    Amended and Restated 1993 Long-Term Incentive Plan, as amended on October 6, 1997 and further amended on May 6, 1998 (previously filed as Exhibit 10.26 to the Trust’s Annual Report on Form 10-K for the year ended December 31, 1998 (File No. 1-07533) and incorporated herein by reference)
10.2    Fiscal Agency Agreement dated as of October 28, 1993 between the Trust and Citibank, N.A. (previously filed as an exhibit to the Trust’s Quarterly Report on Form 10-Q for the quarter ended September 30, 1993 (File No. 1-07533) and incorporated herein by reference)

 

1


Table of Contents

EXHIBIT INDEX

 

Exhibit

No.

  

Description

10.3    Form of Severance Agreement between the Trust and Certain of its Officers dated December 31, 1994 (previously filed as a portion of Exhibit 10 to the Trust’s Annual Report on Form 10-K for the year ended December 31, 1994 (File No. 1-07533) and incorporated herein by reference)
10.4    * Severance Agreement between the Trust and Donald C. Wood dated February 22, 1999 (previously filed as a portion of Exhibit 10 to the Trust’s Quarterly Report on Form 10-Q for the quarter ended March 31, 1999 (File No. 1-07533) (the “1999 1Q Form 10-Q”) and incorporated herein by reference)
10.5    * Executive Agreement between Federal Realty Investment Trust and Donald C. Wood dated February 22, 1999 (previously filed as a portion of Exhibit 10 to the 1999 1Q Form 10-Q and incorporated herein by reference)
10.6    * Amendment to Executive Agreement between Federal Realty Investment Trust and Donald C. Wood dated February 16, 2005 (previously filed as Exhibit 10.12 to the Trust’s Annual Report on Form 10-K for the year ended December 31, 2004 (File No. 1-07533) (the “2004 Form 10-K”) and incorporated herein by reference)
10.7    * Split Dollar Life Insurance Agreement dated August 12, 1998 between the Trust and Donald C. Wood (previously filed as a portion of Exhibit 10 to the Trust’s Annual Report on Form 10-K for the year ended December 31, 2000 (File No. 1-07533) and incorporated herein by reference)
10.8    * Severance Agreement between the Trust and Jeffrey S. Berkes dated March 1, 2000 (previously filed as a portion of Exhibit 10 to the Trust’s Annual Report on Form 10-K for the year ended December 31, 2001 (File No. 1-07533) and incorporated herein by reference)
10.9    * Amendment to Severance Agreement between Federal Realty Investment Trust and Jeffrey S. Berkes dated February 16, 2005 (previously filed as Exhibit 10.17 to the 2004 Form 10-K and incorporated herein by reference)
10.10    * Severance Agreement dated March 1, 2002 between the Trust and Larry E. Finger (previously filed as a portion of Exhibit 10 to the Trust’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2002 (File No. 1-07533) and incorporated herein by reference)
10.11    * Amendment to Severance Agreement between Federal Realty Investment Trust and Larry E. Finger dated February 16, 2005 (previously filed as Exhibit 10.19 to the 2004 Form 10-K and incorporated herein by reference)
10.12    * Amendment to Stock Option Agreement dated August 15, 2002 between the Trust and Dawn M. Becker (previously filed as a portion of Exhibit 10 to the Trust’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002 (File No. 1-075330 and incorporated herein by reference)
10.13    2001 Long-Term Incentive Plan (previously filed as Exhibit 99.1 to the Trust’s S-8 Registration Number 333-60364 filed on May 7, 2001 and incorporated herein by reference)
10.14    * Health Coverage Continuation Agreement between Federal Realty Investment Trust and Donald C. Wood dated February 16, 2005 (previously filed as Exhibit 10.26 to the 2004 Form 10-K and incorporated herein by reference)
10.15    * Severance Agreement between the Trust and Dawn M. Becker dated April 19, 2000 (previously filed as Exhibit 10.26 to the Trust’s 2005 2Q Form 10-Q and incorporated herein by reference)

 

2


Table of Contents

EXHIBIT INDEX

 

Exhibit

No.

  

Description

10.16    * Amendment to Severance Agreement between the Trust and Dawn M. Becker dated February 16, 2005 (previously filed as Exhibit 10.27 to the 2004 Form 10-K and incorporated herein by reference)
10.17    Form of Restricted Share Award Agreement for awards made under the Trust’s 2003 Long-Term Incentive Award Program for shares issued out of 2001 Long-Term Incentive Plan (previously filed as Exhibit 10.28 to the 2004 Form 10-K and incorporated herein by reference)
10.18    Form of Restricted Share Award Agreement for awards made under the Trust’s Annual Incentive Bonus Program for shares issued out of 2001 Long-Term Incentive Plan (previously filed as Exhibit 10.29 to the 2004 Form 10-K and incorporated herein by reference)
10.19    Form of Option Award Agreement for options awarded under 2001 Long-Term Incentive Plan (previously filed as Exhibit 10.30 to the 2004 Form 10-K and incorporated herein by reference)
10.20    Form of Option Award Agreement for awards made under the Trust’s 2003 Long-Term Incentive Award Program for shares issued out of the 2001 Long-Term Incentive Plan (previously filed as Exhibit 10.32 to the 2005 Form 10-K and incorporated herein by reference)
10.21    Credit Agreement dated as of July 28, 2006, by and among the Trust, Wachovia Capital Markets LLC, Wachovia Bank, National Association and various other financial institutions (previously filed as Exhibit 10.1 to the Trust’s Current Report on Form 8-K (File No. 1-07533), filed on July 31, 2006 and incorporated herein by reference)
10.22    Amended and Restated 2001 Long-Term Incentive Plan (previously filed as Exhibit 10.34 to the Trust’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2007 (File No. 1-07533) and incorporated herein by reference)
10.23    Credit Agreement dated as of November 9, 2007, by and among the Trust, Wachovia Capital Markets LLC, Wachovia Bank, National Association and various other financial institutions (previously filed as Exhibit 10.25 to the Trust’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007 (File No. 1-07533) (“the 2007 Form 10-K”) and incorporated herein by reference)
10.24    Consulting Agreement between the Trust and Larry E. Finger dated January 1, 2008 (previously filed as Exhibit 10.26 to the 2007 Form 10-K and incorporated herein by reference)
10.25    Change in Control Agreement between the Trust and Andrew P. Blocher dated February 12, 2007 (previously filed as Exhibit 10.27 to the Trust’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2008 (File No. 1-07533) and incorporated herein by reference)
10.26    Amendment to Severance Agreement between the Trust and Donald C. Wood dated January 1, 2009 (filed herewith)
10.27    Second Amendment to Executive Agreement between the Trust and Donald C. Wood dated January 1, 2009 (filed herewith)
10.28    Amendment to Health Coverage Continuation Agreement between the Trust and Donald C. Wood dated January 1, 2009 (filed herewith)
10.29    Second Amendment to Severance Agreement between the Trust and Jeffrey S. Berkes dated January 1, 2009 (filed herewith)
10.30    Second Amendment to Severance Agreement between the Trust and Dawn M. Becker dated January 1, 2009 (filed herewith)

 

3


Table of Contents

EXHIBIT INDEX

 

Exhibit

No.

  

Description

10.31    Amendment to Change in Control Agreement between the Trust and Andrew P. Blocher dated January 1, 2009 (filed herewith)
10.32    Amendment to Stock Option Agreements between the Trust and Andrew P. Blocher dated February 17, 2009 (filed herewith)
10.33    Restricted Share Award Agreement between the Trust and Andrew P. Blocher dated February 17, 2009 (filed herewith)
10.34   

Combined Incentive and Non-Qualified Stock Option Agreement between the Trust and

Andrew P. Blocher dated February 17, 2009 (filed herewith)

10.35    Severance Agreement between the Trust and Andrew P. Blocher dated February 17, 2009 (filed herewith)
21.1    Subsidiaries of Federal Realty Investment Trust (filed herewith)
23.1    Consent of Grant Thornton LLP (filed herewith)
24.1    Power of Attorney (included on signature page)
31.1    Rule 13a-14(a) Certification of Chief Executive Officer (filed herewith)
31.2    Rule 13a-14(a) Certification of Chief Financial Officer (filed herewith)
32.1    Section 1350 Certification of Chief Executive Officer (filed herewith)
32.2    Section 1350 Certification of Chief Financial Officer (filed herewith)

 

* Management contract or compensatory plan to be filed under Item 15(b) of Form 10-K.

 

4

Exhibit 10.26

Exhibit 10.26

AMENDMENT TO SEVERANCE AGREEMENT

with Donald C. Wood

THIS AMENDMENT TO SEVERANCE AGREEMENT (this “Amendment”), effective as of January 1, 2009, by and between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (“Employer”), and DONALD C. WOOD (“Employee”), amends that certain Severance Agreement dated as of February 22, 1999, by and between Employer and Employee (the “Severance Agreement”).

A.      Employer, acting through its Board of Trustees, and Employee have determined that it is in the best interest of Employer and Employee to modify the Severance Agreement to reflect the requirements of the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend the Severance Agreement as follows:

1.      Section 1 of the Severance Agreement is hereby amended by inserting in the second line after “Sections 1(a) or (b)” the following: “that constitute a Separation from Service (as defined herein).”

2.      Section 1(b) of the Severance Agreement is hereby amended by deleting the introductory paragraph and replacing it with the following:

 

  (b) by Employee for “Good Reason” within six (6) months following the occurrence of one or more of the following events which has continued uncured for a period of not less than thirty (30) days following written notice given by Employee to the Employer within ninety (90) days after such event occurs, unless in any case Employee specifically agrees in writing that such event shall not be Good Reason:”.

3.      Section 1(d) of the Severance Agreement is hereby amended by inserting after the word “salary” at the end of the first sentence the following: “which amount shall be paid as soon as possible and in any event, within two and one-half (2 1/2) months following the end of the year in which the Termination Date occurs.” Section 1(d) of the Severance Agreement is further amended by inserting the following text at the end of the second to last sentence thereof: “, with payment to be made within 60 days after the Employee’s Termination Date”.

4.      Section 1(g) of the Severance Agreement is hereby amended by adding at the end thereof the following: “, subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.”

5.      Section 1 of the Severance Agreement is hereby amended by adding at the end thereof a new Section 1(j) as follows:

 

  (j) Certain Definitions. For purposes of this Severance Agreement, in addition to the capitalized terms defined elsewhere, the following capitalized terms have the meanings indicated unless the context clearly requires otherwise:

 

  (i)

“Separation from Service” means the termination of services provided by Employee to the Employer, whether voluntarily or involuntarily, as


 

determined by the Board in accordance with Treasury Regulation Section 1.409A-1(h), as amended from time to time; and

 

  (ii) “Termination Date” means the date upon which the Employee incurs a Separation from Service from the Employer.

6.      Section 3(f)(i) of the Severance Agreement is hereby amended by inserting in the first sentence thereof after “years of service” the following: “, which amount shall be paid within two and one-half (2 1/2 ) months following the end of the year of Employee’s Separation from Service”.

7.      Section 9 of the Severance Agreement entitled “Tax Withholding” is hereby deleted in its entirety and the following is substituted therefor:

 

  9. Tax; Withholding; Code Section 409A. Notwithstanding anything herein to the contrary, the Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Severance Agreement (including any taxes arising under Section 409A of the Code). Employer may withhold from any benefits payable under this Severance Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

 

  (a) This Severance Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Employer shall have complete discretion to interpret and construe this Severance Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Severance Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Employer in a fashion consistent herewith, as determined in the sole and absolute discretion of the Employer. Notwithstanding anything to the contrary contained herein, the Employer reserves the right to unilaterally amend this Severance Agreement without the consent of Employee in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

 

  (b)

Neither the Employer, nor their affiliates, nor any of their directors, agents, or employees shall have any obligation to indemnify or otherwise hold the Employee harmless from any or all of such taxes. Notwithstanding anything herein to the contrary, if the Employer determines that any amounts that become due under this Severance Agreement as a result of Employee’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A, payment of such amounts shall not commence until the Employee incurs a Separation from Service. If, at the time of Employee’s Separation from Service, Employee is a “specified employee” (under Code Section 409A), any amount that the Employer determines constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Employee on account of the Employee’s Separation from Service will not be paid until


 

after the earlier of: (i) the expiration of the six (6) month period measured from the date of the Employee’s Separation from Service with the Employer; or (ii) the date of the Employee’s death (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Employee shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence, without interest. Thereafter, the Employee shall receive any remaining benefits as if there had not been an earlier delay. For the purposes of this Severance Agreement, each payment that is part of a series of installment payments shall be treated as a right to a series of separate payments within the meaning of Code Section 409A.

8.      As amended hereby, the Severance Agreement shall be and remain in full force and effect.

IN WITNESS WHEREOF, the parties have executed and delivered this Amendment to Severance Agreement to be effective as of the day and year indicated above.

 

/s/ Donald C. Wood

Donald C. Wood

 

 

FEDERAL REALTY INVESTMENT TRUST
By:   /s/ Dawn M. Becker
 

Dawn M. Becker

Executive Vice President-General Counsel and Secretary

 

 

Exhibit 10.27

Exhibit 10.27

SECOND AMENDMENT TO EXECUTIVE AGREEMENT

with Donald C. Wood

THIS SECOND AMENDMENT TO EXECUTIVE AGREEMENT (this “Second Amendment”), effective as of January 1, 2009, by and between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (“Trust”), and DONALD C. WOOD (“Executive”‘), amends that certain Executive Agreement dated as of February 22, 1999, as amended by that certain Amendment to Executive Agreement dated February 16, 2005, by and between the Trust and Executive (the “Executive Agreement”).

A.      The Trust, acting through its Board of Trustees, and Employee have determined that it is in the best interest of the Trust and Executive to modify the Executive Agreement to reflect the requirements of the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend the Executive Agreement as follows:

1.      Section 2 of the Executive Agreement is hereby amended by deleting the words “termination of Executive’s employment” in the first sentence of the introductory paragraph and replacing it with the following: “Separation from Service (as defined herein).”

2.      Section 2(a)(ii) of the Executive Agreement is hereby amended by deleting the introductory language beginning with “by Executive” and ending with “such Change in Control:” and replacing it with the following:

 

  (ii) by Executive for “Good Reason” within six (6) months following the occurrence of one or more of the following events which has continued uncured for a period of not less than thirty (30) days following written notice given by Executive to the Trust within ninety (90) days after such event occurs, unless in any case Executive specifically agrees in writing that such event shall not be Good Reason:”.

3.      Section 2(b) of the Executive Agreement is hereby amended as follows:

 

  (a) by deleting the words “employment shall be terminated” in the third full sentence thereof and replacing it with the following: “Separation from Service shall occur”;

 

  (b) by deleting the words “termination of employment” in the last sentence thereof and replacing it with the following: “Separation from Service; and

 

  (c) by deleting “(“Termination Date”)” at the end thereof.

4.      Section 3 of the Executive Agreement is hereby amended as follows:

 

  (a) by re-titling the section “Payment of Benefits upon Separation from Service”; and

 

  (b) by deleting the words “Executive’s employment with the Trust is terminated” in the introductory paragraph and replacing it with the following: “Executive incurs a Separation from Service.”


 

5.

Section 3(a) of the Executive Agreement is hereby amended by inserting at the end of the first sentence thereof the following: “which amount shall be paid as soon as possible and in any event within two and one-half (2 1/2) months following the end of the year of Executive’s Separation from Service.”

6.      Section 3(c) of the Executive Agreement is hereby amended by inserting after the word “conditions” the following: “(and according to the same timing for payment and taxation).”

7.      Section 3(d) of the Executive Agreement is hereby amended by inserting after the words “one (1) year” at the end thereof the following: “subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.”

8.      Section 3 of the Executive Agreement is hereby amended by adding at the end thereof a new Section 3(e) as follows:

 

  (e) Certain Definitions. For purposes of this Executive Agreement, in addition to the capitalized terms defined elsewhere, the following capitalized terms have the meanings indicated unless the context clearly requires otherwise:

 

  (i) “Separation from Service” means the termination of services provided by Executive to the Trust, whether voluntarily or involuntarily, as determined by the Board in accordance with Treasury Regulation Section 1.409A-1(h), as amended from time to time; and

 

  (ii) “Termination Date” means the date upon which the Executive incurs a Separation from Service from the Trust.

9.      Section 8(m) of the Executive Agreement entitled “Federal Income Tax Withholding” is hereby deleted in its entirety and the following is substituted therefor:

 

  (m) Tax; Withholding; Code Section 409A. Notwithstanding anything herein to the contrary, the Executive shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Executive Agreement (including any taxes arising under Section 409A of the Code). The Trust may withhold from any benefits payable under this Executive Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes (other than any excise tax imposed under Section 4999 of the Code or any similar tax to which the indemnity provisions of Section 6 of this Executive Agreement shall apply) as shall be required pursuant to any law or governmental regulation or ruling.

 

  (i)

This Executive Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Trust shall have complete discretion to interpret and construe this Executive Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Executive Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Trust in a fashion consistent herewith, as determined in the sole and absolute discretion of the Trust. Notwithstanding anything to the


 

contrary contained herein, the Trust reserves the right to unilaterally amend this Executive Agreement without the consent of Executive in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

 

  (ii) Neither the Trust, nor their affiliates, nor any of their directors, agents, or employees shall have any obligation to indemnify or otherwise hold the Executive harmless from any or all of such taxes. Notwithstanding anything herein to the contrary, if the Trust determines that any amounts that become due under this Executive Agreement as a result of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A, payment of such amounts shall not commence until the Executive incurs a Separation from Service. If, at the time of Executive’s Separation from Service, Executive is a “specified employee” (under Code Section 409A), any amount that the Trust determines constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Executive on account of the Executive’s Separation from Service will not be paid until after the earlier of: (i) the expiration of the six (6) month period measured from the date of the Executive’s Separation from Service with the Trust; or (ii) the date of the Executive’s death (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Executive shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence, without interest. Thereafter, the Executive shall receive any remaining benefits as if there had not been an earlier delay. For the purposes of this Executive Agreement, each payment that is part of a series of installment payments shall be treated as a right to a series of separate payments within the meaning of Code Section 409A.

10.    As amended hereby, the Executive Agreement shall be and remain in full force and effect.

IN WITNESS WHEREOF, the parties have executed and delivered this Second Amendment to Executive Agreement to be effective as of the day and year indicated above.

 

/s/ Donald C. Wood

Donald C. Wood

 

 

FEDERAL REALTY INVESTMENT TRUST
By:   /s/ Dawn M. Becker
 

Dawn M. Becker

Executive Vice President-General Counsel and Secretary

 

 

Exhibit 10.28

Exhibit 10.28

AMENDMENT TO HEALTH COVERAGE

CONTINUATION AGREEMENT

THIS AMENDMENT TO HEALTH COVERAGE CONTINUATION AGREEMENT (the “Amendment”) made and entered into as of this 1st day of January, 2009, between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (the “Trust”) and DONALD C. WOOD (the “Executive”), amends that certain Health Coverage Continuation Agreement dated as of February 16, 2005, by and between the Trust and the Executive (the “Health Agreement”).

 

RECITALS

WHEREAS, the Board of Trustees of the Trust (the “Board”), acting through its Compensation Committee, has determined that the best interests of the Trust would be served by modifying the Agreement to reflect the requirements of the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”);

NOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

1.      Section 1(g) of the Health Agreement is hereby amended by deleting the introductory paragraph and replacing it with the following:

 

  (g) “Good Reason” shall mean termination of Executive’s employment within six (6) months following the occurrence of one or more of the following events which has continued uncured for a period of not less than thirty (30) days following written notice given by Executive to the Trust within ninety (90) days after such event occurs, unless in any case Executive specifically agrees in writing that such event shall not be Good Reason:”.

2.      Section 1(i) of the Health Agreement is hereby amended by deleting the words “termination of employment” and replacing it with the following: “the date of the Executive’s Separation from Service”.

3.      Section 1(j) of the Health Agreement is hereby deleted in its entirety and the following is substituted therefor:

 

  (j) Certain Definitions. For purposes of this Health Agreement, in addition to the capitalized terms defined elsewhere, the following capitalized terms have the meanings indicated unless the context clearly requires otherwise:

 

  (i) “Separation from Service” means the termination of services provided by Executive to the Trust, whether voluntarily or involuntarily, as determined by the Board in accordance with Treasury Regulation Section 1.409A-1(h), as amended from time to time; and


  (ii) “Termination Date” means the date upon which the Executive incurs a Separation from Service from the Trust.

4.      Section 2 of the Health Agreement is hereby amended by deleting the words “Executive’s employment with the Trust terminates” from the introductory paragraph and replacing it with the following: “Executive incurs a Separation from Service”.

5.      Section 2(b) of the Health Agreement is hereby amended by inserting at the end of the second full paragraph thereof, the following: “; provided that any such payments must be paid within the same calendar year or years as such taxation would have occurred had the Trust provided the coverage pursuant to the terms of the preceding sentence.”

6.      Section 2(c) of the Health Agreement is hereby amended by inserting at the end of the first sentence thereof the following “and they prepay any remaining cost of six-months’ coverage that the Trust may require in accordance with Section 11, with the Trust making reimbursement within fourteen (14) days of the end of the 409A Suspension Period (as defined in Section 11).”

7.      Section 11 of the Health Agreement is hereby deleting in its entirety and the following is substituted therefore:

 

  11. Tax; Withholding; Code Section 409A. Notwithstanding anything herein to the contrary, the Executive shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Severance Agreement (including any taxes arising under Section 409A of the Code). The Trust may withhold from any benefits payable under this Severance Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

 

  (a) This Health Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Trust shall have complete discretion to interpret and construe this Health Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Health Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Trust in a fashion consistent herewith, as determined in the sole and absolute discretion of the Trust. Notwithstanding anything to the contrary contained herein, the Trust reserves the right to unilaterally amend this Health Agreement without the consent of the Trust in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

 

  (b)

Neither the Trust, nor their affiliates, nor any of their directors, agents, or employees shall have any obligation to indemnify or otherwise hold the Executive harmless from any or all of such taxes. Notwithstanding anything herein to the contrary, if the Trust determines that any amounts

 

2


 

that become due under this Health Agreement as a result of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A, payment of such amounts shall not commence until the Executive incurs a Separation from Service. If, at the time of Executive’s Separation from Service, Executive is a “specified employee” (under Code Section 409A), any amount that the Trust determines constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Executive on account of the Executive’s Separation from Service will not be paid until after the earlier of: (i) the expiration of the six (6) month period measured from the date of the Executive’s Separation from Service with the Trust; or (ii) the date of the Executive’s death (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Executive shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence, without interest. Thereafter, the Executive shall receive any remaining benefits as if there had not been an earlier delay. For the purposes of this Health Agreement, each payment that is part of a series of installment payments shall be treated as a right to a series of separate payments within the meaning of Code Section 409A.

8.      As amended hereby, the Health Agreement shall be and remain in full force and effect.

IN WITNESS WHEREOF, the parties have executed and delivered this Amendment to Health Agreement to be effective as of the day and year indicated above.

 

/s/ Donald C. Wood

Donald C. Wood

 

 

FEDERAL REALTY INVESTMENT TRUST
By:  

/s/ Dawn M. Becker

 

Dawn M. Becker

Executive Vice President-General Counsel and Secretary

 

3

Exhibit 10.29

Exhibit 10.29

SECOND AMENDMENT TO SEVERANCE AGREEMENT

with Jeffrey S. Berkes

THIS SECOND AMENDMENT TO SEVERANCE AGREEMENT (this “Second Amendment”), effective as of January 1, 2009, by and between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (“Employer”), and JEFFREY S. BERKES (“Employee”‘), amends that certain Severance Agreement dated as of March 1, 2000, as amended by that certain Amendment to Severance Agreement dated February 16, 2005, by and between Employer and Employee (the “Severance Agreement”).

A.      Employer, acting through its Board of Trustees, and Employee have determined that it is in the best interest of Employer and Employee to modify the Severance Agreement to reflect the requirements of the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend the Severance Agreement as follows:

1.      Section 2 of the Severance Agreement is hereby amended by inserting in the second line after “Sections 2(a) or (b)” the following: “that constitute a Separation from Service (as defined herein).”

2.      Section 2(b) of the Severance Agreement is hereby amended by deleting the introductory paragraph and replacing it with the following:

 

  (b) by Employee for “Good Reason” within six (6) months following the occurrence of one or more of the following events which has continued uncured for a period of not less than thirty (30) days following written notice given by Employee to the Employer within ninety (90) days after such event occurs, unless in any case Employee specifically agrees in writing that such event shall not be Good Reason:”.

3.      Section 2(d) of the Severance Agreement is hereby amended by inserting after the word “salary” at the end of the first sentence the following: “which amount shall be paid as soon as possible and in any event, within two and one-half (2 1/2) months following the end of the year in which the Termination Date occurs.” Section 2(d) of the Severance Agreement is further amended by inserting the following text at the end of its last sentence: “, with payment to be made within 60 days after the Employee’s Termination Date”.

4.      Section 2(g) of the Severance Agreement is hereby amended by adding at the end thereof the following: “, subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.”

5.      Section 2 of the Severance Agreement is hereby amended by adding at the end thereof a new Section 2(k) as follows:

 

  (k) Certain Definitions. For purposes of this Severance Agreement, in addition to the capitalized terms defined elsewhere, the following capitalized terms have the meanings indicated unless the context clearly requires otherwise:

 

  (i)

“Separation from Service” means the termination of services provided by Employee to the Employer, whether voluntarily or involuntarily, as


 

determined by the Board in accordance with Treasury Regulation Section 1.409A-1(h), as amended from time to time; and

 

  (ii) “Termination Date” means the date upon which the Employee incurs a Separation from Service from the Employer.

6.      Section 4(f)(i) of the Severance Agreement is hereby amended by inserting after the words “six (6) months’ pay” the following: “which amount shall be paid as soon as possible and in any event within two and one-half (2 1/2) months following the end of the year in which the Termination Date occurs.”

7.      Section 7(b) of the Severance Agreement is hereby amended as follows:

 

  (a) by deleting the words “Employee’s employment with employer is terminated” in the first sentence thereof and replacing it with the following: “Employee incurs a Separation of Service”;

 

  (b) by deleting the words “employment shall be terminated” in the third sentence thereof and replacing it with the following: “Separation from Service shall occur”;

 

  (c) by deleting the words “termination of employment” in the last sentence thereof replacing it with the following: “Separation from Service; and

 

  (d) by deleting “(“Termination Date”)” at the end thereof.

8.      Section 7(c) of the Severance Agreement is hereby amended as follows:

 

  (a) by re-titling the section “Payment of Benefits upon Separation from Service”; and

 

  (b) by deleting the words “Employee’s employment with Employer is terminated” in the introductory paragraph and replacing it with the following: “Employee incurs a Separation from Service.”

9.      Section 7(c)(i) of the Severance Agreement is hereby amended by inserting at the end of the first sentence thereof the following: “which amount shall be paid as soon as possible and in any event within two and one-half (2 1/2) months following the end of the year of Employee’s Separation from Service.”

10.    Section 7(c)(iii) of the Severance Agreement is hereby amended by inserting after the word “conditions” the following: “(and according to the same timing for payment and taxation).”

11.    Section 7(c)(iv) of the Severance Agreement is hereby amended by inserting after the words “nine (9) months” at the end thereof the following: “subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.”

12.    Section 11 of the Severance Agreement entitled “Tax; Withholding” is hereby deleted in its entirety and the following is substituted therefor:

 

  11.

Tax; Withholding; Code Section 409A. Notwithstanding anything herein to the contrary, the Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Severance Agreement (including any taxes arising under Section 409A of the Code). Employer may withhold from any benefits payable under this Severance


 

Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes (other than any excise tax imposed under Section 4999 of the Code or any similar tax to which the indemnity provisions of Section 7(e) of this Severance Agreement shall apply) as shall be required pursuant to any law or governmental regulation or ruling.

 

  (a) This Severance Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Employer shall have complete discretion to interpret and construe this Severance Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Severance Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Employer in a fashion consistent herewith, as determined in the sole and absolute discretion of the Employer. Notwithstanding anything to the contrary contained herein, the Employer reserves the right to unilaterally amend this Severance Agreement without the consent of Employee in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

 

  (b) Neither the Employer, nor their affiliates, nor any of their directors, agents, or employees shall have any obligation to indemnify or otherwise hold the Employee harmless from any or all of such taxes. Notwithstanding anything herein to the contrary, if the Employer determines that any amounts that become due under this Severance Agreement as a result of Employee’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A, payment of such amounts shall not commence until the Employee incurs a Separation from Service. If, at the time of Employee’s Separation from Service, Employee is a “specified employee” (under Code Section 409A), any amount that the Employer determines constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Employee on account of the Employee’s Separation from Service will not be paid until after the earlier of: (i) the expiration of the six (6) month period measured from the date of the Employee’s Separation from Service with the Employer; or (ii) the date of the Employee’s death (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Employee shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence, without interest. Thereafter, the Employee shall receive any remaining benefits as if there had not been an earlier delay. For the purposes of this Severance Agreement, each payment that is part of a series of installment payments shall be treated as a right to a series of separate payments within the meaning of Code Section 409A.

13.    As amended hereby, the Severance Agreement shall be and remain in full force and effect.


IN WITNESS WHEREOF, the parties have executed and delivered this Second Amendment to Severance Agreement to be effective as of the day and year indicated above.

 

/s/ Jeffrey S. Berkes

Jeffrey S. Berkes

 

FEDERAL REALTY INVESTMENT TRUST
By:   /s/ Dawn M. Becker
 

Dawn M. Becker

Executive Vice President-General Counsel and Secretary

 

 

 

Exhibit 10.30

Exhibit 10.30

SECOND AMENDMENT TO SEVERANCE AGREEMENT

with Dawn M. Becker

THIS SECOND AMENDMENT TO SEVERANCE AGREEMENT (this “Second Amendment”), effective as of January 1, 2009, by and between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (“Employer”), and DAWN M. BECKER (“Employee”‘), amends that certain Severance Agreement dated as of April 19, 2000, as amended by that certain Amendment to Severance Agreement dated February 16, 2005, by and between Employer and Employee (the “Severance Agreement”).

A.      Employer, acting through its Board of Trustees, and Employee have determined that it is in the best interest of Employer and Employee to modify the Severance Agreement to reflect the requirements of the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend the Severance Agreement as follows:

1.      Section 1 of the Severance Agreement is hereby amended by inserting in the second line after “Sections 1(a) or (b)” the following: “that constitute a Separation from Service (as defined herein).”

2.      Section 1(b) of the Severance Agreement is hereby amended by deleting the introductory paragraph and replacing it with the following:

 

  (b) by Employee for “Good Reason” within six (6) months following the occurrence of one or more of the following events which has continued uncured for a period of not less than thirty (30) days following written notice given by Employee to the Employer within ninety (90) days after such event occurs, unless in any case Employee specifically agrees in writing that such event shall not be Good Reason:”.

3.      Section 1(d) of the Severance Agreement is hereby amended by inserting after the word “salary” at the end of the first sentence the following: “which amount shall be paid as soon as possible and in any event, within two and one-half (2 1/2) months following the end of the year in which the Termination Date occurs.” Section 1(d) of the Severance Agreement is further amended by inserting the following text at the end of its last sentence: “, with payment to be made within 60 days after the Employee’s Termination Date”.

4.      Section 1(g) of the Severance Agreement is hereby amended by adding at the end thereof the following: “, subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.”

5.      Section 1 of the Severance Agreement is hereby amended by adding at the end thereof a new Section 1(k) as follows:

 

  (k) Certain Definitions. For purposes of this Severance Agreement, in addition to the capitalized terms defined elsewhere, the following capitalized terms have the meanings indicated unless the context clearly requires otherwise:

 

  (i)

“Separation from Service” means the termination of services provided by Employee to the Employer, whether voluntarily or involuntarily, as


 

determined by the Board in accordance with Treasury Regulation Section 1.409A-1(h), as amended from time to time; and

 

  (ii) “Termination Date” means the date upon which the Employee incurs a Separation from Service from the Employer.

6.      Section 3(f)(i) of the Severance Agreement is hereby amended by inserting after the words “six (6) months’ pay” the following: “which amount shall be paid as soon as possible and in any event within two and one-half (2 1/2) months following the end of the year in which the Termination Date occurs.”

7.      Section 6(b) of the Severance Agreement is hereby amended as follows:

 

  (a) by deleting the words “Employee’s employment with employer is terminated” in the first sentence thereof and replacing it with the following: “Employee incurs a Separation of Service”;

 

  (b) by deleting the words “employment shall be terminated” in the third sentence thereof and replacing it with the following: “Separation from Service shall occur”;

 

  (c) by deleting the words “termination of employment” in the last sentence thereof replacing it with the following: “Separation from Service; and

 

  (d) by deleting “(“Termination Date”)” at the end thereof.

8.      Section 6(c) of the Severance Agreement is hereby amended as follows:

 

  (a) by re-titling the section “Payment of Benefits upon Separation from Service”; and

 

  (b) by deleting the words “Employee’s employment with Employer is terminated” in the introductory paragraph and replacing it with the following: “Employee incurs a Separation from Service.”

9.      Section 6(c)(i) of the Severance Agreement is hereby amended by inserting at the end of the first sentence thereof the following: “which amount shall be paid as soon as possible and in any event within two and one-half (2 1/2) months following the end of the year of Employee’s Separation from Service.”

10.    Section 6(c)(iii) of the Severance Agreement is hereby amended by inserting after the word “conditions” the following: “(and according to the same timing for payment and taxation).”

11.    Section 6(c)(iv) of the Severance Agreement is hereby amended by inserting after the words “nine (9) months” at the end thereof the following: “subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.”

12.    Section 10 of the Severance Agreement entitled “Tax; Withholding” is hereby deleted in its entirety and the following is substituted therefor:

 

  10.

Tax; Withholding; Code Section 409A. Notwithstanding anything herein to the contrary, the Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Severance Agreement (including any taxes arising under Section 409A of the Code). Employer may withhold from any benefits payable under this Severance


 

Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes (other than any excise tax imposed under Section 4999 of the Code or any similar tax to which the indemnity provisions of Section 6(e) of this Severance Agreement shall apply) as shall be required pursuant to any law or governmental regulation or ruling.

 

  (a) This Severance Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Employer shall have complete discretion to interpret and construe this Severance Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Severance Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Employer in a fashion consistent herewith, as determined in the sole and absolute discretion of the Employer. Notwithstanding anything to the contrary contained herein, the Employer reserves the right to unilaterally amend this Severance Agreement without the consent of Employee in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

 

  (b) Neither the Employer, nor their affiliates, nor any of their directors, agents, or employees shall have any obligation to indemnify or otherwise hold the Employee harmless from any or all of such taxes. Notwithstanding anything herein to the contrary, if the Employer determines that any amounts that become due under this Severance Agreement as a result of Employee’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A, payment of such amounts shall not commence until the Employee incurs a Separation from Service. If, at the time of Employee’s Separation from Service, Employee is a “specified employee” (under Code Section 409A), any amount that the Employer determines constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Employee on account of the Employee’s Separation from Service will not be paid until after the earlier of: (i) the expiration of the six (6) month period measured from the date of the Employee’s Separation from Service with the Employer; or (ii) the date of the Employee’s death (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Employee shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence, without interest. Thereafter, the Employee shall receive any remaining benefits as if there had not been an earlier delay. For the purposes of this Severance Agreement, each payment that is part of a series of installment payments shall be treated as a right to a series of separate payments within the meaning of Code Section 409A.

13.    As amended hereby, the Severance Agreement shall be and remain in full force and effect.


IN WITNESS WHEREOF, the parties have executed and delivered this Second Amendment to Severance Agreement to be effective as of the day and year indicated above.

 

/s/ Dawn M. Becker

Dawn M. Becker

 

 

FEDERAL REALTY INVESTMENT TRUST
By:   /s/ Donald C. Wood
 

Donald C. Wood

President and Chief Executive Officer

 

 

 

Exhibit 10.31

Exhibit 10.31

AMENDMENT TO CHANGE IN CONTROL AGREEMENT

with Andrew P. Blocher

THIS AMENDMENT TO CHANGE IN CONTROL AGREEMENT (this “Amendment”), effective as of January 1, 2009, by and between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (“Employer”), and ANDREW P. BLOCHER (“Employee”), amends that certain Change in Control Agreement dated as of February 12, 2007, by and between Employer and Employee (the “Change in Control Agreement”).

A.      Employer, acting through its Board of Trustees, and Employee have determined that it is in the best interest of Employer and Employee to modify the Change in Control Agreement to reflect the requirements of the final regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend the Change in Control Agreement as follows:

1.      Section 1(a)(v) of the Change in Control Agreement is hereby amended as follows:

 

  (a) by deleting the words “Employee’s employment with employer is terminated” in the first sentence thereof and replacing it with the following: “Employee incurs a Separation of Service (as defined herein)”;

 

  (b) by deleting the word “termination:”in the first sentence thereof and replacing it with the following: “Separation of Service:”;

 

  (c) by deleting the words “date of such termination of Employee’s employment” at the end thereof and replacing it with the following: “Employee’s Termination Date (as defined herein)”.

2.      Section 1(b) of the Change in Control Agreement is hereby amended by deleting the words “Employee’s employment with Employer is terminated” in the introductory paragraph and replacing it with the following: “Employee incurs a Separation of Service”.

3.      Section 1(b)(i)(B) is hereby deleted in its entirety and the following is substituted therefore:

 

  (B) by Employee for “Good Reason” within six (6) months following the occurrence of one or more of the following events which has continued uncured for a period of not less than thirty (30) days following written notice given by Employee to the Employer within ninety (90) days after such event occurs, unless in any case Employee specifically agrees in writing that such event shall not be Good Reason:”.

4.      Section 1(b)(ii) of the Change in Control Agreement is hereby amended as follows:

 

  (a) by deleting the words “employment shall be terminated” in the third full sentence thereof beginning “For purposes of this Agreement” and replacing it with the following: “Separation from Service shall occur”;


  (b) by deleting the words “termination of employment” in the last sentence thereof and replacing it with the following: “Separation from Service; and

 

  (c) by deleting “(“Termination Date”)” at the end thereof.

5.      Section 1(c) of the Change in Control Agreement is hereby amended as follows:

 

  (a) by re-titling the section “Payment of Benefits upon Separation from Service”; and

 

  (b) by deleting the words “Employee’s employment with Employer is terminated” in the introductory paragraph and replacing it with the following: “Employee incurs a Separation from Service.”

6.      Section 1(c)(i) of the Change in Control Agreement is hereby amended as follows:

(a)      by inserting at the end of the first sentence thereof the following: “which amount shall be paid as soon as possible and in any event within two and one-half (2 1/2) months following the end of the year in which the Termination Date occurs”; and

(b)      by inserting at the end of the fourth full sentence thereof beginning “Payment also will be made” the following language: “, with payment to be made within sixty (60) days after the Employee’s Termination Date”.

7.      Section 1(c)(iii) of the Change in Control Agreement is hereby amended by inserting after the word “conditions” the following: “(and according to the same timing for payment and taxation).”

8.      Section 1(c)(iv) of the Change in Control Agreement is hereby amended by inserting after the words “six (6) months” at the end thereof the following: “subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.”

9.      Section 1 of the Change in Control Agreement is hereby amended by adding at the end thereof a new Section 1(h) as follows:

 

  (h) Certain Definitions. For purposes of this Change in Control Agreement, in addition to the capitalized terms defined elsewhere, the following capitalized terms have the meanings indicated unless the context clearly requires otherwise:

 

  (i) “Separation from Service” means the termination of services provided by Employee to the Employer, whether voluntarily or involuntarily, as determined by the Board in accordance with Treasury Regulation Section 1.409A-1(h), as amended from time to time; and

 

  (ii) “Termination Date” means the date upon which the Employee incurs a Separation from Service from the Employer.

10.    Section 4 of the Change in Control Agreement entitled “Tax; Withholding” is hereby deleted in its entirety and the following is substituted therefor:

 

  4.

Tax; Withholding; Code Section 409A. Notwithstanding anything herein to the contrary, the Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Change in Control Agreement (including any taxes arising under Section 409A of the Code). Employer may withhold from any benefits payable under this Change in Control Agreement, and pay over to the appropriate authority, all federal, state,


 

county, city or other taxes (other than any excise tax imposed under Section 4999 of the Code or any similar tax to which the indemnity provisions of Section 1(d) of this Change in Control Agreement shall apply) as shall be required pursuant to any law or governmental regulation or ruling.

 

  (a) This Change in Control Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Employer shall have complete discretion to interpret and construe this Change in Control Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Change in Control Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Employer in a fashion consistent herewith, as determined in the sole and absolute discretion of the Employer. Notwithstanding anything to the contrary contained herein, the Employer reserves the right to unilaterally amend this Change in Control Agreement without the consent of Employee in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

 

  (b) Neither the Employer, nor their affiliates, nor any of their directors, agents, or employees shall have any obligation to indemnify or otherwise hold the Employee harmless from any or all of such taxes. Notwithstanding anything herein to the contrary, if the Employer determines that any amounts that become due under this Change in Control Agreement as a result of Employee’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A, payment of such amounts shall not commence until the Employee incurs a Separation from Service. If, at the time of Employee’s Separation from Service, Employee is a “specified employee” (under Code Section 409A), any amount that the Employer determines constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Employee on account of the Employee’s Separation from Service will not be paid until after the earlier of: (i) the expiration of the six (6) month period measured from the date of the Employee’s Separation from Service with the Employer; or (ii) the date of the Employee’s death (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Employee shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence, without interest. Thereafter, the Employee shall receive any remaining benefits as if there had not been an earlier delay. For the purposes of this Change in Control Agreement, each payment that is part of a series of installment payments shall be treated as a right to a series of separate payments within the meaning of Code Section 409A.

11.    As amended hereby, the Change in Control Agreement shall be and remain in full force and effect.


IN WITNESS WHEREOF, the parties have executed and delivered this Amendment to Change in Control Agreement to be effective as of the day and year indicated above.

 

/s/ Andrew P. Blocher

Andrew P. Blocher

 

 

 

FEDERAL REALTY INVESTMENT TRUST
By:   /s/ Dawn M. Becker
 

Dawn M. Becker

Executive Vice President-General Counsel and Secretary

 

 

Exhibit 10.32

Exhibit 10.32

AMENDMENT TO STOCK OPTION AGREEMENTS

This Amendment to Stock Option Agreements (“Amendment”) is made and entered into as of the 17th day of February, 2009, by and between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (“Trust”), and ANDREW P. BLOCHER (“Executive”).

WHEREAS, Executive and the Trust have entered into the following stock option agreements: (a) Combined Incentive and Non-Qualified Stock Option Agreement dated February 16, 2006; (b) Combined Incentive and Non-Qualified Stock Option Agreement dated February 12, 2007; and (c) Combined Incentive and Non-Qualified Stock Option Agreement dated February 10, 2008 (collectively referred to hereinafter as the “Stock Option Agreements”); and

WHEREAS, since the execution of the Option Agreements, Executive has been promoted and is now an executive officer of the Trust, and Executive and the Trust wish to amend the Stock Option Agreements.

NOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

1.      Sections 2(d), 2(f) and 2(g) of each of the Stock Option Agreements are hereby amended by deleting the phrase “three (3) months” and replacing it with the phrase “one (1) year.”

2.      Capitalized terms used in this Amendment, unless otherwise defined herein, have the respective meanings given to such terms in the Stock Option Agreements.

3.      Except as specifically modified hereby, the Stock Option Agreements remain in full force and effect, and the Trust and Executive hereby ratify and reaffirm each and all of the terms and provisions of the Stock Option Agreements as modified hereby.

IN WITNESS WHEREOF, the parties have executed and delivered this Amendment to be effective as of the day and year indicated above.

 

FEDERAL REALTY INVESTMENT TRUST
By:   /s/    Dawn M. Becker

Name:

Title:

 

Dawn M. Becker

Executive Vice President-General Counsel and Secretary

 

 

 

 

WITNESS:   EXECUTIVE

/s/    Darlene M. Hough

 

/s/    Andrew P. Blocher

 

Andrew P. Blocher

Exhibit 10.33

Exhibit 10.33

FEDERAL REALTY INVESTMENT TRUST

RESTRICTED SHARE AWARD AGREEMENT

(Award under the Federal Realty Investment Trust

Amended and Restated 2003 Long Term Incentive Award Program)

February 17, 2009

The parties to this Restricted Share Award Agreement (this “Agreement”) are Federal Realty Investment Trust, a Maryland real estate investment trust (the “Trust”), and Andrew P. Blocher, an individual employee of the Trust (the “Key Employee”)

The Board of Trustees of the Trust (the “Board of Trustees”) has authorized the award by the Trust to the Key Employee, under the Trust’s 2001 Long-Term Incentive Plan (the “Plan”) of a Restricted Share Award for a certain number of shares of beneficial interest of the Trust (the “Shares”), subject to certain restrictions and covenants on the part of Key Employee. The parties hereto desire to set forth in this Agreement their respective rights and obligations with respect to such Shares.

Capitalized terms used in this Agreement, unless otherwise defined herein, have the respective meanings given to such terms in the Plan. The terms of the Plan are incorporated by reference as if set forth herein in their entirety. To the extent this Restricted Share Award Agreement is in any way inconsistent with the Plan, the terms and provisions of the Plan shall prevail.

In consideration of the covenants set forth in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:

 

  1. Award of Restricted Shares.

(a) The Trust hereby confirms the grant to the Key Employee, as of February 17, 2009 (the “Grant Date”), of Sixteen Thousand Ninety-Nine (16,099) Shares (the “Restricted Shares”), subject to the restrictions and other terms and conditions set forth herein and in the Plan.

(b) On or as soon as practicable after the Grant Date, the Trust shall cause one or more stock certificates representing the Restricted Shares to be registered in the name of the Key Employee. Such stock certificate or certificates shall be subject to such stop-transfer orders and other restrictions as the Board of Trustees or any committee thereof may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Shares are listed and any applicable federal or state securities law, and the Trust may cause a legend or legends to be placed on such certificate or certificates to make appropriate reference to such restrictions.

The certificate or certificates representing the Restricted Shares shall be held in custody by the Chief Financial Officer of the Trust until the Restricted Period (as hereinafter defined in Paragraph 3) with respect thereto shall have lapsed. Simultaneously with the execution and delivery of this Agreement, the Key Employee shall deliver to the Trust one or more undated stock powers endorsed in blank relating to the Restricted Shares. The Trust shall deliver or cause to be delivered to the Key Employee or, in the case of the Key Employee’s death, to the Key Employee’s beneficiary, one or more stock certificates for the appropriate number of Shares, free of all such restrictions, as to which the restrictions shall have expired. Upon forfeiture, in accordance with Paragraph 4, of all or any portion of the Restricted Shares, the certificate or certificates representing the forfeited Restricted Shares shall be canceled.

 

  2. Restrictions Applicable to Restricted Shares.

(a) Beginning on the Grant Date, the Key Employee shall have all rights and privileges of a stockholder with respect to the Restricted Shares, except that the following restrictions shall apply:


(i) none of the Restricted Shares may be assigned or transferred (other than by will or the laws of descent and distribution, or in the Committee’s discretion, pursuant to a domestic relations order within the meaning of Rule 16a-12 of the Securities Exchange Act of 1934, as amended) during the Restricted Period (as hereinafter defined in Paragraph 3);

(ii) all or a portion of the Restricted Shares may be forfeited in accordance with Paragraph 4; and

(iii) any Shares distributed as a dividend or otherwise with respect to any Restricted Shares as to which the restrictions have not yet lapsed shall be subject to the same restrictions as such Restricted Shares and shall be represented by book entry and held in the same manner as the Restricted Shares with respect to which they were distributed.

Any attempt to dispose of Restricted Shares in a manner contrary to the restrictions set forth in this Agreement shall be null, void and ineffective. As the restrictions set forth in this Paragraph 2 hereof lapse in accordance with the terms of this Agreement as to all or a portion of the Restricted Shares, such shares shall no longer be considered Restricted Shares for purposes of this Agreement.

 

  3. Restricted Period.

(a) The restrictions set forth in Paragraph 2 shall apply for a period (the “Restricted Period”) from the Grant Date until such Restricted Period lapses as follows:

(i) with respect to Five Thousand Three Hundred Sixty-Six (5,366) Restricted Shares, the Restricted Period shall lapse on February 17, 2012;

(ii) with respect to an additional Five Thousand Three Hundred Sixty-Seven (5,367) Restricted Shares, the Restricted Period shall lapse on February 17, 2013; and

(iii) with respect to the remaining Five Thousand Three Hundred Sixty-Six (5,366) Restricted Shares, the Restricted Period shall lapse on February 17, 2014;

provided, however, that the Restricted Period for any particular Restricted Shares shall not lapse on the date set forth above unless the Key Employee has tendered to the Trust, on or before that date, the amount of any state and federal withholding tax obligation which will be imposed on the Trust by reason of the lapsing of the Restricted Period for such Restricted Shares on that date.

(b) Notwithstanding the foregoing and subject to the proviso below, the Restricted Period shall lapse as follows:

(i) as to all Restricted Shares in the event of the death or Disability of the Key Employee;

(ii) as to: (A) 50% of the then unvested Restricted Shares in the event of the Key Employee’s retirement on or after the Key Employee reaches the age of 58 but before the Key Employee reaches the age of 62; (B) 75% of the then unvested Restricted Shares in the event of the Key Employee’s retirement on or after the Key Employee reaches the age of 62 but before the Key Employee reaches the age of 65; and (C) all of the Restricted Shares in the event of the Key Employee’s retirement on or after the Key Employee reaches the age of 65;

(iii) as to all Restricted Shares in the event that the Key Employee is discharged by the Trust without Cause as defined in the Plan and at the time of such discharge, the individual holding the title of Chief Executive Officer of the Trust is not the same individual that holds the title of Chief Executive Officer of the Trust as of the date of this Agreement;

provided in any case that the Key Employee or his legal representative shall first tender, within ninety (90) days after the death, Disability or discharge without Cause, the amount of any state and federal withholding tax obligation which will be imposed on the Trust by reason of the lapsing of the Restricted Period for such Restricted Shares. For purposes of this Agreement, “Normal Retirement Date” means the date on which the Key Employee terminates active employment with the Trust on or after attainment of age 65, but does not include termination of the Key


Employee’s employment by the Trust for Cause, and “Other Retirement Date” means the date, on or after the Key Employee’s attainment of age 55 but earlier than the Key Employee’s Normal Retirement Date, which is specifically approved and designated in writing by the Committee to be the date upon which the Key Employee retires for purposes of the Plan.

(c) Also notwithstanding the foregoing, the Restricted Period shall lapse as to all Restricted Shares if the Key Employee shall incur an Involuntary Termination (as defined in the Plan) during the one year period commencing with the occurrence of a Change in Control, and in such event, the Trust shall deliver or cause to be delivered to the Key Employee within ten (10) business days after the Involuntary Termination one or more stock certificates representing those Shares as to which the Restricted Period shall have lapsed, provided that the Key Employee shall first tender the amount of any state and federal withholding tax obligation which will be imposed on the Trust by reason of the lapsing of the Restricted Period for such Restricted Shares.

 

  4. Forfeiture.

If there is a termination of the Key Employee’s Service with the Trust for any reason including but not limited to a discharge by the Trust without Cause as defined in the Plan and at the time of such discharge, the individual holding the title of Chief Executive Officer of the Trust is the same individual that holds the title of Chief Executive Officer of the Trust as of the date of this Agreement, then all rights of the Key Employee to any and all then-remaining Restricted Shares, after giving application to Paragraphs 3(a), (b), and 3(c), shall terminate and be forfeited. In addition, in the event the Key Employee or his legal representative fails to tender to the Trust any required tax withholding amount in accordance with Paragraphs 3(a), 3(b), or 3(c) above by the date specified therein, then the Trust shall retain a portion of the Restricted Shares sufficient to meet its tax withholding obligation.

 

  5. Assignment.

This Agreement shall be binding upon and inure to the benefit of the heirs and representatives of the Key Employee and the assigns and successors of the Trust, but neither this Agreement nor any rights hereunder shall be assignable or otherwise subject to hypothecation by the Key Employee.

 

  6. Entire Agreement; Amendment.

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and shall supersede all prior agreements and understandings, oral or written, between the parties with respect thereto. This Agreement may be amended at any time by written agreement of the parties hereto. The terms set forth in this Agreement shall control over any contrary terms set forth in that certain Severance Agreement of even date herewith between Key Employee and the Trust.

 

  7. Governing Law.

This Agreement and its validity, interpretation, performance and enforcement shall be governed by the laws of the State of Maryland other than the conflict of laws provisions of such laws, and shall be construed in accordance therewith.

 

  8. Severability.

If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not so held invalid, and each such other provision shall to the full extent consistent with law continue in full force and effect. If any provision of this Agreement shall be held invalid in part, such invalidity shall in no way affect the rest of such provision not held so invalid, and the rest of such provision, together with all other provisions of this Agreement, shall to the full extent consistent with law continue in full force and effect.

 

  9. Continued Employment.

This Agreement shall not confer upon the Key Employee any right with respect to continuance of employment by the Trust.


  10. Certain References.

References to the Key Employee in any provision of this Agreement under circumstances where the provision should logically be construed to apply to the Key Employee’s executors or the administrators, or the person or persons to whom all or any portion of the Restricted Shares may be transferred by will or the laws of descent and distribution, shall be deemed to include such person or persons.

 

  11. Section 83(b) Election.

The Key Employee acknowledges that it is the Key Employee’s sole responsibility, and not the Trust’s, to file a timely election under section 83(b) of the Internal Revenue Code, of 1986, as amended. The Key Employee acknowledges that he or she is relying on his or her own advisors with respect to the decision as to whether or not to file any section 83(b) election.

12. Taxes, Withholding, and Code Section 409A. Notwithstanding anything herein to the contrary, the Key Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Agreement (including any taxes arising under Section 409A of the Code). The Trust may withhold from any benefits payable under this Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

This Agreement is intended to be exempt from Code Section 409A, and the Trust shall have complete discretion to interpret and construe this Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Trust in a fashion consistent herewith, as determined in the sole and absolute discretion of the Trust. Notwithstanding anything to the contrary contained herein, the Trust reserves the right to unilaterally amend this Agreement without the consent of any Key Employee in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

IN WITNESS WHEREOF, the Trust has caused this Agreement to be duly executed and the Key Employee has hereunto set his hand effective as of the day and year first above written.

 

 

   

FEDERAL REALTY INVESTMENT TRUST

     

By:

  /s/ Dawn M. Becker
     

Name:

Title:

 

Dawn M. Becker

Executive Vice President-General Counsel

and Secretary

 

 

WITNESS:

   

KEY EMPLOYEE

/s/ Darlene M. Hough    

By:

  /s/ Andrew P. Blocher
      Name:   Andrew P. Blocher
Exhibit 10.34

Exhibit 10.34

FEDERAL REALTY INVESTMENT TRUST

COMBINED INCENTIVE AND NON-QUALIFIED STOCK OPTION AGREEMENT

(Award under the Federal Realty Investment Trust

Amended and Restated 2003 Long Term Incentive Award Program)

February 17, 2009

The parties to this Combined Incentive and Non-Qualified Stock Option Agreement (this “Agreement”) are Federal Realty Investment Trust, a Maryland real estate investment trust (the “Trust”), and Andrew P. Blocher, an individual employee of the Trust (the “Key Employee”).

The Board of Trustees of the Trust (the “Board of Trustees”) has authorized the award by the Trust to the Key Employee, under the Trust’s 2001 Long-Term Incentive Plan (the “Plan”): (a) options that qualify as “Incentive Stock Options” within the meaning of Section 422 or any successor provision of the Internal Revenue Code of 1986, as amended (“Code”), and/or (b) options not intended to qualify as Incentive Stock Options (“Non-Qualified Stock Options”), subject to certain restrictions and covenants on the part of Key Employee as set forth herein. The parties hereto desire to set forth in this Agreement their respective rights and obligations with respect to such Incentive Stock Options and Non-Qualified Stock Options.

Capitalized terms used in this Agreement, unless otherwise defined herein, have the respective meanings given to such terms in the Plan.

In consideration of the covenants set forth in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:

1. Award of Options.

(a) Number of Shares and Price. The Trust hereby grants to the Key Employee an option (“Option”) to purchase the number of Shares set forth on the last page of this Agreement. The exercise price per Share of the Option shall be as is set forth on the last page of this Agreement, such price being the Fair Market Value per Share on the Grant Date of the Option. The portion of the Option indicated on the last page of this Agreement as an Incentive Stock Option is intended to be an Incentive Stock Option; provided, however, that to the extent, but only to the extent, that the provisions of this Agreement or the nature of any actions taken by the Key Employee are inconsistent with the treatment of such portion of the Option as an Incentive Stock Option, such portion of the Option shall be deemed a Non-Qualified Stock Option. The other portion of the Option indicated on the last page of this Agreement is a Non-Qualified Stock Option.

(b) Term and Exercise. The Option shall expire ten (10) years from the Grant Date, subject to earlier termination as set forth in Section 3. Subject to the provisions of Sections 2 and 3, the Option shall become exercisable in installments as set forth on the last page of this Agreement.

2. Exercise of Option Upon Termination of Service.

(a) Retirement. Upon the Key Employee’s termination of Service by reason of retirement and notwithstanding anything to the contrary set forth in this Agreement, some or all of the Options shall become immediately exercisable as follows: (i) 50% of the then unexercisable Options shall become immediately exercisable in the event of the Key Employee’s retirement on or after the Key Employee reaches the age of 58 (“Permitted Retirement Date”) but before the Key Employee reaches the age of 62; (ii) 75% of the then unexercisable Options shall become immediately exercisable in the event of the Key Employee’s retirement on or after the Key Employee reaches the age of 62 but before the Key Employee reaches the age of 65; and (iii) all of the then unexercisable Options shall become immediately exercisable in the event of the Key Employee’s retirement on or after the Key Employee reaches the age of 65. The Key Employee shall have a period of two years after such termination of Service by reason of retirement to exercise all or a part of the Option to the extent that it was


exercisable upon or as a result of such termination of Service as aforesaid. In no event, however, may the Option be exercised later than the expiration date described in Section 1(b).

(b) Death. In the event of the death of the Key Employee while employed by the Trust, all Options shall become immediately exercisable notwithstanding anything to the contrary set forth in this Agreement, and the Key Employee’s beneficiary shall have a period of two years after the Key Employee’s death to exercise all or a part of the Option to the extent that it was exercisable upon or as a result of the Key Employee’s death as aforesaid. In no event, however, may the Option be exercised later than the expiration date described in Section 1(b). Notwithstanding the foregoing, the provisions of this Section 2(b) shall not extend any of the times periods for a Key Employee to exercise all or part of the Option which have been established by any of Sections 2(a), (c), (d), (e), (f) or (g).

(c) Disability. Upon the Key Employee’s termination of Service by reason of Disability, all Options shall become immediately exercisable notwithstanding anything to the contrary set forth in this Agreement, and the Key Employee shall have a period of two years after such termination of Service to exercise all or a part of the Option to the extent that it was exercisable upon or became exercisable as a result of such termination of Service by reason of Disability. In no event, however, may the Option be exercised later than the expiration date described in Section 1(b).

(d) Termination without Cause. If Key Employee’s Service is terminated without Cause and at the time of such termination, the individual holding the title of Chief Executive Officer of the Trust is the same individual that holds the title of Chief Executive Officer of the Trust as of the date of this Agreement, then Key Employee shall have a period of one (1) year from the date of such termination of Service to exercise all or any part of the Option to the extent it was exercisable at the date of termination of Service and all or any portion of the Option that was not exercisable at the date of termination of the Service shall be forfeited. If Key Employee’s Service is terminated without Cause and at the time of such termination, the individual holding the title of Chief Executive Officer of the Trust is not the same individual that holds the title of Chief Executive Officer of the Trust as of the date of this Agreement, then all Options shall become immediately exercisable notwithstanding anything to the contrary set forth in this Agreement, and the Key Employee shall have a period of one (1) year after such termination of Service to exercise all or any part of the Option to the extent that it was exercisable upon or became exercisable as a result of such termination of Service. In no event may any Option be exercised later than the expiration date described in Section 1(b).

(e) Termination for Cause. Upon the Key Employee’s termination of Service for Cause, the Key Employee’s right to exercise all of any part of the Option, to the extent it was exercisable at the date of termination of Service, shall terminate at the date of termination of Service. In no event may the Option be exercised later than the expiration date described in Section 1(b).

(f) Change in Control. If the Key Employee incurs an Involuntary Termination within the one year period commencing with a Change in Control, the Option, to the extent it is outstanding and unexercised on the date of such Involuntary Termination, shall become immediately and fully exercisable for a period of one (1) year from the date of such termination of Service. In no event, however, may the Option be exercised later than the expiration date described in Section 1(b). The provisions of this Section 3(f) shall not be applicable to the Option if such Change in Control results from the Key Employee’s beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Shares or Trust Voting Securities.

(g) Any other Termination of Service. Upon the Key Employee’s termination of Service for any reason other than as set forth in Sections 2(a) through (f), the Key Employee shall have a period of one (1) year from the date of such termination of Service to exercise all or any part of the Option to the extent it was exercisable at the date of termination of Service. In no event may the Option be exercised later than the expiration date described in Section 1(b).


3. Forfeiture.

To the extent all or any part of the Option was not exercisable as of the date of termination of Service or did not become exercisable as a result of the termination of Service as provided in Section 2, the unexercisable portion of the Option shall expire at the date of such termination of Service.

4. Exercise Procedures.

(a) Method of Exercise. The Option shall be exercisable by written notice to the Trust, which must be received by the Secretary of the Trust not later than 5:00 P.M. local time at the principal executive office of the Trust on the expiration date of the Option. Such written notice shall set forth: (i) the number of Shares being purchased and whether those Shares are issuable as a result of the exercise of the Incentive Stock Option portion of the Option or the Non-Qualified Stock Option portion of the Option; (ii) the total exercise price for the Shares being purchased; (iii) the exact name as it should appear on the stock certificate(s) to be issued for the Shares being purchased; and (iv) the address to which the stock certificate(s) should be sent.

(b) Payment of Exercise Price. The exercise price of Shares purchased upon exercise of the Option shall be paid in full: (i) in cash; (ii) by delivery to the Trust of Shares which if acquired from the Trust shall have been held by the Key Employee for at least six (6) months; (iii) in any combination of cash and Shares; or (iv) by delivery of such other consideration as the Committee deems appropriate and in compliance with applicable law (including payment in accordance with a cashless exercise program under which, if so instructed by the Key Employee, Shares may be issued directly to the Key Employee’s broker or dealer against receipt of the exercise price in cash from the broker or dealer).

In the event that any Shares shall be transferred to the Trust to satisfy all or any part of the exercise price, the part of the exercise price deemed to have been satisfied by such transfer of Shares shall be equal to the product derived by multiplying the Fair Market Value as of the date of exercise times the number of Shares transferred to the Trust. The Key Employee may not transfer to the Trust in satisfaction of the exercise price any fraction of a Share, and any portion of the exercise price that would represent less than a full Share must be paid in cash by the Key Employee. If payment in full or part is to be made in the form of Restricted Shares, an equivalent number of Shares issued on exercise of the Option shall be subject to the same restrictions and conditions for the remainder of the Award Period applicable to the Restricted Shares surrendered therefor.

(c) Delivery of Certificate. Subject to Section 8 hereof, certificates for the purchased Shares will be issued and delivered to the Key Employee as soon as practicable after the receipt of payment of the exercise price in accordance with Section 4(b) above; provided, however, that delivery of any such Shares shall be deemed effected for all purposes when a stock transfer agent of the Trust shall have deposited such certificates in the United States mail, addressed to Key Employee, at the address set forth on the last page of this Agreement or to such other address as Key Employee may from time to time designate in a written notice to the Trust. The Key Employee shall not be deemed for any purpose to be a shareholder of the Trust in respect of any Shares as to which the Option shall not have been exercised, as herein provided, until such Shares have been issued to Key Employee by the Trust hereunder.

5. Plan Provisions Control Option Terms; Modifications.

The Option is granted pursuant and subject to the terms and conditions of the Plan, the provisions of which are incorporated herein by reference. In the event any provision of this Agreement shall conflict with any of the terms in the Plan as constituted on the Grant Date, the terms of the Plan as constituted on the Grant Date shall control. The Option shall not be modified after the Grant Date except by express written agreement between the Trust and the Key Employee; provided, however, that any such modification: (a) shall not be inconsistent with the terms of the Plan; and (b) shall be approved by the Committee.

6. Limitations on Transfer.

Except as provided in this Section 6, the Option may not be assigned or transferred other than by will or the laws of descent and distribution. The Key Employee may transfer, in a not for value transfer, all or part of this Option that is a Non-Qualified Stock Option to any Family Member (as defined in the Plan). For the purpose of this Section 6, a “not for value” transfer is a transfer which is: (a) a gift; (b) a transfer under a domestic relations order in settlement of marital property rights; or (c) a transfer to an entity in which more than fifty percent of the voting


interests are owned by Family Members (or the Key Employee) in exchange for an interest in that entity. Following a transfer under this Section 6, the Option shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer. Subsequent transfers of transferred Options are prohibited except to Family Members of the original Key Employee in accordance with this Section 6 or by will or the laws of descent and distribution. The Key Employee’s beneficiary may exercise the Key Employee’s rights hereunder only to the extent they were exercisable under this Agreement at the date of the death of the Key Employee and are otherwise currently exercisable.

7. Taxes.

The Trust shall be entitled to withhold (or secure payment from the Key Employee in lieu of withholding) the amount of any withholding or other tax required by law to be withheld or paid by the Trust with respect to any Shares issuable under this Agreement, or upon a disqualifying disposition of Shares received pursuant to the exercise of the portion of the Option that is an Incentive Stock Option, and the Trust may defer issuance of Shares upon the exercise of the Option unless the Trust is indemnified to its satisfaction against any liability for any such tax. The amount of such withholding or tax payment shall be determined by the Committee or its delegate and shall be payable by the Key Employee at such time as the Committee determines. The Key Employee may satisfy his or her tax withholding obligation by the payment of cash to the Trust and/or by the withholding from the Option, at the appropriate time, of a number of Shares sufficient, based upon the Fair Market Value of such Shares, to satisfy such tax withholding requirements. The Committee shall be authorized, in its sole discretion, to establish such rules and procedures relating to any such withholding methods as it deems necessary or appropriate, including, without limitation, rules and procedures relating to elections to have Shares withheld upon exercise of the Option to meet such withholding obligations.

8. No Exercise in Violation of Law.

Notwithstanding any of the provisions of this Agreement, the Key Employee hereby agrees that he or she will not exercise the Option granted hereby, and that the Trust will not be obligated to issue any Shares to the Key Employee hereunder, if the exercise thereof or the issuance of such Shares shall constitute a violation by the Key Employee or the Trust of any provision of any law or regulation of any governmental authority. Any determination in this connection by the Committee shall be final, binding and conclusive.

9. Taxes, Withholding, and Code Section 409A. Notwithstanding anything herein to the contrary, the Key Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Agreement (including any taxes arising under Section 409A of the Code). The Trust may withhold from any benefits payable under this Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

This Agreement is intended to be exempt from Code Section 409A, and the Trust shall have complete discretion to interpret and construe this Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Trust in a fashion consistent herewith, as determined in the sole and absolute discretion of the Trust. Notwithstanding anything to the contrary contained herein, the Trust reserves the right to unilaterally amend this Agreement without the consent of any Key Employee in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

10. Entire Agreement; Amendment.

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and shall supersede all prior agreements and understandings, oral or written, between the parties with respect thereto. This Agreement may be amended at any time by written agreement of the parties hereto. The terms set forth in this Agreement shall control over any contrary terms set forth in that certain Severance Agreement of even date herewith between Key Employee and the Trust.


IN WITNESS WHEREOF, the Trust has caused this Agreement to be duly executed and the Key Employee has hereunto set his hand effective as of the day and year first above written.

 

 

 

FEDERAL REALTY INVESTMENT TRUST

  By:     /s/ Dawn M. Becker
  Name:     Dawn M. Becker
  Title:    

Executive Vice President-General Counsel

and Secretary

 

WITNESS:

 

KEY EMPLOYEE

/s/ Darlene M. Hough

 

By:

    /s/ Andrew P. Blocher
  Name:     Andrew P. Blocher


GRANT DATE: February 17, 2009

 

NUMBER OF SHARES SUBJECT TO THE OPTION:   42,313 SHARES      
        Incentive Stock Option:   2,710 SHARES      
        Non-Qualified Stock Option:   39,603 SHARES      
       
EXERCISE PRICE PER SHARE: $43.48        
       
INSTALLMENT EXERCISE SCHEDULE        
       

 

 

      Cumulative Number of Shares in
Respect of which Option is Exercisable

Anniversary of

Grant Date

   Incentive    Non-Qualified

Prior to 1st

   0    0

On and After 1st – Prior to 2nd

   0    0

On and After 2nd – Prior to 3rd

   0    0

On and After 3rd – Prior to 4th

   1    14,103

On and After 4th – Prior to 5th

   411    27,798

On and After 5th

   2,710    39,603

 

NOTICE ADDRESSES:

 

IF TO THE TRUST:   IF TO THE KEY EMPLOYEE:  
   
Federal Realty Investment Trust   Andrew P. Blocher  

1626 East Jefferson Street

  2319 Gerken Avenue  

Rockville, Maryland 20852-4041

  Vienna, VA 22181  

Attention: Secretary

   
Exhibit 10.35

Exhibit 10.35

SEVERANCE AGREEMENT

THIS SEVERANCE AGREEMENT (“Severance Agreement”), made and entered into as of this 17th day of February, 2009 by and between FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment trust (“Employer”), and ANDREW P. BLOCHER (“Employee”).

WHEREAS, Employee currently serves as Employer’s Senior Vice President-Chief Financial Officer and Treasurer. The Employer and the Employee wish to set forth the terms of a severance agreement for Employee;

NOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained and of other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1. Termination Without Cause. In the event that Employee’s employment with Employer is terminated under any of the circumstances in Sections 1(a) or 1(b) that constitute a Separation from Service (as defined herein), Employee will be deemed to have been Terminated Without Cause and shall receive payments and benefits as described in this Section 1:

 

  (a) by Employer other than with Cause (as “Cause” is defined in Section 3, hereof);

 

  (b) by Employee for “Good Reason” within six (6) months following the occurrence of one or more of the following events which has continued uncured for a period of not less than thirty (30) days following written notice given by Employee to the Employer within ninety (90) days after such event occurs, unless in any case Employee specifically agrees in writing that such event shall not be Good Reason:

 

  (i) the nature of Employee’s duties or the scope of Employee’s responsibilities or authority as of the date first written above are materially modified by Employer without Employee’s written consent where such material modification constitutes an actual or constructive demotion of Employee; provided, however, that a change in the position(s) to whom Employee reports shall not by itself constitute a material modification of Employee’s responsibilities; provided, further, that if Employee voluntarily becomes an employee of an affiliate of the Employer in connection with a Spin-off (as defined in Section 14) of that affiliate, the nature of Employee’s duties and the scope of responsibilities and authority referred to above in this paragraph (i) shall mean those as in effect as of the first day of employment with the affiliate following the Spin-off and not those in effect with the Employer as of the date first written above;

 

  (ii) Employer changes the location of its principal office to outside a fifty (50) mile radius of the office where the Employee is headquartered; and

 

  (iii) Employer’s setting of Employee’s base salary for any year at an amount which is less than ninety percent (90%) of the greater of (A) Employee’s base salary for 2009, or (B) Employee’s highest base salary during the three (3) then most recent calendar years (including the year of termination), regardless of whether such salary reduction occurs in one year or over the course of years.

 

  (c) Decision by Employer to Terminate Without Cause. Employer’s decision to terminate Employee’s employment Without Cause shall be made by the Board of Trustees.

 

 

(d)

Severance Payment Upon Termination Without Cause. In the event of Termination Without Cause, Employee will receive as severance pay an amount in cash equal to one (1) year’s salary which amount shall be paid as soon as possible and in any event, within two and one-half (2 1/2) months following the end of the year in which the Termination


 

Date occurs. For the purpose of calculating amounts payable pursuant to this Section 1(d), “salary” shall be an amount equal to (i) the greater of (A) Employee’s highest annual base salary paid during the previous three (3) years or (B) Employee’s annual base salary in the year of termination, plus (ii) the greatest annual aggregate amount of any annual bonus paid to Employee in respect of any of the three (3) fiscal years immediately preceding such termination. For purposes of the preceding sentence: (i) the term “salary” shall not include any cash or equity-based incentive award intended to be a long-term incentive award, including awards made pursuant to Employer’s Amended and Restated 2003 Long-Term Incentive Award Program; (ii) an annual bonus paid in the form of stock will be considered to have been paid in respect of a particular year if (A) in the case of a bonus paid under Employer’s annual Incentive Bonus Plan in effect for the applicable year (as the same may be amended from time or time, or any successor plan, the “Bonus Plan”), the stock bonus was awarded in respect of that year, even if it did not vest in that year, or (B) in the case of any other stock bonus, the shares vested in that year (other than as a result of the Termination Without Cause); (iii) a stock bonus will be valued (A) in the case of a bonus paid under the Bonus Plan, at a figure equal to the number of shares awarded, multiplied by the per-share value (closing price) on the date on which the bonus was approved by the Compensation Committee of Employer’s Board of Trustees, and (B) in the case of any other stock bonus, at a figure equal to the number of shares that vested, multiplied by the per-share value (closing price) on the date on which they vested; and (iv) notwithstanding the valuation provisions in clause (iii) above, if Employee elected to receive all or any portion of an annual bonus in the form of stock rather than cash, the maximum amount to be included as bonus in the computation of “salary” for that year shall be the amount of cash bonus otherwise payable without taking into account any additional stock granted in consideration for delayed vesting. Payment also will be made for vacation time that has accrued, but is unused as of the date of termination, with payment to be made within 60 days after the Employee’s Termination Date.

 

  (e) Benefits. In the event of Termination Without Cause, Employee shall receive “Full Benefits” for nine (9) months. Employer shall have satisfied its obligation to provide Full Benefits to Employee if it (i) pays premiums due in connection with COBRA continuation coverage to continue Employee’s medical and dental insurance coverage at not less than the levels of coverage immediately prior to termination of Employee’s employment; (ii) maintains at not less than Employee’s highest levels of coverage prior to Termination Without Cause individual life insurance policies and accidental death and dismemberment policies for the benefit of Employee and pays the annual premiums associated therewith; (iii) to the extent that Employer maintained a long-term disability policy that provided coverage to Employee in excess of the coverage provided under Employer’s group long-term disability policy, maintains at not less than Employee’s highest levels of coverage prior to Termination Without Cause an individual long-term disability policy for the benefit of Employee and pays the annual premiums associated therewith, subject to the limitations of the policy; and (iv) pays the annual premiums associated with Employee’s continued participation, at not less than Employee’s highest levels of coverage prior to Termination Without Cause, under Employer’s group long-term disability policy for a period of one (1) year following Termination Without Cause, subject to the limitations of the policy. Notwithstanding the foregoing, Employee shall be required to pay the premiums and any other costs of such Full Benefits in the same dollar amount that Employee was required to pay for such costs immediately prior to Termination Without Cause.

 

  (f)

Stock Options. Notwithstanding any agreement to the contrary, in the event of any Termination Without Cause, the vesting of options to purchase shares of Employer’s common stock granted to Employee and outstanding as of the date of Employee’s termination and scheduled to vest during the twelve (12) months thereafter shall be accelerated such that all such options will be vested as of the date of Employee’s termination of employment with Employer. The terms of the stock option agreements


 

shall determine the period during which any vested options may be exercisable.

 

  (g) Outplacement Services. In the event of Termination Without Cause, Employer shall make available at Employer’s expense to Employee at Employee’s option the services of an employment search/outplacement agency selected by Employer for a period not to exceed six (6) months from the date of Employee’s termination, subject to any limitations and restrictions that are required to exempt such outplacement services from Code Section 409A.

 

  (h) Provision of Telephone/Secretary. In the event of Termination Without Cause, Employer shall provide Employee for a period not to exceed six (6) months from Employee’s date of termination with a telephone number assigned to Employee at Employer’s offices, telephone mail and a secretary to answer the telephone. Such benefits shall not include an office or physical access to Employer’s offices and will cease upon commencement by Employee of employment with another employer.

 

  (i) Notice. If Employee terminates his or her employment pursuant to Section 1(b) hereof and (i) Employee is not an executive officer of Employer, Employee shall give sixty (60) days’ written notice to Employer of such termination, or (ii) if Employee is an executive officer of Employer, Employee shall give ninety (90) days’ written notice to Employer of such termination.

 

  (j) Notwithstanding the foregoing provisions of this Severance Agreement, it shall not be considered a Termination Without Cause in the event that the Employee voluntarily becomes an employee of an affiliate of the Employer in connection with a Spin-off of that affiliate if the Employer has assigned this Severance Agreement to the affiliate as contemplated in Section 14 and the affiliate has assumed the obligations hereunder.

 

  (k) Certain Definitions. For purposes of this Severance Agreement, in addition to the capitalized terms defined elsewhere, the following capitalized terms have the meanings indicated unless the context clearly requires otherwise:

 

  (i) “Separation from Service” means the termination of services provided by Employee to the Employer, whether voluntarily or involuntarily, as determined by the Board in accordance with Treasury Regulation Section 1.409A-1(h), as amended from time to time; and

 

  (ii) “Termination Date” means the date upon which the Employee incurs a Separation from Service from the Employer.

Notwithstanding anything in this Severance Agreement to the contrary (including, without limitation, Section 1(f) above), in the event there is a Termination Without Cause of Employee’s employment with Employer, the terms and conditions set forth in that certain Combined Incentive and Non-Qualified Stock Option Agreement of even date herewith between Employee and Employer and that certain Restricted Share Award Agreement (Award under the Federal Realty Investment Trust Amended and Restated 2003 Long Term Incentive Award Program) of even date herewith between Employee and Employer shall control with respect to the vesting of the options and shares granted therein. The provisions of this paragraph specifically supersede and govern over the provisions set forth in Section 1(f) above.

2. Voluntary Resignation. If Employee is not an executive officer of Employer, Employee shall give sixty (60) days’ written notice to Employer of Employee’s resignation from employment in all capacities with Employer. If Employee is an executive officer of Employer, Employee shall give ninety (90) days’ written notice to Employer of Employee’s resignation from employment in all capacities with Employer.

3. Severance Benefits Upon Termination With Cause. Employee shall be deemed to have been terminated with Cause in the event that the employment of Employee is terminated for any of the following reasons:


  (a) failure (other than failure due to disability) to substantially perform his or her duties with Employer or an affiliate thereof; which failure remains uncured after written notice thereof and the expiration of a reasonable period of time thereafter in which Employee is diligently pursuing cure (“Failure to Perform”);

 

  (b) willful conduct which is demonstrably and materially injurious to Employer or an affiliate thereof, monetarily or otherwise;

 

  (c) breach of fiduciary duty involving personal profit; or

 

  (d) willful violation in the course of performing his or her duties for Employer of any law, rule or regulation (other than traffic violations or misdemeanor offenses). No act or failure to act shall be considered willful unless done or omitted to be done in bad faith and without reasonable belief that the action or omission was in the best interest of Employer.

 

  (e) Decision by Employer to Terminate With Cause. The decision to terminate the employment of Employee with Cause shall be made by the Board of Trustees.

 

  (f) Severance Payment Upon Termination with Cause. In the event of termination for Failure to Perform pursuant to Section 3(a), or termination for cause pursuant to Section 3(b), (c) or (d) above, the terms of the stock option agreements between Employer and Employee thereunder will determine the terms of the vesting of options and the exercisability of vested options.

 

 

(i)

For Cause Termination for Failure to Perform. In the event that Employee’s employment is terminated with Cause pursuant to Section 3(a) above, Employee shall receive as severance pay an amount in cash equal to one (1) month’s salary for every year of service to Employer in excess of five (5) years of service; such severance payment shall not exceed six (6) months’ pay which amount shall be paid as soon as possible and in any event within two and one-half (2 1/2) months following the end of the year in which the Termination Date occurs. The number of months for which such a payment is due shall determine the length of the for cause term (“For Cause Term”). For the purposes of this Section 3(f)(i) only, “salary” shall mean Employee’s then current annual base salary and shall not include any bonus or other compensation. Payment shall also be made for accrued, but unused, vacation time. Employee shall also receive Full Benefits (as defined above) for the For Cause Term. In the event that, following Employee’s termination for Failure to Perform, Employee becomes employed by or affiliated with, as a partner, consultant, contractor or otherwise, any entity which is substantially engaged in the business of property investment or management (“Competitor”), all payments specified in this Section 3(f)(i) shall cease upon the date Employee commences such employment or affiliation; provided, however, Employee shall continue to receive medical and dental care benefits from Employer until (i) Employee is eligible to receive medical and dental care benefits from the Competitor, or (ii) the date of expiration of Employee’s For Cause Term, whichever comes first.

 

  (ii) Other Cause Termination. In the event that Employee’s employment is terminated with Cause pursuant to Section 3(b), (c) or (d), Employee shall receive all base salary due and payable as of the date of Employee’s termination of employment. No payment shall be made for bonus or other compensation. Payment also will be made for accrued, but unused vacation time.

4. Severance Benefits Upon Termination Upon Disability. Employer may terminate Employee upon thirty (30) days’ prior written notice if (i) Employee’s Disability has disabled Employee from rendering service to Employer for at least a six (6) month consecutive period during the term of Employee’s employment, (ii)


Employee’s “Disability” is within the meaning of such defined term in Employer’s group long-term disability policy, and (iii) Employee is covered under such policy. In the event of Employee’s Termination Upon Disability, Employee shall be entitled to receive as severance pay each month for the year immediately following the date of termination an amount in cash equal to the difference, if any, between (i) the sum of (y) the amount of payments Employee receives or will receive during that month pursuant to the disability insurance policies maintained by Employer for Employee’s benefit and (z) the adjustment described in the next sentence and (ii) Employee’s base monthly salary on the date of termination due to Disability. The adjustment referred to in clause (z) of the preceding sentence is the amount by which any tax-exempt payments referred to in clause (y) would need to be increased if such payments were subject to tax in order to make the after-tax proceeds of such payments equal to the actual amount of such tax-exempt payments.

 

  (a) Benefits. Employee shall receive Full Benefits (as defined above) for one (1) year following termination due to Disability.

 

  (b) Stock Options. In the event that Employee’s employment is terminated due to Disability, the terms of the stock option agreements between Employer and Employee shall determine the vesting of any options held by Employee as of the date of termination due to Disability and the exercise period for any vested option.

5. Severance Benefits Upon Termination Upon Death. If Employee dies, Employee’s estate shall be entitled to receive an amount in cash equal to Employee’s then-current base salary through the last day of the month in which Employee’s death occurs plus any bonus previously awarded but unpaid and any accrued vacation pay through the last day of the month in which Employee’s death occurs. The terms of the stock option agreements between Employer and Employee shall determine the vesting of any options held by Employee as of the date of his or her death and the exercise period for any vested option.

6. Confidentiality – Employer’s Obligations. Unless Employee and Employer mutually agree on appropriate language for such purposes, in the event that Employee’s employment is Terminated Without Cause pursuant to Section 1 above, With Cause pursuant to Section 3(a) above, or Employee voluntarily resigns, Employer, except to the extent required by law, will not make or publish, without the express prior written consent of Employee, any written or oral statement concerning Employee’s work related performance or the reasons or basis for the severing of Employee’s employment relationship with Employer; provided, however, that the foregoing restriction is not applicable to information which was or became generally available to the public other than as a result of a disclosure by Employer.

7. Confidentiality – Employee’s Obligations. Employee acknowledges and reaffirms that Employee will comply with the terms of the confidentiality letter executed by Employee upon commencement of Employee’s employment with Employer.

8. Payments. In the event of Employee’s voluntary resignation, severance payments made pursuant to this Severance Agreement shall be made pro rata on a monthly basis. All other severance payments payable to Employee pursuant to the terms of this Severance Agreement may be made either as a lump sum payment or pro rata on a monthly basis, at Employee’s option.

9. Tax; Withholding; Code Section 409A. Notwithstanding anything herein to the contrary, the Employee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with this Severance Agreement (including any taxes arising under Section 409A of the Code). Employer may withhold from any benefits payable under this Severance Agreement, and pay over to the appropriate authority, all federal, state, county, city or other taxes (other than any excise tax imposed under Section 4999 of the Code or any similar tax to which the indemnity provisions of Section 6(e) of this Severance Agreement shall apply) as shall be required pursuant to any law or governmental regulation or ruling.

 

  (a)

This Severance Agreement is intended to comply with (or be exempt from) Code Section 409A, and the Employer shall have complete discretion to interpret and construe this Severance Agreement and any associated documents in any manner that establishes an exemption from (or otherwise conforms them to) the requirements of Code Section 409A. If, for any reason including imprecision in drafting, the Severance


 

Agreement does not accurately reflect its intended establishment of an exemption from (or compliance with) Code Section 409A, as demonstrated by consistent interpretations or other evidence of intent, the provision shall be considered ambiguous and shall be interpreted by the Employer in a fashion consistent herewith, as determined in the sole and absolute discretion of the Employer. Notwithstanding anything to the contrary contained herein, the Employer reserves the right to unilaterally amend this Severance Agreement without the consent of Employee in order to accurately reflect its correct interpretation and operation to maintain an exemption from or compliance with Code Section 409A.

 

  (b) Neither the Employer, nor their affiliates, nor any of their directors, agents, or employees shall have any obligation to indemnify or otherwise hold the Employee harmless from any or all of such taxes. Notwithstanding anything herein to the contrary, if the Employer determines that any amounts that become due under this Severance Agreement as a result of Employee’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Section 409A, payment of such amounts shall not commence until the Employee incurs a Separation from Service. If, at the time of Employee’s Separation from Service, Employee is a “specified employee” (under Code Section 409A), any amount that the Employer determines constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Employee on account of the Employee’s Separation from Service will not be paid until after the earlier of: (i) the expiration of the six (6) month period measured from the date of the Employee’s Separation from Service with the Employer; or (ii) the date of the Employee’s death (the “409A Suspension Period”). Within fourteen (14) calendar days after the end of the 409A Suspension Period, the Employee shall be paid a lump sum payment in cash equal to any payments delayed because of the preceding sentence, without interest. Thereafter, the Employee shall receive any remaining benefits as if there had not been an earlier delay. For the purposes of this Severance Agreement, each payment that is part of a series of installment payments shall be treated as a right to a series of separate payments within the meaning of Code Section 409A.

 

10. Arbitration.

 

  (a) Any controversy, claim or dispute arising out of or relating to this Severance Agreement or the breach thereof shall be settled by arbitration in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties irrevocably consent to the jurisdiction of the federal and state courts located in Maryland for this purpose. Each such arbitration proceeding shall be located in Maryland.

 

  (b) The arbitrator(s) may, in the course of the proceedings, order any provisional remedy or conservatory measure (including, without limitation, attachment, preliminary injunction or the deposit of specified security) that the arbitrator(s) consider to be necessary, just and equitable. The failure of a party to comply with such an interim order may, after due notice and opportunity to cure with such noncompliance, be treated by the arbitrator(s) as a default, and some or all of the claims or defenses of the defaulting party may be stricken and partial or final award entered against such party, or the arbitrator(s) may impose such lesser sanctions as the arbitrator(s) may deem appropriate. A request for interim or provisional relief by a party to a court shall not be deemed incompatible with the agreement to arbitrate or a waiver of that agreement.

 

  (c)

The parties acknowledge that any remedy at law for breach of this Severance Agreement may be inadequate, and that, in the event of a breach by Employee of Sections 7 or 13, any remedy at law would be inadequate in that such breach would cause irreparable competitive harm to Employer. Consequently, in addition to any other relief that may be available, the arbitrator(s) also may order permanent injunctive relief, including, without


 

limitation, specific performance, without the necessity of the prevailing party proving actual damages and without regard to the adequacy of any remedy at law.

 

  (d) In the event that Employee is the prevailing party in such arbitration, then Employee shall be entitled to reimbursement by Employer for all reasonable legal and other professional fees and expenses incurred by Employee in such arbitration or in enforcing the award, including reasonable attorney’s fees.

 

  (e) The parties agree that the results of any such arbitration proceeding shall be conclusive and binding upon them.

11. Continued Employment. This Severance Agreement shall not confer upon the Employee any right with respect to continuance of employment by Employer.

12. Mitigation. Employee shall not be required to mitigate the amount of any payment, benefit or other Employer obligation provided for in this Severance Agreement by seeking other employment or otherwise and no such payment shall be offset or reduced by the amount of any compensation or benefits provided to Employee in any subsequent employment.

13. Restrictions on Competition; Solicitation; Hiring.

 

  (a) During the term of his or her employment by or with Employer, and for one (1) year from the date of the termination of Employee’s employment with Employer (the “Post Termination Period”), Employee shall not, without the prior written consent of Employer, for himself or herself or on behalf of or in conjunction with any other person, persons, company, firm, partnership, corporation, business, group or other entity (each, a “Person”), work on or participate in the acquisition, leasing, financing, pre-development or development of any project or property which was considered and actively pursued by Employer or its affiliates for acquisition, leasing, financing, pre-development or development within one year prior to the date of termination of Employee’s employment.

 

  (b) During the term of his or her employment by or with Employer, and thereafter during the Post Termination Period, Employee shall not, for any reason whatsoever, directly or indirectly, for himself or herself or on behalf of or in conjunction with any other Person:

 

  (i) so that Employer may maintain an uninterrupted workforce, solicit and/or hire any Person who is at the time of termination of employment, or has been within six (6) months prior to the time of termination of Employee’s employment, an employee of Employer or its affiliates, for the purpose or with the intent of enticing such employee away from or out of the employ of Employer or its affiliates, provided that Employee shall be permitted to call upon and hire any member of the Employee’s immediate family;

 

  (ii) in order to protect the confidential information and proprietary rights of Employer, solicit, induce or attempt to induce any Person who or that is, at the time of termination of Employee’s employment, or has been within six (6) months prior to the time of termination of Employee’s employment, an actual customer, client, business partner, property owner, developer or tenant or a prospective customer, client, business partner, property owner, developer or tenant (i.e. , a customer, client, business partner, property owner, developer or tenant who is party to a written proposal or letter of intent with Employer, in each case written less than six (6) months prior to termination of Employee’s employment) of Employer, for the purpose or with the intent of (A) inducing or attempting to induce such Person to cease doing business with Employer or its affiliates, or (B) in any way interfering with the relationship between such Person and Employer or its affiliates; or


  (iii) solicit, induce or attempt to induce any Person who is or that is, at the time of termination of Employee’s employment, or has been within six (6) months prior to the time of termination of Employee’s employment, a tenant, supplier, licensee or consultant of, or provider of goods or services to Employer or its affiliates, for the purpose or with the intent of (A) inducing or attempting to induce such Person to cease doing business with Employer or its affiliates or (B) in any way interfering with the relationship between such Person and Employer or its affiliates.

 

  (c) Because of the difficulty of measuring economic losses to Employer as a result of a breach of the foregoing covenants, and because of the immediate and irreparable damage that could be caused to Employer for which it would have no other adequate remedy, Employee agrees that the foregoing covenants, in addition to and not in limitation of any other rights, remedies or damages available to Employer at law, in equity or under this Severance Agreement, may be enforced by Employer in the event of the breach or threatened breach by Employee, by injunctions and/or restraining orders. If Employer is involved in court or other legal proceedings to enforce the covenants contained in this Section 13, then in the event Employer prevails in such proceedings, Employee shall be liable for the payment of reasonable attorneys’ fees, costs and ancillary expenses incurred by Employer in enforcing its rights hereunder.

 

  (d) It is agreed by the parties that the covenants contained in this Section 13 impose a fair and reasonable restraint on Employee in light of the activities and business of Employer on the date of the execution of this Severance Agreement and the current plans of Employer; but it is also the intent of Employer and Employee that such covenants be construed and enforced in accordance with the changing activities, business and locations of Employer and its affiliates throughout the term of these covenants.

 

  (e) It is further agreed by the parties hereto that, in the event that Employee shall cease to be employed hereunder, and enters into a business or pursues other activities that, at such time, are not in competition with Employer or its affiliates or with any business or activity which Employer or its affiliates contemplated pursuing, as of the date of termination of Employee’s employment, within twelve (12) months from such date of termination, or similar activities or business in locations the operation of which, under such circumstances, does not violate this Section 13 or any of Employee’s obligations under this Section 13, Employee shall not be chargeable with a violation of this Section 13 if Employer or its affiliates subsequently enter the same (or a similar) competitive business, course of activities or location, as applicable.

 

  (f) The covenants in this Section 13 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court deems reasonable, and the Severance Agreement shall thereby be reformed to reflect the same.

 

  (g) All of the covenants in this Section 13 shall be construed as an agreement independent of any other provision in this Severance Agreement, and the existence of any claim or cause of action of Employee against Employer whether predicated on this Severance Agreement or otherwise shall not constitute a defense to the enforcement by Employer of such covenants. It is specifically agreed that the Post Termination Period, during which the agreements and covenants of Employee made in this Section 13 shall be effective, shall be computed by excluding from such computation any time during which Employee is in violation of any provision of this Section 13.

 

  (h)

Notwithstanding any of the foregoing, if any applicable law, judicial ruling or order shall reduce the time period during which Employee shall be prohibited from engaging


 

in any competitive activity described in Section 13 hereof, the period of time for which Employee shall be prohibited pursuant to Section 13 hereof shall be the maximum time permitted by law.

14. No Assignment. Neither this Severance Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by either Employer or Employee without the prior written consent of the other party; provided, however, that this provision shall not preclude Employee from designating one or more beneficiaries to receive any amount that may be payable after Employee’s death and shall not preclude Employee’s executor or administrator from assigning any right hereunder to the person or persons entitled thereto; provided, further, that in connection with a voluntary transfer, the Employer may assign this Severance Agreement (and its rights, remedies, obligations, and liabilities) to an affiliate of the Employer without the consent of the Employee in connection with a spin off of such affiliate (whether by a transfer of shares of beneficial ownership, assets, or other substantially similar transaction) to all or substantially all of the shareholders of the Employer (a “Spin-off”) and, upon such assignment, the affiliate shall be deemed the Employer for all purposes of this Severance Agreement. This Severance Agreement shall not be terminated either by the voluntary or involuntary dissolution or the winding up of the affairs of Employer, or by any merger or consolidation wherein Employer is not the surviving entity, or by any transfer of all or substantially all of Employer’s assets on a consolidated basis. In the event of any such merger, consolidation or transfer of assets, the provisions of this Severance Agreement shall be binding upon and shall inure to the benefit of the surviving entity or to the entity to which such assets shall be transferred.

15. Amendment. This Severance Agreement may be terminated, amended, modified or supplemented only by a written instrument executed by Employee and Employer.

16. Waiver. Either party hereto may by written notice to the other: (i) extend the time for performance of any of the obligations or other actions of the other party under this Severance Agreement; (ii) waive compliance with any of the conditions or covenants of the other party contained in this Severance Agreement; (iii) waive or modify performance of any of the obligations of the other party under this Severance Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Severance Agreement shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto of a breach of any provision of this Severance Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach. No failure by either party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights to exercise the same any subsequent time or times hereunder.

17. Severability. In case any one or more of the provisions of this Severance Agreement shall, for any reason, be held or found by determination of the arbitrator(s) pursuant to an arbitration held in accordance with Section 11 above to be invalid, illegal or unenforceable in any respect (i) such invalidity, illegality or unenforceability shall not affect any other provisions of this Severance Agreement, (ii) this Severance Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, and (iii) if the effect of a holding or finding that any such provision is either invalid, illegal or unenforceable is to modify to Employee’s detriment, reduce or eliminate any compensation, reimbursement, payment, allowance or other benefit to Employee intended by Employer and Employee in entering into this Severance Agreement, Employer shall promptly negotiate and enter into an agreement with Employee containing alternative provisions (reasonably acceptable to Employee), that will restore to Employee (to the extent legally permissible) substantially the same economic, substantive and income tax benefits Employee would have enjoyed had any such provision of this Severance Agreement been upheld as legal, valid and enforceable. Failure to insist upon strict compliance with any provision of this Severance Agreement shall not be deemed a waiver of such provision or of any other provision of this Severance Agreement.

18. Governing Law. This Severance Agreement has been executed and delivered in the State of Maryland and its validity, interpretation, performance and enforcement shall be governed by the laws of said State; provided, however, that any arbitration under Section 10 hereof shall be conducted in accordance with the Federal Arbitration Act as then in force.

19. No Attachment. Except as required by law, no right to receive payments under this Severance Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or the execution, attachment, levy, or similar process or assignment by operation of law, and any


attempt, voluntary or involuntary, to effect any such action shall be null, void and of no effect.

20. Source of Payments. All payments provided under this Severance Agreement shall be paid in cash from the general funds of Employer, and no special or separate fund shall be established and no other segregation of assets shall be made to assure payment.

21. Headings. The section and other headings contained in this Severance Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Severance Agreement.

22. Notices. Any notice required or permitted to be given under this Severance Agreement shall be in writing and shall be deemed to have been given when delivered in person or when deposited in the U.S. mail, registered or certified, postage prepaid, and mailed to Employee’s addresses set forth herein and the business address of Employer, unless a party changes its address for receiving notices by giving notice in accordance with this Section, in which case, to the address specified in such notice.

23. Counterparts. This Severance Agreement may be executed in multiple counterparts with the same effect as if each of the signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument.

24. Entire Agreement. Except as may otherwise be provided herein, this Severance Agreement supersedes any and all prior written agreements existing between Employer and Employee with regard to the subject matter hereof. Notwithstanding the foregoing, nothing herein is intended to or does modify or alter in any way the rights or benefits of Employee as set forth in that certain Change in Control Agreement dated as of February 12, 2007 in the event of a termination of Employee’s employment with Employer under the circumstances described in such agreement.

IN WITNESS WHEREOF, the parties have executed and delivered this Severance Agreement to be effective as of the day and year indicated above.

 

/s/ Andrew P. Blocher
Andrew P. Blocher

Employee’s Permanent Address:

2319 Gerken Avenue

Vienna, VA 22181

 

 

FEDERAL REALTY INVESTMENT TRUST

By:   /s/ Dawn M. Becker
 

Dawn M. Becker

Executive Vice President-General Counsel

and Secretary

 

1626 East Jefferson Street

Rockville, Maryland 20852

 

Exhibit 21.1

Exhibit 21.1

FEDERAL REALTY INVESTMENT TRUST AND SUBSIDIARIES

 

NAME OF

SUBSIDIARY

 

STATE OF INCORPORATION OF

ORGANIZATION

Street Retail, Inc   Maryland

FRIT San Jose Town and

Country Village, LLC

  California
Exhibit 23.1

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We have issued our reports dated February 25, 2009, with respect to the consolidated financial statements, schedules and internal control over financial reporting included in the Annual Report of Federal Realty Investment Trust on Form 10-K for the year ended December 31, 2008. We hereby consent to the incorporation by reference of said reports in the Registration Statements of Federal Realty Investment Trust on Forms S-3 (File No. 333-100819 effective 11/30/2005, File No. 333-84210 effective 04/26/2002, File No. 333-97945 effective 08/12/2002, File No. 333-63619 effective 11/18/2002, File No. 033-63687 effective 03/06/1998, File No. 033-63955 effective 11/03/1995, File No. 033-15264 effective 08/04/1987, File No. 333-142231 effective 01/10/2008, File No. 333-120498 effective 11/15/2004, File No. 333-124195 effective 04/20/2005, File No. 333-125467 effective 06/03/2005 and File No. 333-135159 effective 12/21/2007) and on Forms S-8 (File No. 333-60364 effective 05/07/2001, File No. 333-63617 effective 09/17/1998, File No. 333-147080 effective 11/01/2007 and File No. 333-147081 effective 11/01/2007).

/s/ GRANT THORNTON LLP

McLean, Virginia

February 25, 2009

Exhibit 31.1

Exhibit 31.1

CERTIFICATION

I, Donald C. Wood, certify that:

 

  1) I have reviewed this annual report on Form 10-K of Federal Realty Investment 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 and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-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 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 trustees (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.

 

    

/s/    Donald C. Wood        

February 26, 2009

 

NAME:

  

Donald C. Wood

 

TITLE:

  

President, Chief Executive Officer and Trustee

    

(Principal Executive Officer)

Exhibit 31.2

Exhibit 31.2

CERTIFICATION

I, Andrew P. Blocher, certify that:

 

  1) I have reviewed this annual report on Form 10-K of Federal Realty Investment 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 and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-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 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 trustees (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.

 

    

/s/    Andrew P. Blocher        

February 26, 2009

  NAME:   

Andrew P. Blocher

  TITLE:   

Senior Vice President and Chief Financial Officer

    

(Principal Financial and Accounting Officer)

Exhibit 32.1

Exhibit 32.1

CERTIFICATION

PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

The undersigned, Donald C. Wood, the President and Chief Executive Officer of Federal Realty Investment Trust (the “Company”), has executed this certification in connection with the filing with the Securities and Exchange Commission of the Company’s Annual Report on Form 10-K for the period ended December 31, 2008 (the “Report”). The undersigned hereby certifies that:

 

  (1) the Report fully complies with the requirements of Section 13(a) or 15(d) 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/    Donald C. Wood        

February 26, 2009

 

NAME:

   Donald C. Wood
 

TITLE:

  

President, Chief Executive Officer and Trustee

    

(Principal Executive Officer)

Exhibit 32.2

Exhibit 32.2

CERTIFICATION

PURSUANT TO 18 U.S.C. SECTION 1350 AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

The undersigned, Andrew P. Blocher, the Senior Vice President and Chief Financial Officer of Federal Realty Investment Trust (the “Company”), has executed this certification in connection with the filing with the Securities and Exchange Commission of the Company’s Annual Report on Form 10-K for the period ended December 31, 2008 (the “Report”). The undersigned hereby certifies that:

 

  (1) the Report fully complies with the requirements of Section 13(a) or 15(d) 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/    Andrew P. Blocher        

February 26, 2009

 

NAME:

  

Andrew P. Blocher

 

TITLE:

  

Senior Vice President and Chief Financial Officer

    

(Principal Financial and Accounting Officer)