Item 1. Business.
General Description of Business
We are a limited partnership formed in Texas on July 30, 2002. Our general partners are Behringer Harvard Advisors II LP (“Behringer Advisors II”) and Robert M. Behringer (collectively the “General Partners”). We were funded through capital contributions from our General Partners and initial limited partner on September 20, 2002 (date of inception) and offered our limited partnership units pursuant to the public offering which commenced on February 19, 2003 and terminated on February 19, 2005 (the “Offering”). The Offering was for up to 10,000,000 limited partnership units offered at a price of $10 per unit pursuant to a Registration Statement on Form S-11 (the “Registration Statement”) filed under the Securities Act of 1933. The Registration Statement also covered up to 1,000,000 limited partnership units available pursuant to our distribution reinvestment and automatic purchase plan (the “DRIP”). On January 21, 2005, we amended our Registration Statement with Post-Effective Amendment No. 7 to increase the units of limited partnership interest being offered to 10,950,000 and decrease the units to be issued under the DRIP to the 50,000 units that had already been issued, thus terminating our DRIP. The Offering was a best efforts continuous offering and we admitted new investors until the termination of the Offering.
The number of units sold and the gross offering proceeds realized pursuant to the Offering were 10,997,188 limited partnership units for $109.2 million. As of December 31, 2007, we had 10,803,839 limited partnership units outstanding. Our limited partnership units are not currently listed on a national exchange, and we do not expect any public market for the units to develop.
We used proceeds from the Offering, after deducting offering expenses, to acquire interests in twelve properties, including seven office building properties, one shopping/service center, a hotel redevelopment with an adjoining condominium development, two development properties and undeveloped land. One of the office building properties was sold in 2006. We are not currently seeking to purchase any additional properties; however, in limited circumstances, we may purchase properties as a result of selling one or more of the properties we currently hold and reinvesting the sales proceeds in properties that fall within our investment objectives and investment criteria. As of December 31, 2007, we wholly own seven properties and we own interests in four properties through separate limited partnerships or joint venture arrangements.
Our partnership agreement (the “Partnership Agreement”) provides that we will continue in existence until the earlier of December 31, 2017 or termination of the Partnership, pursuant to the liquidation and termination provisions of the Partnership Agreement.
Until December 31, 2008, the value of our units will be deemed to be $10, as adjusted for any special distributions, and no valuation or appraisal of our units will be performed. As of December 31, 2007, we estimate the per unit valuation to be $9.44, due to a special distribution made in 2005 of $0.10 per unit and a special distribution of $0.46 per unit made in 2006 of a portion of the net proceeds from the sale of properties. Beginning with fiscal year 2009, we will prepare annual valuations of our units based upon the estimated amount a limited partner would receive if all Partnership assets were sold for their estimated values as of the close of our fiscal year and all proceeds from such sales, without reduction for selling expenses, together with any funds held by the Partnership, were distributed to the limited partners upon liquidation. Such estimated property values will be based upon annual valuations performed by the General Partners, and no independent property appraisals will be obtained. While the General Partners are required under the Partnership Agreement to obtain the opinion of an independent third party stating that their estimates of value are reasonable, the unit valuations provided by the General Partners may not satisfy the technical requirements imposed on plan fiduciaries under the Employee Retirement Income Security Act (“ERISA”). Similarly, the unit valuations provided by the General Partners may be subject to challenge by the Internal Revenue Service if used for any tax (income, estate and gift or otherwise) valuation purpose as an indicator of the fair value of the units.
Our office is located at 15601 Dallas Parkway, Suite 600, Addison, Texas 75001, and our toll-free telephone number is (866) 655-1620. The name Behringer Harvard is the property of Behringer Harvard Holdings, LLC (“Behringer Holdings”) and is used by permission.
Disposition Policies
As noted previously, we have now completed the Offering. We anticipate that, prior to our termination and dissolution, all of our properties will be sold. We intend to hold the various real properties in which we have invested until such time as sale or other disposition appears to be advantageous to achieve our investment objectives or until it appears that such objectives will not be met. In deciding whether to sell properties, we will consider factors such as potential capital appreciation, cash flow and federal income tax considerations, including possible adverse federal income tax consequences to our limited partners. We are currently preparing and assessing properties for potential sale, although we do not have a definite timetable. Our General Partners may exercise their discretion as to whether and when to sell a property, and we will have no obligation to sell properties at any particular time, except upon our termination on December 31, 2017, or earlier if our General Partners determine to liquidate us, or after February 19, 2010, if investors holding a majority of the units vote to liquidate us in response to a formal proxy to liquidate. Instead of causing us to liquidate, our General Partners, in their sole discretion, may determine to offer to limited partners the opportunity to convert their units into interests in another public real estate program sponsored by our General Partners or their affiliates, through a plan of merger, plan of exchange or plan of conversion, provided that the transaction is approved by holders of such percentage of units as determined by our General Partners, but not less than a majority and excluding those held by our General Partners and their affiliates. If such an opportunity is provided to our limited partners, it may involve the distribution to limited partners of freely traded securities that are listed on a securities exchange.
Cash flow from operations will not be invested in the acquisition of real estate properties. However, in the discretion of our General Partners, cash flow may be held as working capital reserves or used to make capital improvements to existing properties. In addition, net sale proceeds generally will not be reinvested but will be distributed to the partners, unless our General Partners determine that it is in our best interest to reinvest the proceeds of any particular sale in other real estate investments in order to meet our investment objectives. We will not reinvest the proceeds from any sale in additional properties unless our General Partners determine it is likely that we would be able to hold such additional properties for a sufficient period of time prior to the termination of the fund in order to satisfy our investment objectives with respect to that investment. Thus, we are intended to be self-liquidating in nature. In addition, our Partnership Agreement prohibits us from reinvesting proceeds from the sale or refinancing of our properties at any time after February 19, 2010. Our General Partners may also determine not to distribute net sale proceeds if such proceeds are, in the discretion of our General Partners:
· used to purchase land underlying any of our properties;
· used to buy out the interest of any co-tenant or joint venture partner in a property that is jointly owned;
· used to enter into a joint venture with respect to a property;
· held as working capital reserves; or
· used to make capital improvements to existing properties.
Notwithstanding the above, reinvestment of proceeds from the sale of properties will not occur unless sufficient cash will be distributed to pay any federal or state income tax liability created by the sale of the property, assuming limited partners will be subject to a 30% combined federal and state tax rate.
We will not pay, directly or indirectly, any commission or fee, except as specifically permitted under Article XII of our Partnership Agreement, to our General Partners or their affiliates in connection with the reinvestment or distribution of proceeds from the sale, exchange or financing of our properties.
Although not required to do so, we will generally seek to sell our real estate properties for cash. We may, however, accept terms of payment from a buyer that include purchase money obligations secured by mortgages as partial payment, depending upon then-prevailing economic conditions customary in the area in which the property being sold is located, credit of the buyer and available financing alternatives. Some properties we sell may be sold on the installment basis under which only a portion of the sale price will be received in the year of sale, with subsequent payments spread over a number of years. In such event, our full distribution of the net proceeds of any sale may be delayed until the notes are paid, sold or financed.
Investment Objectives and Criteria
We are not currently actively seeking to purchase additional properties. However, as mentioned above, in limited circumstances, we may purchase properties as a result of selling one or more of the properties we currently hold and reinvesting the sales proceeds in properties that fall within our investment objectives and investment criteria. If we purchase such properties, our intention is to invest in income-producing real estate properties, including properties that have been constructed and have operating histories, are newly constructed or are under development or construction. Our investment objectives are:
· to preserve, protect and return investor’s capital contributions;
· to maximize cash distributions paid to investors;
· to realize growth in the value of our properties upon the ultimate sale of such properties; and
· prior to February 19, 2010, either (1) to make an orderly disposition of the properties and distribute the cash to the investors or (2) upon the approval of the majority of the limited partners, for all the investors to exchange their units for interests in another Behringer Harvard program.
We cannot assure investors that we will attain these objectives or that our capital will not decrease. We may not change our investment objectives except with the approval of limited partners holding a majority of our units (without regard to units owned or controlled by our General Partners). In the event that the holders of a majority of our units approve a merger or consolidation with another partnership or corporation, in lieu of our liquidation, limited partners who dissent from any such merger or consolidation will be entitled to receive cash for their units based on the appraised value of our net assets.
Our General Partners make all decisions relating to the purchase or sale of our properties.
Acquisition and Investment Policies
To the extent we acquire any additional properties, we will primarily invest in quality commercial properties, such as office, retail, apartment, industrial and hotel properties that have been identified as being opportunistic investments with significant possibilities for near-term capital appreciation. These properties will be identified as such because of their property specific characteristics or their market characteristics. For instance, properties that may benefit from unique repositioning opportunities or that are located in markets with higher volatility and high growth potential (such as the southwestern United States), may present appropriate investments for us. We intend to hold the various real properties in which we have invested until such time as sale or other disposition appears to be advantageous to achieve our investment objectives or until it appears that such objectives will not be met. Economic or market conditions may influence us to hold our investments for different periods of time. Our General Partners believe that a portfolio consisting of a preponderance of these types of properties enhances our liquidity opportunities for investors by making the sale of individual properties, multiple properties or our investment portfolio as a whole attractive to institutional investors.
We are opportunistic in our acquisitions of properties. Properties may have been acquired in markets that are depressed or overbuilt with the anticipation that these properties will increase in value as the markets recover. Properties also may have been acquired and repositioned by seeking to improve the property and tenant quality and thereby increase lease revenues. We are permitted to invest in commercial properties, including office buildings, shopping centers, business and industrial parks, manufacturing facilities, apartment buildings, warehouses and distribution facilities, if our General Partners determine that it would be advantageous to do so. Investments also may include commercial properties that are not preleased to such tenants or in other types of commercial properties, such as hotels or motels. We may purchase properties that have been constructed and have operating histories, are newly constructed or are under development or construction. We will not, however, be actively engaged in the business of operating hotels, motels or similar properties.
We seek to invest in properties that will satisfy our objective of providing distributions of current cash flow to our limited partners. However, because a significant factor in the valuation of income-producing real properties is their potential for future appreciation in value, our General Partners believe that the majority of properties we have acquired or will acquire have the potential for both capital appreciation and distributions of current cash flow to investors. To the extent feasible, we have sought to invest in a diversified portfolio of properties in terms of type of property and industry of our tenants that will satisfy our investment objectives of maximizing net cash from operations, preserving our capital and realizing capital appreciation upon the ultimate sale of our properties.
We will not invest more than the lesser of 25% of the gross offering proceeds available for investment or 10% of our aggregate asset value in non-income producing properties. If a property is expected to produce income within two years of its acquisition, we will not consider it a non-income producing property.
Our investment in real estate has generally taken, and will continue to take, the form of holding fee title or a long-term leasehold estate, either directly or indirectly through investments in joint ventures, partnerships, co-tenancies or other co-ownership arrangements with the developers of the properties, affiliates of the General Partners or other persons. In addition, we may purchase properties and lease them back to the sellers of such properties. While we will use our best efforts to structure any such sale-leaseback transaction such that the lease will be characterized as a “true lease” so that we will be treated as the owner of the property for federal income tax purposes, we cannot assure investors that the Internal Revenue Service will not challenge such characterization. In the event that any such sale-leaseback transaction is recharacterized as a financing transaction for federal income tax purposes, deductions for depreciation and cost recovery relating to such property would be disallowed, and our income therefrom could be treated as portfolio income, rather than passive income.
We may continue to invest in properties that complement our geographic diversification, although we expect to focus on markets with higher volatility and high growth potential (such as the southwestern United States). Although we are not limited as to the geographic area where we may conduct our operations, we expect that all of our real property assets will be located in the United States.
In making investment decisions for us, our General Partners consider relevant real estate property and financial factors, including the location of the property, its suitability for any development contemplated or in progress, its income-producing capacity, the prospects for long-range appreciation, and its liquidity and income tax considerations. Our General Partners have substantial discretion with respect to the selection of our specific investments.
In making acquisitions of real property, we obtain independent appraisals. However, we rely on our own independent analysis and not on such appraisals in determining whether to invest in a particular property. It should be noted that appraisals are estimates of value and should not be relied upon as measures of true worth or realizable value. Copies of these appraisals will be available for review and duplication by investors at our office and will be retained for at least five years.
Our obligation to purchase any property will generally be conditioned upon the delivery and verification of certain documents from the seller or developer, including, where appropriate:
· plans and specifications;
· environmental reports;
· surveys;
· evidence of marketable title subject to such liens and encumbrances as are acceptable to our General Partners;
· audited financial statements covering recent operations of properties having operating histories; and
· title and liability insurance policies.
We may also enter into arrangements with the seller or developer of a property whereby the seller or developer agrees that, if during a stated period the property does not generate a specified cash flow, the seller or developer will pay in cash to us a sum necessary to reach the specified cash flow level, subject in some cases to negotiated dollar limitations.
In determining whether to purchase a particular property, we may, in accordance with customary practices, obtain an option on such property. The amount paid for an option, if any, is normally surrendered if the property is not purchased and is normally credited against the purchase price if the property is purchased.
In purchasing, leasing and developing real properties, we will be subject to risks generally incident to the ownership of real estate, including:
· changes in general economic or local conditions;
· changes in supply of or demand for similar or competing properties in an area;
· changes in interest rates and availability of permanent mortgage funds that may render the sale of a property difficult or unattractive;
· changes in tax, real estate, environmental and zoning laws;
· periods of high interest rates and tight money supply that may make the sale of properties more difficult;
· tenant turnover; and
· general overbuilding or excess supply in the market area.
We and our performance are subject to the additional risks listed in the Item 1A.
Item 1A. Risk Factors.
Risks Related to an Investment in Behringer Harvard Short-Term Fund I LP
The factors described below represent our principal risks. Other factors may exist that we do not consider to be significant based on information that is currently available or that we are not currently able to anticipate.
There is no public trading market for our units, therefore it will be difficult for limited partners to sell their units.
There is no public trading market for the units, and we do not expect one to ever develop. Our Partnership Agreement restricts our ability to participate in a public trading market or anything substantially equivalent to one by providing that any transfer that may cause us to be classified as a publicly traded partnership as defined in Section 7704 of the Internal Revenue Code shall be deemed void and shall not be recognized by us. Because classification of the Partnership
as a publicly traded partnership may significantly decrease the value of the units, our General Partners intend to use their authority to the maximum extent possible to prohibit transfers of units that could cause us to be classified as a publicly traded partnership. For these reasons, it will be difficult for our limited partners to sell their units.
Our units have limited transferability and lack liquidity.
Except for certain intra-family transfers, limited partners are limited in their ability to transfer their units. Our Partnership Agreement and certain state regulatory agencies have imposed restrictions relating to the number of units limited partners may transfer. In addition, the suitability standards imposed on prospective investors also apply to potential subsequent purchasers of our units. If limited partners are able to find a buyer for their units, they may not sell their units to such buyer unless the buyer meets the suitability standards applicable to him or her. Accordingly, it will be difficult for limited partners to sell their units promptly or at all. Limited partners may not be able to sell their units in the event of an emergency, and if they are able to sell their units, they may have to sell them at a substantial discount. It is also likely that the units would not be accepted as the primary collateral for a loan.
If we, through our General Partners, are unable to find suitable investments, then we may not be able to achieve our investment objectives or pay distributions.
Our ability to achieve our investment objectives and to pay distributions is dependent upon the performance of our General Partners in the acquisition of our investments, the selection of tenants and the determination of any financing arrangements. Generally, investors will have no opportunity to evaluate the terms of transactions or other economic or financial data concerning our investments. Investors must rely entirely on the management ability of our General Partners. We cannot be sure that our General Partners will be successful in obtaining suitable investments on financially attractive terms or that, if they make investments on our behalf, our objectives will be achieved.
We may have to make expedited decisions on whether to invest in certain properties, including prior to receipt of detailed information on the property.
In the current real estate market, our General Partners may frequently be required to make expedited decisions in order to effectively compete for the acquisition of properties and other investments. Additionally, we may be required to make substantial non-refundable deposits prior to the completion of our analysis and due diligence on property acquisitions, and the actual time period during which we will be allowed to conduct due diligence may be limited. In such cases, the information available to our General Partners at the time of making any particular investment decision, including the decision to pay any non-refundable deposit and the decision to consummate any particular acquisition, may be limited, and our General Partners may not have access to detailed information regarding any particular investment property, such as physical characteristics, environmental matters, zoning regulations or other local conditions affecting the investment property. Therefore, no assurance can be given that our General Partners will have knowledge of all circumstances that may adversely affect an investment. In addition, our General Partners expect to rely upon independent consultants in connection with their evaluation of proposed investment properties, and no assurance can be given as to the accuracy or completeness of the information provided by such independent consultants.
We have acquired a large percentage of our properties in the Southwest United States, particularly in the Dallas, Texas metropolitan area. As a result of this limited diversification of the geographic locations of our properties, our operating results will be affected by economic changes that have an adverse impact on the real estate market in that area.
Many of the properties that we have acquired using the proceeds of the Offering are located in the Southwest United States, more specifically, in the Dallas, Texas metropolitan area. Consequently, because of the lack of geographic diversity among our current and potentially future assets, our operating results and ability to pay distributions are likely to be impacted by economic changes affecting the real estate market in the Dallas, Texas area. An investment in our units will be subject to greater risk to the extent that we lack a geographically diversified portfolio of properties.
The prior performance of real estate investment programs sponsored by affiliates of our General Partners may not be an indication of our future results.
Investors should not rely upon the past performance of other real estate investment programs sponsored by Mr. Behringer, our individual general partner, or his affiliates to predict our future results. To be successful in this market, we must, among other things:
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identify and acquire investments that further our investment strategies;
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increase awareness of the Behringer Harvard name within the investment products market;
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establish and maintain our network of licensed securities brokers and other agents;
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attract, integrate, motivate and retain qualified personnel to manage our day-to-day operations;
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respond to competition both for investment properties and potential investors in us; and
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continue to build and expand our operations structure to support our business.
We cannot guarantee that we will succeed in achieving these goals, and our failure to do so could cause investors to lose all or a portion of their investment.
We may suffer from delays in locating suitable investments, which could adversely affect the return on limited partners’ investments.
Our ability to achieve our investment objectives and to make distributions to you is dependent upon the performance of our General Partners in the acquisition of our investments and the selection of tenants. Except for the investments described in this Annual Report on Form 10-K, you will have no opportunity to evaluate the terms of transactions or other economic or financial data concerning our investments. You must rely entirely on the management ability of our General Partners. We could suffer from delays in locating suitable investments, particularly as a result of our reliance on our General Partners at times when affiliates of our General Partners are simultaneously seeking to locate suitable investments for other Behringer Harvard programs, some of which may have investment objectives and employ investment strategies that are substantially similar to ours. Although affiliates of our General Partners generally seek to avoid simultaneous public offerings of funds that have a substantially similar mix of fund characteristics, including targeted investment types, investment objectives and criteria, and anticipated fund terms, there may be periods during which one or more Behringer Harvard sponsored programs are seeking to invest in similar properties. Additionally, as a publicly registered program, we are subject to the ongoing reporting requirements under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant to the Exchange Act, we may be required to file with the SEC financial statements of properties we acquire or, in certain cases, financial statements of the tenants of the acquired properties. To the extent any required financial statements are not available or cannot be obtained, we will not be able to acquire the property. As a result, we may not be able to acquire certain properties that otherwise would be a suitable investment. We could suffer delays in our property acquisitions due to these reporting requirements. Delays we encounter in the selection, acquisition and development of properties could adversely affect limited partners’ returns. In addition, where we acquire properties prior to the start of construction or during the early stages of construction, it will typically take several months to complete construction and rent available space. Therefore, limited partners could suffer delays in the distribution of cash attributable to those particular properties. In addition, if we are unable to invest in income-producing real properties in a timely manner, our ability to pay distributions to our limited partners would be adversely affected.
If we lose or are unable to obtain key personnel, our ability to implement our investment strategies could be delayed or hindered.
Our success depends to a significant degree upon the continued contributions of certain key personnel of the general partner of Behringer Advisors II, HPT, including Mr. Behringer, who would be difficult to replace. Although HPT has employment agreements with its key personnel, these agreements are terminable at will, and we cannot guarantee that such persons will remain affiliated with HPT or us. If any of HPT’s key personnel were to cease employment, our operating results could suffer. The indirect parent company of Behringer Advisors II, Behringer Holdings, has obtained key person life insurance on the life of Messrs. Behringer, Reihsen and Mattox and is in the process of obtaining key person life insurance on the lives of Messrs. Aisner, Bresky, and Jeffrey S. Schwaber. We do not intend to separately maintain key person life insurance on Mr. Behringer or any other person. We believe that our future success depends, in large part, upon HPT’s ability to hire and retain highly skilled managerial, operational and marketing personnel. Competition for such personnel is intense, and we cannot assure limited partners that HPT will be successful in attracting and retaining such skilled personnel. Further, our General Partners intend to establish strategic relationships with firms that have special expertise in certain services or as to real properties in certain geographic regions. Maintaining such relationships will be important for us to effectively compete with other investors for properties in such regions. We cannot assure limited partners that our General Partners will be successful in attracting and retaining such relationships. If we lose or are unable to obtain the services of key personnel or do not establish or maintain appropriate strategic relationships, our ability to implement our investment strategies could be delayed or hindered.
Robert M. Behringer has a dominant role in determining what is in our best interests and therefore we will not have the benefit of independent consideration of issues affecting our Partnership operations.
Mr. Behringer is one of our general partners. Our other general partner is Behringer Advisors II. Behringer Advisors II is managed by its general partner, HPT, for which Mr. Behringer serves as Chief Executive Officer and sole manager. Therefore, Mr. Behringer has a dominant role in determining what is in the best interests of us and our limited partners. Since no person other than Mr. Behringer has any direct control over our management, we do not have the benefit of independent consideration of issues affecting our Partnership operations. Therefore, Mr. Behringer alone will determine the propriety of his own actions, which could result in a conflict of interest when he is faced with any significant decision relating to our Partnership affairs. We have established an advisory board to review our investments and make
recommendations to our General Partners. Although it is not anticipated that our General Partners will determine to make or dispose of investments on our behalf contrary to the recommendation of our advisory board, our General Partners are not required to follow the advice or recommendations of the advisory board.
Our General Partners have a limited net worth consisting of assets that are not liquid, which may adversely affect the ability of our General Partners to fulfill their financial obligations to us.
The net worth of our General Partners consists primarily of interests in real estate, retirement plans, partnerships and closely-held businesses. Accordingly, the net worth of our General Partners is illiquid and not readily marketable. This illiquidity, and the fact that our General Partners have commitments to other Behringer Harvard programs, may adversely affect the ability of our General Partners to fulfill their financial obligations to us.
Our rights and the rights of our limited partners to recover claims against our General Partners are limited.
Our Partnership Agreement provides that our General Partners will have no liability for any action or failure to act that the General Partners in good faith determine was in our best interest, provided their action or failure to act did not constitute negligence or misconduct. As a result, we and our limited partners may have more limited rights against our General Partners than might otherwise exist under common law. In addition, we may be obligated to fund the defense costs incurred by our General Partners in some cases.
Our units are generally not suitable for IRAs and other retirement plans subject to ERISA.
Because our intended operations will likely give rise to unrelated business taxable income (“UBTI”), our units are generally not an appropriate investment vehicle for IRAs and retirement plans subject to ERISA.
Risks Related to Conflicts of Interest
We will be subject to conflicts of interest arising out of our relationships with our General Partners and their affiliates, including the material conflicts discussed below.
Because a number of our affiliated real estate programs use investment strategies that are similar to ours, our General Partners will face conflicts of interest relating to the purchase and leasing of properties, and such conflicts may not be resolved in our favor.
Although affiliates of our General Partners generally seek to avoid simultaneous public offerings of funds that have a substantially similar mix of fund characteristics, including targeted investment types, investment objectives and criteria, and anticipated fund terms, there may be periods during which one or more Behringer Harvard programs are seeking to invest in similar properties. As a result, we may be buying properties at the same time as one or more of the other Behringer Harvard programs managed by affiliates of our General Partners are buying properties, and these other Behringer Harvard programs may use investment strategies that are similar to ours. There is a risk that our General Partners will choose a property that provides lower returns to us than a property purchased by another Behringer Harvard program. We cannot be sure that our General Partners acting on our behalf and on behalf of managers of other Behringer Harvard programs will act in our best interests when deciding whether to allocate any particular property to us. In addition, we may acquire properties in geographic areas where other Behringer Harvard programs own properties. If one of the other Behringer Harvard programs attracts a tenant that we are competing for, we could suffer a loss of revenue due to delays in locating another suitable tenant. Investors will not have the opportunity to evaluate the manner in which these conflicts of interest are resolved before or after making their investment.
Our General Partners will face conflicts of interest relating to the incentive fee structure under our Partnership Agreement that could result in actions that are not necessarily in the long-term best interests of our limited partners.
Under our Partnership Agreement, our General Partners are entitled to fees that are structured in a manner intended to provide incentives to our General Partners to perform in our best interests and in the best interests of our limited partners. However, because our General Partners’ participation in our distributions of cash from operations and sale proceeds is subordinate to the preferred return of the limited partners, our General Partners’ interests are not wholly aligned with those of our limited partners. In that regard, our General Partners could be motivated to recommend riskier or more speculative investments in order to generate proceeds that would entitle our General Partners to participating distributions. In addition, our General Partners’ entitlement to real estate commissions upon the resale of our properties could result in our General Partners recommending sales of our investments at the earliest possible time in order to entitle them to compensation relating to such sales, even if continued ownership of those investments might be in our best long-term interest.
Our General Partners will face conflicts of interest relating to joint ventures, which could result in a disproportionate benefit to a Behringer Harvard program or third party other than us.
We have entered and may in the future enter into joint ventures with other Behringer Harvard sponsored programs or other third parties having investment objectives similar to ours for the acquisition, development or improvement of properties. We have also purchased and developed properties in joint ventures or in partnerships, co-tenancies or other co-
ownership arrangements with the sellers of the properties, affiliates of the sellers, developers or other persons. Such investments may involve risks not otherwise present with other methods of investment in real estate, including, for example:
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the possibility that our co-venturer, co-tenant or partner in an investment might become bankrupt;
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that such co-venturer, co-tenant or partner may at any time have economic or business interests or goals which are or which become inconsistent with our business interests or goals;
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that such co-venturer, co-tenant or partner may be in a position to take action contrary to our instructions or requests or contrary to our policies or objectives; or
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the possibility that we may incur liabilities as the result of the action taken by our co-venturer, co-tenant or partner.
Actions by such a co-venturer, co-tenant or partner might have the result of subjecting the property to liabilities in excess of those contemplated and may have the effect of reducing limited partners returns.
Affiliates of our General Partners have sponsored, or are currently sponsoring registered public offerings on behalf of Behringer Harvard REIT I, Behringer Harvard Opportunity REIT I, Behringer Harvard Opportunity REIT II and Behringer Harvard Mid-Term Value Enhancement Fund I. Mr. Behringer and his affiliate, Behringer Harvard Advisors I LP (an entity that is under common control with our general partner, Behringer Advisors II), act as general partners of Behringer Harvard Mid-Term Value Enhancement Fund I LP, and Mr. Behringer serves as Chief Executive Officer and Chairman of the Board of Behringer Harvard REIT I, Inc., Behringer Harvard Opportunity REIT I, Inc. and Behringer Harvard Opportunity REIT II, Inc. Because our General Partners or their affiliates have advisory and management arrangements with other Behringer Harvard programs, it is likely that they will encounter opportunities to acquire or sell properties to the benefit of one of the Behringer Harvard programs, but not others. Our General Partners or their affiliates may make decisions to buy or sell certain properties, which decisions might disproportionately benefit a Behringer Harvard program other than us. In such event, our results of operations and ability to pay distributions to our limited partners could be adversely affected.
If we enter into a joint venture with another Behringer Harvard program or joint venture, our General Partners may have a conflict of interest when determining when and whether to buy or sell a particular real estate property, and limited partners may face certain additional risks. For example, if we joint venture with a Behringer Harvard real estate investment trust (“REIT”) that subsequently becomes listed on a national exchange, such REIT would automatically become a perpetual life entity at the time of listing and might not continue to have similar goals and objectives with respect to the resale of properties as it had prior to being listed. In addition, if that Behringer Harvard REIT was not listed on a securities exchange by the time set forth in its charter, its organizational documents might provide for an immediate liquidation of its assets. In the event of such liquidation, any joint venture between us and that Behringer Harvard REIT might also be required to sell its properties at such time even though we may not otherwise desire to do so. Although the terms of any joint venture agreement between us and another Behringer Harvard program would grant us a right of first refusal to buy such properties, it is unlikely that we would have sufficient funds to exercise our right of first refusal under these circumstances.
Since our General Partners and their affiliates control us and either control or serve as advisor to other Behringer Harvard programs, agreements and transactions between the parties with respect to any joint venture between or among such parties will not have the benefit of arm’s length negotiation of the type normally conducted between unrelated co-venturers. Under these joint venture arrangements, neither co-venturer may have the power to control the venture, and under certain circumstances, an impasse could be reached regarding matters pertaining to the joint venture, which might have a negative influence on the joint venture and decrease potential returns to limited partners. In the event that a co-venturer has a right of first refusal to buy out the other co-venturer, it may be unable to finance such buy-out at that time. It may also be difficult for us to sell our interest in any such joint venture or partnership or as a co-tenant in property. In addition, to the extent that our co-venturer, partner or co-tenant is an affiliate of our General Partners, certain conflicts of interest will exist.
Our General Partners and certain of their key personnel will face competing demands relating to their time, and this may cause our investment returns to suffer.
Our General Partners and certain of their key personnel and their respective affiliates are general partners and sponsors of other real estate programs having investment objectives and legal and financial obligations similar to ours and may have other business interests as well. Because these persons have competing interests on their time and resources, they may have conflicts of interest in allocating their time between our business and these other activities. During times of intense activity in other programs and ventures, they may devote less time and resources to our business than is necessary or appropriate. If this occurs, the returns on our investments may suffer.
Our General Partners and certain of their key personnel face conflicts of interest related to the positions they hold with affiliated entities, which could diminish the value of the services they provide to us.
Mr. Behringer and certain of the key personnel of Behringer Advisors II are also officers of our property manager, our dealer manager and other affiliated entities. As a result, these individuals owe fiduciary duties to these other entities, which may conflict with the fiduciary duties that they owe to us and our investors. Conflicts with our business and interests are most likely to arise from involvement in activities related to (1) allocation of new investments and management time and services between us and the other entities, (2) the timing and terms of the investment in or sale of an asset, (3) development of our properties by affiliates, (4) investments with affiliates of our General Partners, (5) compensation to our General Partners, and (6) our relationship with our dealer manager and property manager.
Because we rely on affiliates of Behringer Holdings for the provision of property management and dealer manager services, if Behringer Holdings is unable to meet its obligations, we may be required to find alternative providers of these services, which could result in a disruption of our business.
Behringer Holdings, through one or more of its subsidiaries, owns and controls HPT Management, our management company, and Behringer Securities, our dealer manager. The operations of HPT Management and Behringer Securities represent a substantial majority of the business of Behringer Holdings. In light of the common ownership of these entities and their importance to Behringer Holdings, we consider the financial condition of Behringer Holdings when assessing the financial condition of HPT Management and Behringer Securities. While we believe that Behringer Holdings currently has adequate cash availability from both funds on hand and borrowing capacity through its existing credit facilities in order to meet its obligations, its continued viability may be affected by its ability to continue to successfully sponsor and operate real estate programs. In the event that Behringer Holdings would be unable to meet its obligations as they become due, we might be required to find alternative service providers, which could result in disruption of our business.
There is no separate counsel for us and our affiliates, which could result in conflicts of interest.
Morris, Manning & Martin, LLP acts as legal counsel to us, and is also expected to represent our General Partners and some of their affiliates from time to time. There is a possibility in the future that the interests of the various parties may become adverse and, under the Code of Professional Responsibility of the legal profession, Morris, Manning & Martin, LLP may be precluded from representing any one or all of such parties. If any situation arises in which our interests appear to be in conflict with those of our General Partners or their affiliates, additional counsel may be retained by one or more of the parties to assure that their interests are adequately protected. Moreover, should such a conflict not be readily apparent, or otherwise not recognized, Morris, Manning & Martin, LLP may inadvertently act in derogation of the interest of the parties which could affect us and, therefore, our limited partners’ ability to meet our investment objectives.
Risks Related to Our Business in General
The provisions of the Texas Business Organizations Code applicable to limited partnerships do not grant limited partners any voting rights, and limited partners’ rights are limited under our Partnership Agreement.
A vote of a majority of the units of limited partnership interest is sufficient to take the following actions:
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to amend our Partnership Agreement;
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to dissolve and terminate the Partnership;
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to remove our General Partners; and
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to authorize a merger or a consolidation of the Partnership.
These are the only significant voting rights granted to our limited partners under our Partnership Agreement. In addition, the Texas Business Organizations Code does not grant limited partners any specific voting rights. Therefore, limited partners’ voting rights in our operations are limited.
Our General Partners will make all decisions with respect to our management and determine all of our major policies, including our financing, growth, investment strategies and distributions. Our General Partners may revise these and other policies without a vote of the limited partners. Therefore, limited partners will be relying almost entirely on our General Partners for our management and the operation of our business. Our General Partners may only be removed under certain conditions, as set forth in our Partnership Agreement. If our General Partners are removed, they will receive payment equal to the fair market value of their interests in us as agreed upon by our General Partners and us, or by arbitration if we are unable to agree.
Limited partners will have limited voting rights, and will be bound by the majority vote on matters on which they are entitled to vote.
Our Partnership Agreement provides that limited partners may vote on only a few operational matters, including the removal of our General Partners. However, limited partners will be bound by the majority vote on matters requiring approval of a majority of the units of limited partnership interest even if they do not vote with the majority on any such matter. Therefore, limited partners will have little to no control over our day-to-day operations.
Payment of fees to our General Partners and their affiliates will reduce cash available for investment and distribution.
Our General Partners and their affiliates will perform services for us in connection with the selection and acquisition of our investments, and the management and leasing of our properties and the administration of our other investments. They will be paid substantial fees for these services, which will reduce the amount of cash available for investment in properties or distribution to limited partners.
We may be restricted in our ability to replace our property manager under certain circumstances.
Under the terms of our property management agreement, we may terminate the agreement upon 30 days’ notice in the event of (and only in the event of) a showing of willful misconduct, gross negligence, or deliberate malfeasance by the property manager in the performance of the property manager’s duties. Our General Partners may find the performance of our property manager to be unsatisfactory. However, such performance by the property manager may not reach the level of “willful misconduct, gross negligence, or deliberate malfeasance.” As a result, we may be unable to terminate the property management agreement at the desired time, which may have an adverse effect on the management and profitability of our properties.
The distributions we pay to our limited partners are not necessarily indicative of our current or future operating results and there can be no assurance that we will be able to achieve expected cash flows necessary to continue to pay or maintain cash distributions at any particular level, or that distributions will increase over time.
There are many factors that can affect the availability and timing of cash distributions to limited partners. Distributions will be based principally on cash available from our properties, real estate securities and other investments. We expect to distribute net cash from operations and nonliquidating sales of properties to limited partners. However, our General Partners, in their discretion, may defer fees payable by us to the General Partners, allowing for more cash to be available to us for distribution to our limited partners. In addition, our General Partners may make supplemental payments to us or our limited partners, or otherwise support our operations to the extent not prohibited under the NASAA Guidelines, which would permit distributions to our limited partners in excess of net cash from operations. The amount of cash available for distributions will be affected by many factors, such as our ability to buy properties, the yields on securities of other real estate programs in which we invest, and our operating expense levels, as well as many other variables. Actual cash available for distributions may vary substantially from estimates. We currently pay monthly distributions at an annualized rate of 3%. Such distributions are not necessarily indicative of current or future operating results and we can give no assurance that we will be able to maintain distributions at the current rate or that distributions will increase over time. Nor can we give any assurance that rents or other income from our investments will increase, that the investments we make will increase in value or provide constant or increased distributions over time, or that future acquisitions of real properties, mortgage loans or our investments in securities will increase our cash available for distributions to limited partners. Our actual results may differ significantly from the assumptions used by our General Partners in establishing the distribution rate to limited partners.
Many of the factors that can affect the availability and timing of cash distributions to limited partners are beyond our control, and a change in any one factor could adversely affect our ability to pay future distributions. For instance:
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If one or more tenants defaults or terminates its lease, there could be a decrease or cessation of rental payments, which would mean less cash available for distributions.
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Cash available for distributions would be reduced if we are required to spend money to correct defects or to make improvements to properties.
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Cash available to make distributions may decrease if the assets we acquire have lower yields than expected.
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If we borrow funds from third parties, more of our cash on hand will be needed to make debt payments, and cash available for distributions may therefore decrease.
In addition, our General Partners, in their discretion, may retain any portion of our cash on hand for working capital. We cannot assure limited partners that sufficient cash will be available to pay distributions to them.
Adverse economic conditions will negatively affect our returns and profitability.
The length and severity of any economic downturn cannot be predicted. In addition, our operating results may be affected by the following market and economic challenges:
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Poor economic times may result in defaults by tenants of our properties.
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Job transfers and layoffs may cause vacancies to increase.
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Increasing concessions or reduced rental rates may be required to maintain occupancy levels.
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Increased insurance premiums may reduce funds available for distribution or, to the extent such increases are passed through to tenants, may lead to tenant defaults. Also, increased insurance premiums may make it difficult to increase rents to tenants on turnover, which may adversely affect our ability to increase our returns.
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Instability in the credit, housing and real estate markets could negatively impact our ability to dispose of our assets.
In addition, there is a risk that depressed economic conditions could cause cash flow and appreciation upon the sale of our properties, if any, to be insufficient to provide a significant return on an investment after payment of our expenses. Our operations could be negatively affected to the extent that an economic downturn is prolonged or becomes more severe.
Gains and distributions upon resale of our properties are uncertain.
Although gains from the sales of properties typically represent a substantial portion of any profits attributable to a real estate investment, we cannot assure investors that we will realize any gains on the resales of our properties. In addition, the amount of taxable gain allocated to investors with respect to the sale of a Partnership property could exceed the cash proceeds received from such sale.
Proceeds from the sale of a property will generally be distributed to investors. The General Partners, in their sole discretion, may determine not to make such distribution if such proceeds are used to:
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purchase land underlying any of our properties;
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buy out the interest of any co-venturer or joint venture partner in a property that is jointly owned;
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enter into a joint venture with respect to a property;
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create working capital reserves;
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make capital improvements to our existing properties; or
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invest in additional properties if a sufficient period of time remains prior to our intended termination date to allow such additional investments to satisfy our investment objectives.
The reinvestment of proceeds from the sale of our properties will not occur, however, unless sufficient cash will be distributed to investors to pay any federal or state income tax liability created by the sale of the property, assuming investors will be subject to a 30% combined federal and state tax rate.
Instability in the credit market and real estate market could have a material adverse effect on our results of operations, financial condition and ability to pay distributions to you.
If debt financing is not available on terms and conditions we find acceptable, we may not be able to obtain financing for investments. Recently, domestic and international financial markets have experienced unusual volatility and uncertainty. If this volatility and uncertainty persists, our ability to borrow money to finance the purchase of, or other activities related to, real estate assets will be significantly impacted. We may find it difficult, costly or impossible to refinance indebtedness which is maturing. If interest rates are higher when the properties are refinanced, we may not be able to finance the properties and our income could be reduced. In addition, if we pay fees to lock-in a favorable interest rate, falling interest rates or other factors could require us to forfeit these fees. All of these events would have a material adverse effect on our results of operations, financial condition and ability to pay distributions to you.
In addition to volatility in the credit markets, the real estate market is subject to fluctuation and can be impacted by factors such as general economic conditions, supply and demand, availability of financing and interest rates. To the extent we purchase or develop real estate in an unstable market, we are subject to the risk that if the real estate market ceases to attract the same level of capital investment in the future that it attracts at the time of our purchases, or the number of companies seeking to acquire properties decreases, the value of our investments may not appreciate or may decrease significantly below the amount we pay for these investments.
General Risks Related to Investments in Real Estate
Our operating results will be affected by economic and regulatory changes that have an adverse impact on the real estate market in general, and we cannot assure investors that we will be profitable or that we will realize growth in the value of our real estate properties.
Our operating results will be subject to risks generally incident to the ownership of real estate, including:
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changes in general economic or local conditions;
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changes in supply of or demand for similar or competing properties in an area;
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changes in interest rates and availability of permanent mortgage funds that may render the sale of a property difficult or unattractive;
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changes in tax, real estate, environmental and zoning laws; and
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periods of high interest rates and tight money supply.
For these and other reasons, we cannot assure investors that we will be profitable or that we will realize growth in the value of our real estate properties.
Properties that have significant vacancies could be difficult to sell, which could diminish the return on an investment.
A property may incur vacancies either by the continued default of tenants under their leases or the expiration of tenant leases. If vacancies continue for a long period of time, we may suffer reduced revenues resulting in less cash to be distributed to limited partners. In addition, the resale value of the property could be diminished because the market value of a particular property will depend principally upon the value of the leases of such property.
We are dependent on tenants for our revenue, and lease terminations could reduce our distributions to our limited partners.
The success of our real property investments, particularly properties occupied by a single tenant, is materially dependent on the financial stability of our tenants. Lease payment defaults by tenants could cause us to reduce the amount of distributions to limited partners. A default by a significant tenant on its lease payments to us would cause us to lose the revenue associated with such lease and cause us to have to find an alternative source of revenue to meet mortgage payments and prevent a foreclosure if the property is subject to a mortgage. In the event of a tenant default, we may experience delays in enforcing our rights as landlord and may incur substantial costs in protecting our investment and re-letting our property. If significant leases are terminated, we cannot assure investors that we will be able to lease the property for the rent previously received or sell the property without incurring a loss.
We may be unable to secure funds for future tenant improvements, which could adversely impact our ability to pay cash distributions to our limited partners.
When tenants do not renew their leases or otherwise vacate their space, it is usual that, in order to attract replacement tenants, we will be required to expend substantial funds for tenant improvements and tenant refurbishments to the vacated space. If we have insufficient working capital reserves, we will have to obtain financing from other sources. We intend to establish initial working capital reserves of 1% of the contract price of the properties we acquire. If these reserves or any reserves otherwise established are insufficient to meet our cash needs, we may have to obtain financing from either affiliated or unaffiliated sources to fund our cash requirements. We cannot assure investors that sufficient financing will be available or, if available, will be available on economically feasible terms or on terms acceptable to us. Our Partnership Agreement imposes certain limits on our ability to borrow money. Any borrowing will require us to pay interest expense, and therefore our financial condition and our ability to pay cash distributions to our limited partners may be adversely affected.
We may be unable to sell a property if or when we decide to do so, which could adversely impact our ability to pay cash distributions to our limited partners.
The real estate market is affected, as set forth above, by many factors, such as general economic conditions, availability of financing, interest rates and other factors, including supply and demand, that are beyond our control. We cannot predict whether we will be able to sell any property for the price or on the terms set by us, or whether any price or other terms offered by a prospective purchaser would be acceptable to us. We cannot predict the length of time needed to find a willing purchaser and to close the sale of a property. If we are unable to sell a property when we determine to do so, it could have a significant adverse effect on our cash flow and results of operations.
If we sell any of our properties in tenant-in-common transactions, those sales may be viewed as sales of securities, and we would retain potential liability after the sale under applicable securities laws.
We may sell properties in tenant-in-common transactions. If we do make such sales, they may be viewed as sales of securities, and as a result if the purchasers in the tenant-in-common transaction had post-closing claims, they could bring claims under applicable securities laws. Those claims could have a material adverse effect upon our business and results of operations.
Uninsured losses relating to real property or excessively expensive premiums for insurance coverage may adversely affect investors’ returns.
Our General Partners will attempt to ensure that all of our properties are adequately insured to cover casualty losses. However, there are types of losses, generally catastrophic in nature, such as losses due to wars, acts of terrorism, earthquakes, floods, hurricanes, pollution or environmental matters, which are uninsurable or not economically insurable, or may be insured subject to limitations, such as large deductibles or co-payments. Insurance risks associated with potential terrorism acts could sharply increase the premiums we pay for coverage against property and casualty claims. Additionally, mortgage lenders in some cases have begun to insist that specific coverage against terrorism be purchased by commercial property owners as a condition for providing mortgage loans. It is uncertain whether such insurance policies will be available, or available at reasonable cost, which could inhibit our ability to finance or refinance our properties. In such instances, we may be required to provide other financial support, either through financial assurances or self-insurance, to cover potential losses. We cannot assure investors that we will have adequate coverage for such losses. In the event that any of our properties incurs a casualty loss which is not fully covered by insurance, the value of our assets will be reduced by any such uninsured loss. In addition, other than the working capital reserve or other reserves we may establish, we have no source of funding to repair or reconstruct any uninsured damaged property, and we cannot assure limited partners that any such sources of funding will be available to us for such purposes in the future. Also, to the extent we must pay unexpectedly large amounts for insurance, we could suffer reduced earnings that would result in less cash available for distribution to limited partners.
Our operating results may be negatively affected by potential development and construction delays and resultant increased costs and risks.
We have invested some of the proceeds available for investment in the acquisition and development of properties upon which we will develop and construct improvements at a fixed contract price. We are subject to risks relating to uncertainties associated with re-zoning for development and environmental concerns of governmental entities and/or community groups and our builder’s ability to control construction costs or to build in conformity with plans, specifications and timetables. The builder’s failure to perform may necessitate legal action by us to rescind the purchase or the construction contract or to compel performance. Performance may also be affected or delayed by conditions beyond the builder’s control. Delays in completion of construction could also give tenants the right to terminate preconstruction leases for space at a newly developed project. We may incur additional risks when we make periodic progress payments or other advances to such builders prior to completion of construction. These and other such factors can result in increased costs of a project or loss of our investment. In addition, we will be subject to normal lease-up risks relating to newly constructed projects. Furthermore, we must rely upon projections of rental income and expenses and estimates of the fair market value of property upon completion of construction when agreeing upon a price to be paid for the property at the time of acquisition of the property. If our projections are inaccurate, we may pay too much for a property, and our return on our investment could suffer.
In addition, we have invested in unimproved real property. Returns from development of unimproved properties are also subject to risks and uncertainties associated with re-zoning the land for development and environmental concerns of governmental entities and/or community groups. Although our intention is to limit any investment in unimproved property to property we intend to develop, an investment nevertheless is subject to the risks associated with investments in unimproved real property.
If we contract with Behringer Development for newly developed property, we cannot guarantee that our earnest money deposit made to Behringer Development will be fully refunded.
We may enter into one or more contracts, either directly or indirectly through joint ventures with affiliates or others, to acquire real property from Behringer Development, an affiliate of our General Partners. Properties acquired from Behringer Development may be either existing income-producing properties, properties to be developed or properties under development. We anticipate that we will be obligated to pay a substantial earnest money deposit at the time of contracting to acquire such properties. In the case of properties to be developed by Behringer Development, we anticipate that we will be required to close the purchase of the property upon completion of the development of the property by Behringer Development. At the time of contracting and the payment of the earnest money deposit by us, Behringer Development typically will not have acquired title to any real property. Typically, Behringer Development will only have a contract to acquire land, a development agreement to develop a building on the land and an agreement with one or more tenants to lease all or part of the property upon its completion. We will not be required to close a purchase from Behringer Development, and will be entitled to a refund of our earnest money, in the following circumstances:
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Behringer Development fails to develop the property; or
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all or a specified portion of the pre-leased tenants fail to take possession under their leases for any reason.
The obligation of Behringer Development to refund our earnest money will be unsecured, and no assurance can be made that we would be able to obtain a refund of such earnest money deposit from it under these circumstances since Behringer Development is an entity without substantial assets or operations. However, Behringer Development’s obligation to refund our earnest money deposit will be guaranteed by HPT Management, our property manager, which enters into contracts to provide property management and leasing services to various Behringer Harvard programs, including us, for substantial monthly fees. As of the time HPT Management may be required to perform under any guaranty, we cannot assure limited partners that HPT Management will have sufficient assets to refund all of our earnest money deposit in a lump sum payment. If we were forced to collect our earnest money deposit by enforcing the guaranty of HPT Management, we will likely be required to accept installment payments over time payable out of the revenues of HPT Management’s operations. We cannot assure limited partners that we would be able to collect the entire amount of our earnest money deposit under such circumstances.
Competition with third parties in acquiring properties may reduce our profitability and the return on an investment.
We compete with many other entities engaged in real estate investment activities, including individuals, corporations, bank and insurance company investment accounts, REITs, other real estate limited partnerships, and other entities engaged in real estate investment activities, many of which have greater resources than we do. Larger real estate programs may enjoy significant competitive advantages that result from, among other things, a lower cost of capital and enhanced operating efficiencies. In addition, the number of entities and the amount of funds competing for suitable properties may increase. Any such increase would result in increased demand for these assets and therefore increased prices paid for them. If we pay higher prices for properties and other investments, our profitability will be reduced and limited partners may experience a lower return on their investment.
Uncertain market conditions and the broad discretion of our General Partners relating to the future disposition of properties could adversely affect the return on an investment.
We intend to hold the various real properties in which we invest until such time as our General Partners determine that a sale or other disposition appears to be advantageous to achieve our investment objectives or until it appears that such objectives will not be met. Our General Partners may exercise their discretion as to whether and when to sell a property, and we will have no obligation to sell properties at any particular time, except upon our liquidation. We cannot predict with any certainty the various market conditions affecting real estate investments that will exist at any particular time in the future. Although we generally intend to hold properties for three to five years from the termination of the Offering in February 2005, due to the uncertainty of market conditions that may affect the future disposition of our properties, we cannot assure limited partners that we will be able to sell our properties at a profit in the future. Accordingly, the extent to which investors will receive cash distributions and realize potential appreciation on our real estate investments will be dependent upon fluctuating market conditions.
A concentration of our investments in any one property class may leave our profitability vulnerable to a downturn in such sector.
At any one time, a significant portion of our investments could be in one property class. As a result, we will be subject to risks inherent in investments in a single type of property. If our investments are substantially in one property class, then the potential effects on our revenues, and as a result, on cash available for distribution to our stockholders, resulting from a downturn in the businesses conducted in those types of properties could be more pronounced than if we had more fully diversified our investments.
Acquiring or attempting to acquire multiple properties in a single transaction may adversely affect our operations.
From time to time, we may attempt to acquire multiple properties in a single transaction. Portfolio acquisitions are more complex and expensive than single-property acquisitions, and the risk that a multiple-property acquisition does not close may be greater than in a single-property acquisition. Portfolio acquisitions may also result in us owning investments in geographically dispersed markets, placing additional demands on our ability to manage the properties in the portfolio. In addition, a seller may require that a group of properties be purchased as a package even though we may not want to purchase one or more properties in the portfolio. In these situations, if we are unable to identify another person or entity to acquire the unwanted properties, we may be required to operate or attempt to dispose of these properties. Any of the foregoing events may have an adverse effect on our operations.
If we set aside insufficient working capital reserves, we may be required to defer necessary property improvements.
If we do not estimate enough reserves for working capital to supply needed funds for capital improvements throughout the life of the investment in a property, we may be required to defer necessary improvements to the property that
may cause the property to suffer from a greater risk of obsolescence or a decline in value, or a greater risk of decreased cash flow as a result of fewer potential tenants being attracted to the property. If this happens, we may not be able to maintain projected rental rates for affected properties, and our results of operations may be negatively impacted.
The costs of compliance with environmental laws and other governmental laws and regulations may adversely affect our income and the cash available for any distributions.
All real property and the operations conducted on real property are subject to federal, state and local laws and regulations relating to environmental protection and human health and safety. These laws and regulations generally govern wastewater discharges, air emissions, the operation and removal of underground and above-ground storage tanks, the use, storage, treatment, transportation and disposal of solid and hazardous materials, and the remediation of contamination associated with disposals. Some of these laws and regulations may impose joint and several liability on tenants, owners or operators for the costs of investigation or remediation of contaminated properties, regardless of fault or the legality of the original disposal. In addition, the presence of these substances, or the failure to properly remediate these substances, may adversely affect our ability to sell or rent such property or to use the property as collateral for future borrowing.
Some of these laws and regulations have been amended so as to require compliance with new or more stringent standards as of future dates. Compliance with new or more stringent laws or regulations or stricter interpretation of existing laws may require material expenditures by us. We cannot assure limited partners that future laws, ordinances or regulations will not impose any material environmental liability, or that the current environmental condition of our properties will not be affected by the operations of the tenants, by the existing condition of the land, by operations in the vicinity of the properties, such as the presence of underground storage tanks, or by the activities of unrelated third parties. In addition, there are various local, state and federal fire, health, life-safety and similar regulations with which we may be required to comply, and which may subject us to liability in the form of fines or damages for noncompliance.
Discovery of previously undetected environmentally hazardous conditions may adversely affect our operating results.
Under various federal, state and local environmental laws, ordinances and regulations, a current or previous owner or operator of real property may be liable for the cost of removal or remediation of hazardous or toxic substances on, under or in such property. The costs of removal or remediation could be substantial. Such laws often impose liability whether or not the owner or operator knew of, or was responsible for, the presence of such hazardous or toxic substances. Environmental laws also may impose restrictions on the manner in which property may be used or businesses may be operated, and these restrictions may require substantial expenditures. Environmental laws provide for sanctions in the event of noncompliance and may be enforced by governmental agencies or, in certain circumstances, by private parties. Certain environmental laws and common law principles could be used to impose liability for release of and exposure to hazardous substances, including asbestos-containing materials into the air, and third parties may seek recovery from owners or operators of real properties for personal injury or property damage associated with exposure to released hazardous substances. The cost of defending against claims of liability, of compliance with environmental regulatory requirements, of remediating any contaminated property, or of paying personal injury claims could materially adversely affect our business, assets or results of operations and, consequently, amounts available for distribution to limited partners.
Our costs associated with complying with the Americans with Disabilities Act may affect cash available for distributions.
Our properties may be subject to the Americans with Disabilities Act of 1990, as amended (the “Disabilities Act”). Under the Disabilities Act, all places of public accommodation are required to comply with federal requirements related to access and use by disabled persons. The Disabilities Act has separate compliance requirements for “public accommodations” and “commercial facilities” that generally require that buildings and services be made accessible and available to people with disabilities. The Disabilities Act’s requirements could require removal of access barriers and could result in the imposition of injunctive relief, monetary penalties or, in some cases, an award of damages. We will attempt to acquire properties that comply with the Disabilities Act or place the burden on the seller or other third party, such as a tenant, to ensure compliance with the Disabilities Act. However, we cannot assure investors that we will be able to acquire properties or allocate responsibilities in this manner. If we cannot, our funds used for Disabilities Act compliance may affect cash available for distributions and the amount of distributions, if any.
If we sell properties by providing financing to purchasers, we will bear the risk of default by the purchaser.
If we decide to sell any of our properties, we intend to use our best efforts to sell them for cash. However, in some instances we may sell our properties by providing financing to purchasers. When we provide financing to purchasers, we will bear the risk of default by the purchaser and will be subject to remedies provided by law, which could negatively impact our cash distributions to limited partners. There are no limitations or restrictions on our ability to take purchase money obligations. We may, therefore, take a purchase money obligation secured by a mortgage as part payment for the purchase price. The terms of payment to us generally will be affected by custom in the area where the property being sold is located and the then-prevailing economic conditions. If we receive promissory notes or other property in lieu of cash from property
sales, the distribution of the proceeds of sales to our limited partners, or their reinvestment in other properties, will be delayed until the promissory notes or other property are actually paid, sold, refinanced or otherwise disposed of. In some cases, we may receive initial down payments in cash and other property in the year of sale in an amount less than the selling price and subsequent payments will be spread over a number of years. If any purchaser defaults under a financing arrangement with us, it could negatively impact our ability to pay cash distributions to limited partners.
We may have to make significant capital expenditures to maintain lodging facilities.
Hotels have an ongoing need for renovations and other capital improvements, including replacement of furniture, fixtures and equipment. Generally, we will be responsible for the costs of these capital improvements, which gives rise to the following risks:
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cost overruns and delays;
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renovations can be disruptive to operations and can displace revenue at the hotels, including revenue lost while rooms under renovation are out of service;
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the cost of funding renovations and the possibility that financing for these renovations may not be available on attractive terms; and
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the risk that the return on our investment in these capital improvements will be less than expected.
If we have insufficient cash flow from operations to fund needed capital expenditures, then we will need to borrow money to fund future capital improvements.
We are dependent on third-party managers of lodging facilities.
We depend on independent management companies to adequately operate our hotels and will depend on independent management companies for any additional lodging facilities we acquire. We generally will not have the authority to require any hotel to be operated in a particular manner or to govern any particular aspect of the daily operations of any hotel (for instance, setting room rates). Thus, even if we believe our hotels are being operated inefficiently or in a manner that does not result in satisfactory occupancy rates, revenue per available room and average daily rates, we may not be able to force the management company to change its method of operation of our hotels. We can only seek redress if a management company violates the terms of the applicable management agreement, and then only to the extent of the remedies provided for under the terms of the management agreement. In the event that we need to replace any of our management companies, we may be required by the terms of the management agreement to pay substantial termination fees and may experience significant disruptions at the affected hotels.
Risks Associated with Debt Financing
We will incur mortgage indebtedness and other borrowings, which may increase our business risks.
If it is determined to be in our best interests, we may, in some instances, acquire real properties by using either existing financing or borrowing new funds. In addition, we may incur or increase our mortgage debt by obtaining loans secured by some or all of our real properties to obtain funds to acquire additional real properties. We may incur mortgage debt on a particular real property if we believe the property’s projected cash flow is sufficient to service the mortgage debt. However, if there is a shortfall in cash flow, then the amount available for distributions to limited partners may be affected. In addition, incurring mortgage debt increases the risk of loss since defaults on indebtedness secured by a property may result in foreclosure actions initiated by lenders and our loss of the property securing the loan which is in default. For tax purposes, a foreclosure of any of our properties would be treated as a sale of the property for a purchase price equal to the outstanding balance of the debt secured by the mortgage. If the outstanding balance of the debt secured by the mortgage exceeds our tax basis in the property, we would recognize taxable income on foreclosure, but would not receive any cash proceeds. We may give full or partial guarantees to lenders of mortgage debt to the entities that own our properties. When we give a guaranty on behalf of an entity that owns one of our properties, we will be responsible to the lender for satisfaction of the debt if it is not paid by such entity. If any mortgages contain cross-collateralization or cross-default provisions, there is a risk that more than one real property may be affected by a default. If any of our properties are foreclosed upon due to a default, our ability to pay cash distributions to our limited partners will be adversely affected. Our approach to investing in properties utilizing leverage in order to accomplish our investment objectives may present more risks to investors than comparable real estate programs which have a longer intended duration and which do not utilize borrowing to the same degree.
If mortgage debt is unavailable at reasonable rates, we may not be able to finance the properties, which could reduce the number of properties we can acquire and the amount of cash distributions we can make.
If we place mortgage debt on properties, we run the risk of being unable to refinance the properties when the loans come due, or of being unable to refinance on favorable terms. If interest rates are higher when the properties are refinanced,
we may not be able to finance the properties and our income could be reduced. If this occurs, it would reduce cash available for distribution to our limited partners, and it may prevent us from borrowing more money.
Lenders may require us to enter into restrictive covenants that may have an adverse effect on our operations.
In connection with obtaining certain financing, a lender could impose restrictions on us that affect our ability to incur additional debt and our distribution and operating policies. Loan documents we enter into may contain customary negative covenants that may limit our ability to further mortgage the property, to discontinue insurance coverage, replace our General Partners or impose other limitations. Any such restriction or limitation may have an adverse effect on our operations.
Increases in interest rates could increase the amount of our debt payments and adversely affect our ability to pay distributions to our investors.
We borrow money that bears interest at a variable rate. In addition, from time to time we may pay mortgage loans or refinance our properties in a rising interest rate environment. Accordingly, increases in interest rates would increase our interest costs, which could have a material adverse effect on our operating cash flow and our ability to pay distributions. In addition, if rising interest rates cause us to need additional capital to repay indebtedness in accordance with its terms or otherwise, we may be required to liquidate one or more of our investments in properties at times which may not permit realization of the maximum return on such investments.
The aggregate amount we may borrow is limited under our Partnership Agreement, which may hinder our ability to secure additional funding when it is needed.
Our Partnership Agreement limits the aggregate amount we may borrow in accordance with the requirements of the NASAA Guidelines to the sum of (1) with respect to loans insured, guaranteed or provided by the federal government or any state or local government or agency, 100% of the aggregate purchase price of all of our properties which have not been refinanced plus 100% of the aggregate fair market value of all of our refinanced properties and (2) with respect to other loans, the sum of 85% of the aggregate purchase price of all of our properties which have not been refinanced plus 85% of the aggregate fair market value of all of our refinanced properties. That limitation could have adverse business consequences such as: (1) freezing our ability to purchase additional properties; (2) causing operational problems if there were cash flow shortfalls for working capital purposes; and (3) resulting in the loss of a property if, for example, financing were necessary to repay a default on a mortgage.
Financing arrangements involving balloon payment obligations may adversely affect our ability to make distributions.
Our fixed-term financing arrangements generally require us to make “balloon” payments at maturity. Our ability to make a balloon payment at maturity is uncertain and may depend upon our ability to obtain additional financing or our ability to sell the property. At the time the balloon payment is due, we may or may not be able to refinance the balloon payment on terms as favorable as the original loan or sell the property at a price sufficient to make the balloon payment. The effect of a refinancing or sale could affect the rate of return to stockholders and the projected time of disposition of our assets. In addition, payments of principal and interest made to service our debts may leave us with insufficient cash to pay distributions. Any of these results would have a significant, negative impact on your investment.
Future financing could be impacted by negative capital market conditions.
Recently, the U.S. credit markets and the sub-prime residential mortgage market have experienced severe dislocations and liquidity disruptions. Sub-prime mortgage loans have experienced increasing rates of delinquency, foreclosure and loss. These and other related events have had a significant impact on the capital markets associated not only with sub-prime mortgage-backed securities, asset-backed securities and collateralized debt obligations, but also with the U.S. housing, credit and financial markets as a whole. Consequently, there is greater uncertainty regarding our ability to access the credit market in order to attract financing on reasonable terms. Our ability to borrow funds to finance future acquisitions or refinance current debt could be adversely affected by our inability to secure permanent financing on reasonable terms, if at all.
Federal Income Tax Risks
The Internal Revenue Service may challenge our characterization of material tax aspects of an investment in our units of limited partnership interest.
An investment in units involves material income tax risks. Limited partners are urged to consult with their own tax advisor with respect to the federal, state and foreign tax considerations of an investment in our units. We will not seek any rulings from the Internal Revenue Service regarding any of the tax issues discussed herein. Further, although we have obtained an opinion from our counsel, Morris, Manning & Martin, LLP, regarding the material federal income tax issues relating to an investment in our units, investors should be aware that the opinion represents only our counsel’s best legal
judgment, based upon representations and assumptions referred to therein and conditioned upon the existence of certain facts. Our counsel’s tax opinion has no binding effect on the Internal Revenue Service or any court. Accordingly, we cannot assure investors that the conclusions reached in the tax opinion, if contested, would be sustained by any court. In addition, our counsel is unable to form an opinion as to the probable outcome of the contest of certain material tax aspects including whether we will be characterized as a “dealer” so that sales of our assets would give rise to ordinary income rather than capital gain and whether we are required to qualify as a tax shelter under the Internal Revenue Code. Our counsel also gives no opinion as to the tax considerations to investors of tax issues that have an impact at the individual or partner level. Accordingly, investors are urged to consult with and rely upon their own tax advisors with respect to tax issues that have an impact at the partner or individual level.
Investors may realize taxable income without cash distributions, and may have to use funds from other sources to pay their tax liabilities.
As our limited partner, investors will be required to report their allocable share of our taxable income on their personal income tax return regardless of whether they have received any cash distributions from us. It is possible that limited partnership units will be allocated taxable income in excess of their cash distributions. We cannot assure investors that cash flow will be available for distribution in any year. As a result, investors may have to use funds from other sources to pay their tax liability.
We could be characterized as a publicly traded partnership, which would have an adverse tax effect on investors.
If the Internal Revenue Service were to classify us as a publicly traded partnership, we could be taxable as a corporation, and distributions made to investors could be treated as portfolio income rather than passive income. Our counsel has given its opinion that we will not be classified as a publicly traded partnership, which is defined generally as a partnership whose interests are publicly traded or frequently transferred. However, this opinion is based only upon certain representations of our General Partners and the provisions in our Partnership Agreement that attempt to comply with certain safe harbor standards adopted by the Internal Revenue Service. We cannot assure investors that the Internal Revenue Service will not challenge this conclusion or that we will not, at some time in the future, be treated as a publicly traded partnership due to the following factors:
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the complex nature of the Internal Revenue Service safe harbors;
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the lack of interpretive guidance with respect to such provisions; and
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the fact that any determination in this regard will necessarily be based upon facts that have not yet occurred.
The deductibility of losses will be subject to passive loss limitations, and therefore their deductibility will be limited.
Limited partnership units will be allocated their pro rata share of our tax losses. Section 469 of the Internal Revenue Code limits the allowance of deductions for losses attributable to passive activities, which are defined generally as activities in which the taxpayer does not materially participate. Any tax losses allocated to investors will be characterized as passive losses, and accordingly, the deductibility of such losses will be subject to these limitations. Losses from passive activities are generally deductible only to the extent of a taxpayer’s income or gains from passive activities and will not be allowed as an offset against other income, including salary or other compensation for personal services, active business income or “portfolio income,” which includes non-business income derived from dividends, interest, royalties, annuities and gains from the sale of property held for investment. Accordingly, investors may receive no current benefit from their share of tax losses unless they are currently being allocated passive income from other sources.
The Internal Revenue Service may challenge our allocations of profit and loss, and any reallocation of items of income, gain, deduction and credit could reduce anticipated tax benefits.
Counsel has given its opinion that it is more likely than not that Partnership items of income, gain, loss, deduction and credit will be allocated among our General Partners and our limited partners substantially in accordance with the allocation provisions of the Partnership Agreement. We cannot assure investors, however, that the Internal Revenue Service will not successfully challenge the allocations in the Partnership Agreement and reallocate items of income, gain, loss, deduction and credit in a manner that reduces anticipated tax benefits. The tax rules applicable to allocation of items of taxable income and loss are complex. The ultimate determination of whether allocations adopted by us will be respected by the Internal Revenue Service will depend upon facts which will occur in the future and which cannot be predicted with certainty or completely controlled by us. If the allocations we use are not recognized, limited partners could be required to report greater taxable income or less taxable loss with respect to an investment in us and, as a result, pay more tax and associated interest and penalties. Our limited partners might also be required to incur the costs of amending their individual returns.
We may be characterized as a dealer, and if so, any gain recognized upon a sale of real property would be taxable to investors as ordinary income.
If we were deemed for tax purposes to be a dealer, defined as one who holds property primarily for sale to customers in the ordinary course of business, with respect to one or more of our properties, any gain recognized upon a sale of such real property would be taxable to investors as ordinary income and would also constitute UBTI to investors who are tax-exempt entities. The resolution of our status in this regard is dependent upon facts that will not be known until the time a property is sold or held for sale. Under existing law, whether property is held primarily for sale to customers in the ordinary course of business must be determined from all the facts and circumstances surrounding the particular property at the time of disposition. These include the number, frequency, regularity and nature of dispositions of real estate by the holder and activities of the holder of the property in selling the property or preparing the property for sale. Accordingly, our counsel is unable to render an opinion as to whether we will be considered to hold any or all of our properties primarily for sale to customers in the ordinary course of business.
We may be audited, which could result in the imposition of additional tax, interest and penalties.
Our federal income tax returns may be audited by the Internal Revenue Service. Any audit of us could result in an audit of an investor’s tax return that may require adjustments of items unrelated to an investment in us, in addition to adjustments to various Partnership items. In the event of any such adjustments, an investor might incur attorneys’ fees, court costs and other expenses contesting deficiencies asserted by the Internal Revenue Service. Investors may also be liable for interest on any underpayment and penalties from the date their tax was originally due. The tax treatment of all Partnership items will generally be determined at the partnership level in a single proceeding rather than in separate proceedings with each partner, and our General Partners are primarily responsible for contesting federal income tax adjustments proposed by the Internal Revenue Service. In this connection, our General Partners may extend the statute of limitations as to all partners and, in certain circumstances, may bind the partners to a settlement with the Internal Revenue Service. Further, our General Partners may cause us to elect to be treated as an electing large partnership. If they do, we could take advantage of simplified flow-through reporting of Partnership items. Adjustments to Partnership items would continue to be determined at the partnership level, however, and any such adjustments would be accounted for in the year they take effect, rather than in the year to which such adjustments relate. Our General Partners will have the discretion in such circumstances either to pass along any such adjustments to the partners or to bear such adjustments at the partnership level.
State and local taxes and a requirement to withhold state taxes may apply, and if so, the amount of net cash from operations payable to investors would be reduced.
The state in which an investor resides may impose an income tax upon their share of our taxable income. Further, states in which we will own our properties may impose income taxes upon their share of our taxable income allocable to any Partnership property located in that state. Many states have also implemented or are implementing programs to require partnerships to withhold and pay state income taxes owed by non-resident partners relating to income-producing properties located in their states, and we may be required to withhold state taxes from cash distributions otherwise payable. Investors may also be required to file income tax returns in some states and report their share of income attributable to ownership and operation by the Partnership of properties in those states. Moreover, despite our pass-through treatment for U.S. federal income tax purposes, certain states may impose income or franchise taxes upon our income and not treat us as a pass-through entity. The imposition of such taxes will reduce the amounts distributable to our limited partners. In the event we are required to withhold state taxes from cash distributions, the amount of the net cash from operations otherwise payable would be reduced. In addition, such collection and filing requirements at the state level may result in increases in our administrative expenses that would have the effect of reducing cash available for distribution. Investors are urged to consult with their own tax advisors with respect to the impact of applicable state and local taxes and state tax withholding requirements on an investment in our units.
Legislative or regulatory action could adversely affect investors.
In recent years, numerous legislative, judicial and administrative changes have been made in the provisions of the federal income tax laws applicable to investments similar to an investment in our units. Additional changes to the tax laws are likely to continue to occur, and we cannot assure investors that any such changes will not adversely affect the taxation of a limited partner. Any such changes could have an adverse effect on an investment in our units or on the market value or the resale potential of our properties. Investors are urged to consult with their own tax advisor with respect to the impact of recent legislation on their investment in units and the status of legislative, regulatory or administrative developments and proposals and their potential effect on an investment in our units. Investors should also note that our counsel’s tax opinion assumes that no legislation that will be applicable to an investment in our units will be enacted after the commencement of the Offering on February 19, 2003.
Congress has passed major federal tax legislation regarding taxes applicable to recipients of dividends. One of the changes reduced the tax rate to recipients of dividends paid by corporations to individuals to a maximum of 15%. The tax changes did not, however, reduce the corporate tax rates. Therefore, the maximum corporate tax rate of 35% has not been
affected. Even with the reduction of the rate on dividends received by the individuals, the combined maximum corporate federal tax rate is 44.75% and, with the effect of state income taxes, can exceed 50%.
Although partnerships continue to receive substantially better tax treatment than entities taxed as corporations, it is possible that future legislation would make a limited partnership structure a less advantageous organizational form for investment in real estate, or that it could become more advantageous for a limited partnership to elect to be taxed for federal income tax purposes as a corporation or a REIT. Pursuant to our Partnership Agreement, our General Partners have the authority to make any tax elections on our behalf that, in their sole judgment, are in our best interest. This authority includes the ability to elect to cause us to be taxed as a corporation or to qualify as a REIT for federal income tax purposes. Our General Partners have the authority under our Partnership Agreement to make those elections without the necessity of obtaining the approval of our limited partners. In addition, our General Partners have the authority to amend our Partnership Agreement without the consent of limited partners in order to facilitate our operations so as to be able to qualify us as a REIT, corporation or other tax status that they elect for us. Our General Partners have fiduciary duties to us and to all investors and would only cause such changes in our organizational structure or tax treatment if they determine in good faith that such changes are in the best interest of our investors.
The State of Texas has enacted legislation that creates a new “margin tax” and decreases state property taxes. This tax reform could result in decreased reimbursable expenses from tenants, and increased taxes on our operations, which could reduce the cash available for distribution to our investors.
In May 2006, the State of Texas enacted legislation that replaces the former Texas franchise tax with a new “margin tax,” which is effective for calendar years beginning after December 31, 2006. The legislation expands the entities from those that were covered by the former Texas franchise tax, and specifically includes limited partnerships as subject to the margin tax. The tax generally will be 1% of an entity’s taxable margin, which is that part of an entity’s total revenue less applicable deductions apportioned to Texas. In May 2006, the State of Texas also enacted legislation that reduces the state property tax. As a result of this Texas property tax legislation, reimbursable expenses from tenants at the property level may decrease, due to decreased property taxes. As a result of our significant assets in Texas, the margin tax, combined with the decrease in reimbursable expenses due to the decreased property tax, could reduce the amount of cash we have available for distribution to investors.
There are special considerations that apply to pension or profit sharing trusts or IRAs investing in our units.
If investors are investing the assets of a pension, profit sharing, 401(k), Keogh or other qualified retirement plan or the assets of an IRA in our units of limited partnership interest, they should be satisfied that, among other things:
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their investment is consistent with their fiduciary obligations under ERISA and the Internal Revenue Code;
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their investment is made in accordance with the documents and instruments governing their plan or IRA, including their plan’s investment policy;
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their investment satisfies the prudence and diversification requirements of ERISA;
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their investment will not impair the liquidity of the plan or IRA;
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they will be able to value the assets of the plan annually in accordance with ERISA requirements;
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their investment will not constitute a prohibited transaction under Section 406 of ERISA or Section 4975 of the Internal Revenue Code;
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their investment will likely produce UBTI for the plan or IRA and, therefore, is not likely to be an appropriate investment for an IRA. (Due to our intended method of operation, it is likely that we will generate UBTI.)
We may dissolve the Partnership if our assets are deemed to be “plan assets” or if we engage in prohibited transactions.
If our assets were deemed to be assets of qualified plans investing as limited partners, known as “plan assets,” our General Partners would be considered to be plan fiduciaries and certain contemplated transactions between our General Partners or their affiliates and us may be deemed to be prohibited transactions subject to excise taxation under Section 4975 of the Internal Revenue Code. Additionally, if our assets were deemed to be plan assets, ERISA’s fiduciary standards would extend to the General Partners as plan fiduciaries with respect to our investments. We have not requested an opinion of our counsel regarding whether or not our assets would constitute plan assets under ERISA, nor have we sought any rulings from the U.S. Department of Labor (“Department of Labor”) regarding classification of our assets.
Department of Labor regulations defining plan assets for purposes of ERISA contain exemptions that, if satisfied, would preclude assets of a limited partnership such as ours from being treated as plan assets. We cannot assure investors that our Partnership Agreement and the Offering have been structured so that the exemptions in such regulations would apply to us, and although our General Partners intend that an investment by a qualified plan in units will not be deemed an investment
in our assets, we can make no representations or warranties of any kind regarding the consequences of an investment in our units by qualified plans in this regard. Plan fiduciaries are urged to consult with and rely upon their own advisors with respect to this and other ERISA issues which, if decided adversely to us, could result in prohibited transactions, which would cause the imposition of excise taxation and the imposition of co-fiduciary liability under Section 405 of ERISA in the event actions undertaken by us are deemed to be non-prudent investments or prohibited transactions.
In the event our assets are deemed to constitute plan assets, or if certain transactions undertaken by us are deemed to constitute prohibited transactions under ERISA or the Internal Revenue Code and no exemption for such transactions applies or is obtainable by us, our General Partners have the right, but not the obligation, upon notice to all limited partners, but without the consent of any limited partner to:
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compel a termination and dissolution of the Partnership; or
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restructure our activities to the extent necessary to comply with any exemption in the Department of Labor regulations or any prohibited transaction exemption granted by the Department of Labor or any condition that the Department of Labor might impose as a condition to granting a prohibited transaction exemption.
Adverse tax considerations may result because of minimum distribution requirements.
If an investor purchased units through an IRA, or if an investor is a trustee of an IRA or other fiduciary of a retirement plan that invested in units, the investor must consider the limited liquidity of an investment in our units as it relates to applicable minimum distribution requirements under the Internal Revenue Code. If units are held and our properties have not yet been sold at such time as mandatory distributions are required to begin to an IRA beneficiary or qualified plan participant, Sections 408(a)(6) and 401(a)(9) of the Internal Revenue Code will likely require that a distribution-in-kind of the units be made to the IRA beneficiary or qualified plan participant. Any such distribution-in-kind of units must be included in the taxable income of the IRA beneficiary or qualified plan participant for the year in which the units are received at the fair market value of the units without any corresponding cash distributions with which to pay the income tax liability attributable to any such distribution. Also, fiduciaries of a retirement plan should consider that, for distributions subject to mandatory income tax withholding under Section 3405 of the Internal Revenue Code, the fiduciary may have an obligation, even in situations involving in-kind distributions of units, to liquidate a portion of the in-kind units distributed in order to satisfy such withholding obligations. There may also be similar state and/or local tax withholding or other obligations that should be considered.
UBTI is likely to be generated with respect to tax-exempt investors.
We intend to incur indebtedness, including indebtedness to acquire our properties. This will cause recharacterization of a portion of our income allocable to tax-exempt investors as UBTI. Further, in the event we are deemed to be a “dealer” in real property, defined as one who holds real estate primarily for sale to customers in the ordinary course of business, the gain realized on the sale of our properties that is allocable to tax-exempt investors would be characterized as UBTI. If we generate UBTI, a trustee of a charitable remainder trust that has invested in us will lose its exemption from income taxation with respect to all of its income for the tax year in question. A tax-exempt limited partner other than a charitable remainder trust that has UBTI in any tax year from all sources of more than $1,000 will be subject to taxation on such income and be required to file tax returns reporting such income.
Item 1B.
Item 1B. Unresolved Staff Comments.
None.
Item 2.
Item 2. Properties.
As of December 31, 2007, we owned interests in six office building properties, one shopping/service center, a hotel redevelopment with an adjoining condominium development, two development properties and undeveloped land. In the aggregate, the office and shopping/service center properties represent approximately 1.2 million rentable square feet.
As of December 31, 2007, we wholly-owned the following properties:
As of December 31, 2007, we owned interests in the following properties through separate limited partnerships or joint venture agreements:
The following information generally applies to all of our properties:
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we believe all of our properties are adequately covered by insurance and suitable for their intended purposes;
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we have no plans for any material renovations, improvements or development of our properties, except in accordance with planned budgets;
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our properties are located in markets where we are subject to competition in attracting new tenants and retaining current tenants; and
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depreciation is provided on a straight-line basis over the estimated useful lives of the buildings.
Pursuant to the SEC’s rules, for each subsequent property acquisition for which we are required to file a current report, we will file a current report on Form 8-K containing information regarding the property acquired, the financial statements related thereto, if necessary, and other pertinent information related to such property.
Item 3.
Item 3. Legal Proceedings.
None.
Item 4.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
PART II
Item 5.
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Market Information
There is no established trading market for our limited partnership units, and we do not expect that one will develop. This illiquidity creates a risk that a limited partner may not be able to sell the units at a time or price acceptable to the limited partner. It also makes it necessary for us to estimate the value of our limited partnership units. As of December 31, 2007, we estimate the per unit value of our limited partnership units to be $9.44. The basis for the valuation was established in our prospectus for the sale of our securities and is set forth below.
In order for Financial Industry Regulatory Authority (“FINRA”) members and their associated persons to participate in the offering and sale of our units of limited partnership interest, we are required pursuant to NASD Rule 2810(b)(5) to disclose in each annual report distributed to investors a per unit estimated value of the units, the method by which it was developed and the date of the data used to develop the estimated value. In addition, we prepare annual statements of estimated unit values to assist fiduciaries of retirement plans subject to the annual reporting requirements of ERISA in the preparation of their reports relating to an investment in our units. For these purposes, the deemed value of our units is $9.44 per unit as of December 31, 2007. The basis for the valuation of our units is the fact that the public offering price for our units in the Offering was $10 per unit (without regard to purchase price discounts for certain categories of purchasers), reduced by $0.56 per unit due to special distributions made in 2005 and 2006 of a portion of the net proceeds from the sale of properties. However, there is no public trading market for the units at this time, and there can be no assurance that investors would receive $9.44 per unit if such a market did exist and they sold their units or that they will be able to receive such amount for their units in the future. Nor does this deemed value reflect the distributions that the limited partners would be entitled to receive if our properties were sold and the sale proceeds were distributed in a liquidation of our Partnership. Such a distribution upon liquidation may be less than $9.44 per unit primarily due to the fact that the funds initially available for investment in properties were reduced from the gross offering proceeds in order to pay selling commissions and dealer manager fees, organization and offering expenses, and acquisition and advisory fees, as described in more detail in the accompanying financial statements. We do not currently anticipate obtaining annual appraisals for the properties we have acquired until fiscal year 2009, and accordingly, the deemed values should not be viewed as an accurate reflection of the fair market value of those properties, nor do they represent the amount of net proceeds that would result from an immediate sale of those properties. We expect to continue to use the $9.44 price as the estimated per unit value reported in our annual reports through December 31, 2008; provided, however, that if we sell any additional properties and make one or more special distributions to limited partners of all or a portion of the net proceeds from such sales, the value per unit will be equal to the offering price in the Offering less the amount of net sale proceeds per unit distributed to investors as a result of the sale of properties.
Unit Redemption Program
The Partnership Agreement includes a unit redemption program approved by our General Partners (the “Redemption Program”). Limited partners who held their units for at least one year were able to redeem all or a portion of their units under the Redemption Program. The General Partners terminated the Redemption Program on December 31, 2006.
The units we purchased under the Redemption Program were cancelled and will not be reissued unless they are first registered with the SEC under the Securities Act and under appropriate state securities laws or otherwise issued in compliance with or exemption from such laws and our Partnership Agreement. As of December 31, 2006, when the Redemption Program was terminated, we had repurchased 193,349 units for $1.7 million.
Holders
As of March 18, 2008, we had 10,803,839 limited partnership units outstanding that were held by a total of approximately 4,200 limited partners.
Distributions
The timing and amount of cash to be distributed to our limited partners is determined by the General Partners and is dependent on a number of factors, including funds available for payment of distributions, financial condition and capital expenditures. However, the Partnership Agreement generally requires cash distributions at least as often as quarterly. We currently declare and pay distributions on a monthly basis. In March 2004, we initiated the declaration of monthly distributions in the amount of a 3% annualized rate of return, based on an investment in our limited partnership units of $10 per share. We record all distributions when declared. We paid special distributions in 2006 and 2005 of a portion of the net proceeds from the sale of properties. Beginning with the November 2006 monthly distribution, distributions in the amount of a 3% annualized rate of return are based on an investment in our limited partnership units of $9.44 per unit as a result of the
special distributions. The following are the distributions declared during the years ended December 31, 2007 and 2006 (in thousands):
The distributions we pay to our limited partners are not necessarily indicative of our current or future operating results, and there can be no assurance that future cash flow will support distributions at the current rate. We expect to continue to distribute net cash from operations and nonliquidating sales of properties to limited partners. However, our General Partners, in their discretion, may defer fees payable by us to the General Partners allowing for more cash to be available to us for distribution to our limited partners. In addition, our General Partners may make supplemental payments to us or to our limited partners, or otherwise support our operations to the extent not prohibited under the NASAA Guidelines, which would permit distributions to our limited partners in excess of net cash from operations. Accordingly, all or some of such distributions may constitute a return of capital to our investors to the extent that distributions exceed net cash from operations, or may be recognized as taxable income by us or by our investors.
Recent Sales of Unregistered Securities
None.
Item 6.
Item 6. Selected Financial Data.
As of December 31, 2007, 2006 and 2005, we had ownership interests in eleven properties. At December 31, 2004, we owned interests in six properties, and at December 31, 2003, we had no investments in real estate, as our first property acquisition was in February 2004. Accordingly, the following selected financial data may not be comparable. The following data should be read in conjunction with our consolidated financial statements and the notes thereto and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” appearing elsewhere in this Annual Report on Form 10-K. The selected data below has been derived from our financial statements (in thousands, except per unit amounts).
Item 7.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following discussion and analysis should be read in conjunction with our accompanying consolidated financial statements and the notes thereto:
Critical Accounting Policies and Estimates
Management’s discussion and analysis of financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”). The preparation of these financial statements requires our management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. On a regular basis, we evaluate these estimates, including investment impairment. These estimates are based on management’s historical industry experience and on various other assumptions that are believed to be reasonable under the circumstances. Actual results may differ from these estimates.
Principles of Consolidation and Basis of Presentation
The consolidated financial statements include our accounts and the accounts of our subsidiaries. All inter-company transactions, balances and profits have been eliminated in consolidation. Interests in entities acquired are evaluated based on Financial Accounting Standards Board Interpretation (“FIN”) No. 46R “Consolidation of Variable Interest Entities,” which requires the consolidation of variable interest entities (“VIE”) in which we are deemed to be the primary beneficiary. If the interest in the entity is determined not to be a VIE under FIN No. 46R, then the entities are evaluated for consolidation under the American Institute of Certified Public Accountants (“AICPA”) Statement of Position (“SOP”) 78-9 “Accounting for Investments in Real Estate Ventures,” as amended by Emerging Issues Task Force (“EITF”) Issue 04-5, “Determining Whether a General Partner, or the General Partners as a Group, Controls a Limited Partnership or Similar Entity When the Limited Partners Have Certain Rights.”
There are judgments and estimates involved in determining if an entity in which we have made an investment is a VIE and if so, if we are the primary beneficiary. The entity is evaluated to determine if it is a VIE by, among other things, calculating the percentage of equity being risked compared to the total equity of the entity. FIN No. 46R provides some guidelines as to what the minimum equity at risk should be, but the percentage can vary depending upon the industry and/or the type of operations of the entity and it is up to management to determine that minimum percentage as it relates to our business and the facts surrounding each of our acquisitions. In addition, even if the entity’s equity at risk is a very low percentage, we are required by FIN No. 46R to evaluate the equity at risk compared to the entity’s expected future losses to determine if there could still in fact be sufficient equity in the entity. Determining expected future losses involves assumptions of various possibilities of the results of future operations of the entity, assigning a probability to each possibility and using a discount rate to determine the net present value of those future losses. A change in the judgments, assumptions and estimates outlined above could result in consolidating an entity that should not be consolidated or accounting for an investment on the equity method that should in fact be consolidated, the effects of which could be material to our financial statements.
Real Estate
Upon the acquisition of real estate properties, we allocate the purchase price of those properties to the tangible assets acquired, consisting of land, inclusive of associated rights, and buildings, any assumed debt, identified intangible assets and asset retirement obligations based on their relative fair values in accordance with Statement of Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible Assets.” Identified intangible assets consist of the fair value of above-market and below-market leases, in-place leases, in-place tenant improvements and tenant relationships. Initial valuations are subject to change until our information is finalized, which is no later than 12 months from the acquisition date.
The fair value of the tangible assets acquired, consisting of land and buildings, is determined by valuing the property as if it were vacant, and the “as-if-vacant” value is then allocated to land and buildings. Land values are derived from appraisals, and building values are calculated as replacement cost less depreciation or management’s estimates of the relative fair value of these assets using discounted cash flow analyses or similar methods. The value of commercial office buildings are depreciated over the estimated useful life of 25 years using the straight-line method and hotels/mixed-use properties are depreciated over the estimated useful life of 39 years using the straight-line method.
We determine the value of above-market and below-market in-place leases for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (1) the contractual amounts to be paid pursuant to the in-place leases and (2) management’s estimate of current market lease rates for the corresponding in-place leases, measured over a period equal to the determined lease term. We record the fair value of above-market and below-market leases as intangible assets or intangible liabilities, respectively, and amortize them as an adjustment to rental income over the determined lease term.
The total value of identified real estate intangible assets acquired is further allocated to in-place lease values and tenant relationships based on our evaluation of the specific characteristics of each tenant’s lease and our overall relationship with that respective tenant. The aggregate value of in-place leases acquired and tenant relationships is determined by applying a fair value model. The estimates of fair value of in-place leases include an estimate of carrying costs during the expected lease-up periods for the respective spaces, considering current market conditions. In estimating fair value of in-place leases, we consider items such as real estate taxes, insurance and other operating expenses, as well as lost rental revenue during the expected lease-up period and carrying costs that would have otherwise been incurred had the leases not been in place, including tenant improvements and commissions. The estimates of the fair value of tenant relationships also include costs to execute similar leases, including leasing commissions, legal costs and tenant improvements as well as an estimate of the likelihood of renewal as determined by management on a tenant-by-tenant basis.
We amortize the value of in-place leases to expense over the term of the respective leases. The value of tenant relationship intangibles is amortized to expense over the initial term and any anticipated renewal periods, but in no event does the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and tenant relationship intangibles would be charged to expense.
We determine the fair value of assumed debt by calculating the net present value of the scheduled note payments using interest rates for debt with similar terms and remaining maturities that we believe we could obtain. Any difference between the fair value and stated value of the assumed debt is recorded as a discount or premium and amortized over the remaining life of the loan.
In allocating the purchase price of each of our properties, management makes assumptions and uses various estimates, including, but not limited to, the estimated useful lives of the assets, the cost of replacing certain assets, discount rates used to determine present values, market rental rates per square foot and the period required to lease the property up to its occupancy at acquisition if it were vacant. Many of these estimates are obtained from independent third party appraisals. However, management is responsible for the source and use of these estimates. A change in these estimates and assumptions could result in the various categories of our real estate assets and/or related intangibles being overstated or understated, which could result in an overstatement or understatement of depreciation and/or amortization expense. These variances could be material to our financial statements.
Impairment of Long-Lived Assets
For real estate we wholly own, management monitors events and changes in circumstances indicating that the carrying amounts of the real estate assets may not be recoverable. When such events or changes in circumstances occur, we will assess potential impairment by comparing estimated future undiscounted operating cash flows expected to be generated over the life of the asset, including its eventual disposition, to the carrying amount of the asset. In the event that the carrying amount exceeds the estimated future undiscounted operating cash flows, we perform an impairment analysis to determine if the carrying amount of the asset needs to be reduced to estimated fair value. We determine the estimated fair value based on cash flow streams using various factors including estimated future selling prices, costs spent to date, remaining budgeted costs and selling costs.
For real estate owned by us through an investment in a limited partnership, joint venture, tenant-in-common interest or other similar investment structure, at each reporting date, management compares the estimated fair value of its investment to the carrying value. An impairment charge is recorded to the extent that the fair value of the investment is less than the carrying amount and the decline in value is determined to be other than a temporary decline.
In evaluating our investments for impairment, management makes several estimates and assumptions, including, but not limited to, the projected date of disposition of the properties, the estimated future cash flows of the properties during our ownership and the projected sales price of each of the properties. A change in these estimates and assumptions could result in understating or overstating the book value of our investments, which could be material to our financial statements.
Inventory Impairment
For condominium inventory, at each reporting date, management compares the estimated fair value less costs to sell to the carrying value. An impairment charge is recorded to the extent that the fair value less costs to sell is less than the carrying value. We determine the estimated fair value of condominiums based on comparable sales in the normal course of business under existing and anticipated market conditions. This evaluation takes into consideration estimated future selling prices, costs spent to date, estimated additional future costs and management’s plans for the property.
Overview
We are organized as a Texas limited partnership formed primarily to invest in and operate commercial properties, and lease such property to one or more tenants. We are opportunistic in our acquisition of properties. Properties may be acquired in markets that are depressed or overbuilt with the anticipation that these properties will increase in value as the markets recover. We purchased our first property on February 11, 2004 in Dallas, Texas. As of December 31, 2007, we
wholly-owned seven properties and owned interests in four properties through investments in partnerships and joint ventures. All four investments in partnerships and joint ventures are consolidated as of December 31, 2007.
Results of Operations
Fiscal year ended December 31, 2007 as compared to the fiscal year ended December 31, 2006
At December 31, 2007 and 2006, we had seven wholly-owned properties and interests in four properties through investments in partnerships and joint ventures. All four investments in partnerships and joint ventures were consolidated with and into our accounts for the twelve months ended December 31, 2007 and 2006. The operations of the Woodall Rodgers Property, which was sold on July 24, 2006, is classified as discontinued operations in each of the periods presented in the accompanying consolidated statements of operations. We purchased Cassidy Ridge, which is currently under development, on May 15, 2006. The single tenant at 250/290 John Carpenter Freeway terminated its lease effective June 30, 2006 and the boutique hotel at Hotel Palomar and Residences became operational in September 2006. We sold condominiums at Hotel Palomar and Residences and completed development construction of the Northwest Highway Land during the year ended December 31, 2007.
Continuing Operations
Rental Revenue. Rental revenue for the years ended December 31, 2007 and 2006 totaled $14.2 million and $17.0 million, respectively, and was comprised of revenue, including adjustments for straight-line rent and amortization of above- and below-market leases, generated by our consolidated properties. The decrease in revenue for the year ended December 31, 2007 is primarily the result of a loss of $3.5 million in revenue, including an early termination fee of $1.8 million in 2006, as a result of the termination of the single tenant’s lease at 250/290 John Carpenter Freeway effective June 30, 2006.
We have scheduled lease expirations of approximately 300,000 rentable square feet during 2008 which includes 100% of (1) 18581 Dallas Parkway, net of an executed long-term lease for approximately 90,000 rentable square feet to a tenant who currently subleases the space, (2) 18451 Dallas Parkway and (3) 1221 Coit Road. As a result of these factors, management expects rental revenue to decrease in the near future.
Hotel Revenue. Hotel revenue for the years ended December 31, 2007 and 2006 was $15.9 million and $2.6 million, respectively, and was comprised of revenue generated by the hotel operations of Hotel Palomar and Residences, which became operational in September 2006. Management expects hotel revenue to remain relatively constant in the near future.
Condominium Sales Revenue. Condominium sales revenue for the year ended December 31, 2007 was $8.2 million and was comprised of the sales of condominiums located at Hotel Palomar and Residences. We completed construction of seventy-one units during the first quarter of 2007 and recognized revenue from the sale of a number of them during the year.
During 2007, the U.S. housing market continued its nationwide downturn as a result of high inventory levels, weak consumer confidence and the availability of mortgage financing to consumers. These factors contributed to weakened demand for new homes, slower than expected sales and reduced selling prices. If these conditions continue to exist, we may experience a decrease in our condominium sales revenue in the future.
Property Operating Expenses. Property operating expenses for the years ended December 31, 2007 and 2006 were $18.0 million and $6.0 million, respectively. Property operating expenses for the years ended December 31, 2007 and 2006 were comprised of expenses related to the daily operations from our consolidated properties. The increase in property operating expenses for the year ended December 31, 2007 is primarily due to a full year of hotel operations at Hotel Palomar and Residences and additional costs as a result of new leasing activity at 250/290 John Carpenter Freeway. We expect property operating expenses to remain relatively constant in the near future.
Asset Impairment. Asset impairment for the year ended December 31, 2007 was $2.4 million and was comprised of non-cash impairment charges related to our condominium inventory at Hotel Palomar and Residences and the Northwest Highway Land. There were no asset impairment charges for the year ended December 31, 2006.
During 2007, the housing market and related condominium sales experienced difficult conditions including high inventory levels, tightening of the credit market and weak consumer confidence. As a result of our evaluations and current economic conditions, we recognized a charge of $0.3 million for the year ended December 31, 2007 to reduce the carrying value of Northwest Highway Land, which contains developed land lots for future sale to luxury homebuilders, to its estimated fair value and a charge of $2.1 million for the year ended December 31, 2007 to reduce the carrying value of condominiums at Hotel Palomar and Residences. In the event that market conditions continue to decline in the future or the current difficult market conditions extend beyond our expectations, additional impairments may be necessary in the future.
Interest Expense. Interest expense for the years ended December 31, 2007 and 2006 was $10.3 million and $4.3 million, respectively, and was comprised of interest expense and amortization of deferred financing fees related to the notes
associated with the acquisition and development of our consolidated properties. The increase in interest expense for the year ended December 31, 2007 is primarily the result of interest expense no longer being capitalized for Hotel Palomar and Residences and Northwest Highway Land as a result of the completion of their development. Management expects interest expense to increase if we continue to use borrowings in the development of our properties and those properties become operational. Interest costs for the development of Cassidy Ridge will continue to be capitalized until development is complete. We currently have no plans to manage the operations of Cassidy Ridge when development is complete. For the year ended December 31, 2007, we capitalized interest costs of $0.6 million for Hotel Palomar and Residences, $0.1 million for Northwest Highway Land and $1.1 million for Cassidy Ridge. For the year ended December 31, 2006, we capitalized interest costs of $4.0 million for Hotel Palomar and Residences and $0.4 million each for Northwest Highway Land and Cassidy Ridge.
The U.S. credit markets have recently experienced volatility and as a result, there is greater uncertainty regarding our ability to access the credit markets in order to attract financing on reasonable terms. Our ability to borrow funds to finance future acquisitions or refinance current debt could be adversely affected by our inability to secure financing on favorable terms.
Real Estate Taxes. Real estate taxes for the years ended December 31, 2007 and 2006 were $3.8 million and $2.8 million, respectively, and were comprised of real estate taxes from each of our consolidated properties. The increase in real estate taxes for the year ended December 31, 2007 is primarily due to property taxes no longer being capitalized for Hotel Palomar and Residences and Northwest Highway Land as a result of the completion of their development. We expect real estate taxes to remain relatively constant in the near future.
Property and Asset Management Fees. Property and asset management fees for the years ended December 31, 2007 and 2006 were $1.1 million and $1.3 million, respectively, and were comprised of property management and asset management fees from our wholly-owned properties and our investments in partnerships that we consolidated. Asset management fees of approximately $0.9 million were waived by Behringer Advisors II for the year ended December 31, 2007. No asset management fees were waived for the year ended December 31, 2006. We expect property and asset management fees to increase in the near future.
Preopening Costs. Preopening costs for the year ended December 31, 2006 were $1.9 million. Preopening costs are expensed as incurred. Expenses incurred include payroll and payroll related expenses, outside services and other expenses related to the construction of Hotel Palomar and Residences. The hotel began operations in September 2006. Management does not expect additional preopening costs in the near future.
General and Administrative Expenses. General and administrative expenses for the years ended December 31, 2007 and 2006 were $0.9 million and $0.8 million, respectively. General and administrative expenses were comprised of auditing fees, transfer agent fees, tax preparation fees, directors’ and officers’ insurance premiums, legal fees, printing costs and other administrative expenses. Management expects future general and administrative expenses to remain relatively constant.
Advertising Costs. Advertising costs for the years ended December 31, 2007 were $2.4 million and were comprised primarily of advertising costs for Hotel Palomar and Residences. Advertising costs for the year ended December 31, 2006 were $0.2 million and were comprised of advertising costs for our consolidated properties. Management expects future advertising costs to decrease in the near future as a result of the completion of the development phase of Hotel Palomar and Residences.
Depreciation and Amortization Expense. Depreciation and amortization expense for the years ended December 31, 2007 and 2006 was $9.0 million and $9.7 million, respectively, and includes depreciation and amortization of buildings, furniture and equipment, and real estate intangibles associated with our wholly-owned properties and our investments in partnerships that we consolidated. The decrease in depreciation and amortization expense for the year ended December 31, 2007 is primarily a result of the write-off of intangibles in conjunction with the early termination of the single tenant’s lease at 250/290 John Carpenter Freeway during the year ended December 31, 2006. We expect depreciation and amortization expense to remain relatively constant in the near future.
Cost of Condominium Sales. Cost of condominium sales for the year ended December 31, 2007 was $7.9 million and was comprised of the costs associated with the sale of condominiums, including selling costs, located at Hotel Palomar and Residences. We began selling the condominiums during the first quarter of 2007. We expect costs from the sale of condominiums to continue as we sell additional condominium units.
Interest Income. Interest income for the years ended December 31, 2007 and 2006 was $0.4 million and $0.7 million, respectively, and was comprised primarily of interest income associated with funds on deposit with banks.
Minority Interest. Minority interest for the years ended December 31, 2007 and 2006 was $3.8 million and $1.2 million, respectively, and represents the other partners’ proportionate share of losses of investments in the four partnerships that we consolidated.
Forgiveness of Debt Income. Forgiveness of debt income for the year ended December 31, 2007 was $7.5 million and represents the principal and accrued interest forgiven on borrowings we received from a promissory note payable to Behringer Holdings, an affiliate of our General Partners. The maturity date of all borrowings under the note is November 9, 2010, and all proceeds from such borrowings are used for working capital purposes.
Discontinued Operations
Loss from Discontinued Operations. The loss from discontinued operations for the years ended December 31, 2007 and 2006 was approximately $2,000 and $0.5 million, respectively. Losses from discontinued operations, for the respective periods, represent the activity for the Woodall Rodgers Property, which was sold on July 24, 2006.
Gain on Sale of Discontinued Operations. We recognized a gain on the sale of discontinued operations for the year ended December 31, 2006 of $2.8 million. The gain was a result of the sale of the Woodall Rodgers Property on July 24, 2006. There were no sales of discontinued operations for the year ended December 31, 2007.
Fiscal year ended December 31, 2006 as compared to the fiscal year ended December 31, 2005
For the year ended December 31, 2006, we had seven wholly-owned properties and interests in four properties through investments in partnerships and joint ventures. All four investments in partnerships and joint ventures were consolidated with and into our accounts for the entire year ended December 31, 2006. At December 31, 2005, we had seven wholly-owned properties and interests in four properties through investments in partnerships and joint ventures. Two interests in properties and joint ventures became consolidated with and into our accounts during the year ended December 31, 2005. As a result, all four investments in partnerships and joint ventures were consolidated into our accounts at December 31, 2005. At January 1, 2005, our 85.71% interest in Plaza Skillman and our 50% interest in 4245 N. Central were accounted for under the equity method. On May 23, 2005, we purchased the remaining 14.29% interest in Plaza Skillman, resulting in our 100% direct ownership and consolidation of this property with and into our consolidated accounts subsequent to that date. We acquired an additional 6.25% interest in 4245 N. Central effective August 31, 2005 and an additional 6.25% on October 31, 2005, resulting in our 62.5% ownership and the consolidation of this property subsequent to October 31, 2005. We purchased 250/290 John Carpenter Freeway on April 4, 2005 and 18581 and 18451 North Dallas Parkway on July 6, 2005. We purchased Cassidy Ridge, which remains under development, on May 15, 2006. In addition, the single tenant at 250/290 John Carpenter Freeway terminated its lease effective June 30, 2006 and the boutique hotel portion of Hotel Palomar and Residences became operational in September 2006. The operations of the Woodall Rodgers Property, which was sold on July 24, 2006, is classified as discontinued operations in each of the periods presented in the accompanying consolidated statements of operations.
Continuing Operations
Rental Revenue. Rental revenue for the years ended December 31, 2006 and 2005 totaled $17.0 million and $11.5 million, respectively, and was comprised of revenue, including adjustments for straight-line rent and amortization of above - and below - market leases, from our wholly-owned properties and our investments in partnerships that we consolidated. The increase in revenue for the year ended December 31, 2006 was primarily a result of the increase in the number of consolidated properties and recognizing a full year of revenues from properties acquired during 2005.
Hotel Revenue. Hotel revenue for the year ended December 31, 2006 was $2.6 million and was comprised of revenue generated by the hotel at Hotel Palomar and Residences, which became operational in September 2006.
Property Operating Expenses. Property operating expenses for the years ended December 31, 2006 and 2005 were $6.0 million and $1.5 million, respectively. Property operating expenses for the years ended December 31, 2006 and 2005 were comprised of expenses related to the daily operations from our wholly-owned properties and our investments in partnerships that we consolidated. The increase in property operating expenses for the year ended December 31, 2006 was primarily due to the commencement of hotel operations at Hotel Palomar and Residences, the increase in the number of consolidated properties and recognizing a full year of operations from properties acquired during 2005.
Interest Expense. Interest expense for the years ended December 31, 2006 and 2005 was $4.3 million and $1.6 million, respectively, and was comprised of interest expense and amortization of deferred financing fees related to the notes payable associated with the acquisition and development of our wholly-owned properties and our investments in partnerships. Interest continued to be capitalized until the remaining development of Hotel Palomar and Residences, Northwest Highway Land and Cassidy Ridge was completed. Cassidy Ridge continues to be under development. We contracted with unaffiliated third parties to manage the daily operations when we completed development of these properties. For the year ended December 31, 2006, we capitalized interest costs of $4.0 million for Hotel Palomar and Residences and $0.4 million each for Northwest Highway Land and Cassidy Ridge. For the year ended December 31, 2005, we capitalized interest costs of $1.5 million for Hotel Palomar and Residences and $0.3 million for Northwest Highway Land.
Real Estate Taxes. Real estate taxes for the years ended December 31, 2006 and 2005 were $2.8 million and $1.8 million, respectively, and were comprised of real estate taxes associated with our wholly-owned properties and our
investments in partnerships that we consolidated. The increase in real estate taxes for the year ended December 31, 2006 was primarily due to the increase in the number of consolidated properties and the recognition of a full year of operations from properties acquired during 2005.
Property and Asset Management Fees. Property and asset management fees for the years ended December 31, 2006 and 2005 were $1.3 million and $0.7 million, respectively, and were comprised of property management and asset management fees from our wholly-owned properties and our investments in partnerships that we consolidated. The increase in property and asset management fees for the year ended December 31, 2006 was primarily due to the increase in the number of consolidated properties and recognizing a full year of operations from properties acquired during 2005.
Preopening Costs. Preopening costs for the year ended December 31, 2006 were $1.9 million. Preopening costs are expensed as incurred. Expenses incurred include payroll and payroll related expenses, outside services and other expenses related to the construction of the hotel at Hotel Palomar and Residences. The hotel became operational in September 2006. There were no preopening costs during the year ended December 31, 2005.
General and Administrative Expenses. General and administrative expenses for the years ended December 31, 2006 and 2005 were $0.8 million each. General and administrative expenses were comprised of auditing fees, transfer agent fees, printing costs, legal fees, tax preparation fees, directors’ and officers’ insurance premiums and other administrative expenses.
Advertising Costs. Advertising costs for the year ended December 31, 2006 were $0.2 million and were comprised of advertising costs for our consolidated properties. There were no advertising costs for the year ended December 31, 2005.
Depreciation and Amortization Expense. Depreciation and amortization expense for the years ended December 31, 2006 and 2005 was $9.7 million and $6.9 million, respectively, and includes depreciation and amortization of buildings, furniture and equipment, and real estate intangibles associated with our wholly-owned properties and our investments in partnerships that we consolidated. The increase in depreciation and amortization expense for the year ended December 31, 2006 was primarily due to the commencement of hotel operations at Hotel Palomar and Residences, the increase in the number of consolidated properties and recognizing a full year of operations from properties acquired during 2005.
Interest Income. Interest income for the years ended December 31, 2006 and 2005 was $0.7 million each and was comprised primarily of interest income associated with funds on deposit with banks.
Equity in Losses of Investments in Unconsolidated Joint Ventures. Equity in losses of investments in unconsolidated joint ventures for the year ended December 31, 2005 was $0.8 million and was comprised of our share of equity in the losses of 4245 N. Central and Plaza Skillman. We acquired the remaining 14.29% interest in Plaza Skillman on May 23, 2005 and subsequent to that date, Plaza Skillman has been consolidated with and into our consolidated accounts. We also acquired two additional 6.25% interests in 4245 N. Central effective August 31, 2005 and October 31, 2005, respectively, resulting in our total interest in the property of 62.5% at December 31, 2005. As a result, subsequent to October 31, 2005, 4245 N. Central has been consolidated with and into our consolidated accounts.
Gain on Sale of Assets. We recognized a gain on the sale of assets for the year ended December 31, 2005 of $1.1 million. The gain was a result of the sale of the undeveloped land located on the Woodall Rodgers Property on April 6, 2005. The gain on sale of assets sold during the year ended December 31, 2006 is reflected in the gain on sale of discontinued operations.
Minority Interest. Minority interest for the years ended December 31, 2006 and 2005 was $1.2 million and $0.1 million, respectively, and represents the other partners’ proportionate share of losses of investments in the four partnerships that we consolidated.
Discontinued Operations
Loss from Discontinued Operations. The loss from discontinued operations for the years ended December 31, 2006 and 2005 was $0.5 million and $0.3 million, respectively. Losses from discontinued operations, for the respective periods, represent the activity for the Woodall Rodgers Property, which was sold on July 24, 2006.
Gain on Sale of Discontinued Operations. We recognized a gain on the sale of discontinued operations for the year ended December 31, 2006 of $2.8 million. The gain was a result of the sale of the Woodall Rodgers Property on July 24, 2006. There were no sales of discontinued operations for the year ended December 31, 2005.
Cash Flow Analysis
As of December 31, 2007, 2006 and 2005 we wholly-owned seven properties and owned interests in four properties through investments in partnerships and joint ventures. We sold condominiums at Hotel Palomar and Residences and completed construction development of the Northwest Highway Land during the year ended December 31, 2007. We sold the operations of the Woodall Rodgers Property on July 24, 2006 and purchased Cassidy Ridge, which is currently under development, on May 15, 2006. The single tenant at 250/290 John Carpenter Freeway terminated its lease effective June 30, 2006 and the boutique hotel at Hotel Palomar and Residences became operational in September 2006. We purchased
250/290 John Carpenter Freeway on April 4, 2005 and 18581 and 18451 North Dallas Parkway on July 6, 2005. As a result, certain items of our cash flows for the years ended December 31, 2007, 2006 and 2005 may be significantly different.
Fiscal year ended December 31, 2007 as compared to the fiscal year ended December 31, 2006
Cash used in operating activities for the year ended December 31, 2007 was $16.0 million and was comprised primarily of the net loss of $5.9 million, adjusted for depreciation and amortization of $10.8 million, forgiveness of debt income of $7.5 million and changes in working capital accounts of $8.8 million. Cash provided by operating activities for the year ended December 31, 2006 was $7.0 million and was comprised primarily of the net loss of $3.1 million, the gain on sale of discontinued operations of $2.8 million and minority interest of $1.2 million, offset primarily by the adjustments for depreciation and amortization of $12.0 million and changes in working capital accounts of $2.6 million.
Cash used in investing activities for the year ended December 31, 2007 was $14.2 million and was primarily comprised of capital expenditures for real estate of $13.4 million. Cash used in investing activities for the year ended December 31, 2006 was $49.4 million and was primarily comprised of capital expenditures for real estate of $52.7 million and purchases of properties under development of $7.1 million, partially offset by $9.8 million in proceeds from the sale of discontinued operations.
Cash provided by financing activities was $14.2 million in 2007 versus $47.5 million in 2006. For the year ended December 31, 2007, cash flows from financing activities consisted primarily of proceeds from notes payable, net of payments, of $17.9 million, partially offset by $3.1 million of distributions to our limited partners. For the year ended December 31, 2006, cash flows from financing activities consisted primarily of proceeds from notes payable obtained in the acquisition and development of properties, net of payments of $57.0 million, partially offset by $8.2 million of distributions to our limited partners.
Fiscal year ended December 31, 2006 as compared to the fiscal year ended December 31, 2005
Cash provided by operating activities for the year ended December 31, 2006 was $7.0 million and was comprised primarily of the net loss of $3.1 million, the gain on sale of discontinued operations of $2.8 million and minority interest of $1.2 million, offset primarily by the adjustments for depreciation and amortization of $12.0 million and changes in working capital accounts of $2.6 million. Cash provided by operating activities for the year ended December 31, 2005 was $4.5 million and was comprised primarily of the net loss of $1.1 million, changes in working capital accounts of $2.4 million and the adjustment for the gain on sale of assets of $1.1 million, offset primarily by the adjustments for depreciation and amortization expense of $8.8 million and equity in losses of investments in joint ventures of $0.8 million.
Cash used in investing activities for the year ended December 31, 2006 was $49.4 million and was primarily comprised of capital expenditures for real estate of $52.7 million and purchases of properties under development of $7.1 million, partially offset by $9.8 million in proceeds from the sale of discontinued operations. Cash used in investing activities for the year ended December 31, 2005 was $90.7 million and was primarily comprised of purchases of real estate of $67.6 million, capital expenditures for real estate of $19.5 million and purchases of properties under development of $4.7 million.
Cash provided by financing activities was $47.5 million in 2006 versus $65.4 million in 2005. For the year ended December 31, 2006, cash flows from financing activities consisted primarily of proceeds from notes payable obtained in the acquisition and development of properties, net of payments, of $57.0 million, partially offset by $8.2 million of distributions to our limited partners. For the year ended December 31, 2005, cash flows from financing activities consisted primarily of proceeds from notes payable obtained in the acquisition and development of properties, net of payments of $30.8 million and proceeds from the sale of limited partnership units, net of offering costs and redemptions of $35.2 million.
Liquidity and Capital Resources
Our cash and cash equivalents were $4.9 million and $20.8 million at December 31, 2007 and 2006, respectively. The decrease in cash in 2007 is primarily due to cash used in the operation of our properties and for capital expenditures.
Our principal demands for funds will be for the payment of operating expenses and distributions and for the payment of our outstanding indebtedness. Generally, these cash needs are expected to be met from operations and borrowings.
The timing and amount of cash to be distributed to our limited partners is determined by our General Partners and is dependent on a number of factors, including funds available for payment of distributions, financial condition and capital expenditures. There can be no assurance that future cash flow will support distributions at the current rate. We expect to continue to distribute net cash from operations and nonliquidating sales of properties to limited partners. However, our General Partners, in their discretion, may defer fees payable by us to our General Partners, allowing for more cash to be available to us for distribution to our limited partners. In addition, our General Partners may make supplemental payments to us or to our limited partners, or otherwise support our operations to the extent not prohibited under the North American Securities Administrators Association Guidelines for Real Estate Programs, which would permit distributions to our limited
partners in excess of net cash from operations. Accordingly, all or some of such distributions may constitute a return of capital to our limited partners to the extent that distributions exceed net cash from operations, or may be recognized as taxable income to our limited partners or us.
We expect to meet our future short-term operating liquidity requirements through net cash provided by the operations of current properties and additional borrowings. Management also expects that our properties will generate sufficient cash flow, together with such borrowings, to cover operating expenses and the payment of a monthly distribution. Some or all of our distributions have been paid from sources other than operating cash flow, such as cash advanced to us by, or waiver of fees from, our advisor and proceeds from loans including those secured by our assets. Other potential future sources of capital include proceeds from secured or unsecured financings from banks or other lenders, proceeds from the sale of properties and undistributed funds from operations. If necessary, we may use financings or other sources of capital in the event of unforeseen significant capital expenditures.
On January 10, 2007, our 30% minority partner entered into an agreement to loan Behringer Harvard Mockingbird Commons, LLC (the “Mockingbird Commons Partnership”) $0.3 million. The loan, funded on January 24, 2007, is unsecured, bears interest at the rate of 10% per annum and the principal amount of the loan and all accrued interest was due and payable in full on or before January 1, 2008. The maturity date of the note was subsequently extended to January 1, 2009. The minority partner also loaned the Mockingbird Commons Partnership $0.2 million on October 9, 2007. The loan has an interest rate of 9.5% per annum and the principal amount and all accrued interest is due and payable in full on or before October 9, 2008. On November 13, 2007, the minority interest partner loaned the Mockingbird Commons Partnership an additional $0.3 million at 9% interest per annum with all accrued interest and unpaid principal due on or before November 13, 2008.
On April 20, 2007, our direct and indirect subsidiary, Behringer Harvard Northwest Highway LP (the “Northwest Highway Partnership”) extended its loan agreement with The Frost National Bank (the “Northwest Highway Land Loan”) that was set to mature on that same date. Under the extension, monthly payments of interest were required. Additionally, quarterly payments of principal in the amount of $0.9 million were due beginning July 19, 2007. The Northwest Highway Partnership originally entered into the Northwest Highway Land Loan on April 20, 2005. Funds from the loan were used to develop land into high-end residential lots for the future sale to luxury home builders. We were subject to a guaranty agreement with The Frost National Bank in which we guaranteed prompt and full repayment of any borrowings. Under the guaranty agreement, we guaranteed, among other things, payment of the borrowings in the event that the Northwest Highway Partnership became insolvent or entered into bankruptcy proceedings.
On July 16, 2007, the Northwest Highway Partnership entered into a loan agreement with Citibank, N.A. to borrow up to $4.5 million. Proceeds from the loan were used to completely pay down the Northwest Highway Land Loan with The Frost National Bank. The interest rate under the loan agreement is the 30-day LIBOR rate plus 2.25% per annum. The maturity date of the loan is July 15, 2009, with two options to extend for six months each. Payments of interest only are due monthly with a principal payment of $0.2 million due on June 30, 2008 and additional principal payments due upon sales of the residential lots, with the remaining balance due and payable on the maturity date. We are subject to a guaranty agreement with Citibank, N.A. in which we guarantee prompt and full repayment of any borrowings. Under the guaranty agreement, we guarantee, among other things, payment of the borrowings in the event that the Northwest Highway Partnership becomes insolvent or enters into bankruptcy proceedings.
On July 1, 2007, Behringer Harvard Quorum I LP, our direct and indirect subsidiary, extended the maturity date of the 5050 Quorum Loan with Citibank, N.A., which was originally set to mature on July 1, 2007, to July 1, 2008. Under the loan agreement, the borrower has the option to elect the interest rate at the prime rate or LIBOR plus 2%, with interest being calculated on the unpaid principal. Payments of interest only are due and payable monthly with all unpaid principal and accrued unpaid interest due and payable on the maturity date.
On January 28, 2008, Behringer Harvard Quorum I LP entered into a loan agreement with Sterling Bank. Borrowings under the loan agreement were $10 million. Approximately $5.1 million of the loan proceeds were used to pay off the loan to the borrower from Citibank, N.A., which was set to mature on July 1, 2008. The remaining proceeds will be used for working capital purposes. The interest rate under the loan is 7%. Monthly payments of interest only are due beginning March 5, 2008. The entire principal balance, together with all accrued, but unpaid interest is due and payable on January 23, 2011, the maturity date. The loan is guaranteed by us and the borrower.
On August 17, 2007, our direct and indirect subsidiary, Behringer Harvard 4245 Central, LP, extended the 4245 N. Central Loan with Bank of America, N.A. which was set to mature on that same date, to August 17, 2009. Under the loan agreement, the borrower has the option to elect the interest rate at the prime rate or LIBOR plus 1.9%, with interest being calculated on the unpaid principal. Monthly payments of principal and interest are due and payable monthly with all unpaid principal and accrued unpaid interest due and payable on the maturity date.
On September 6, 2007, Behringer Harvard Mockingbird Commons, LLC, an entity in which we have a 70% direct and indirect ownership interest, entered into a loan agreement (the “Hotel Palomar and Residences Bank of America Loan Agreement”) with Bank of America, N.A. Borrowings under the loan agreement may total up to $42 million. The loan agreement is further evidenced by a deed of trust note from the borrower for the benefit of the lender. Under the loan agreement, the borrower has the option to elect the interest rate at the Bank of America Prime Rate or LIBOR plus 1.75%, with interest being calculated on the unpaid principal. Monthly payments of unpaid accrued interest are due through September 1, 2010. A final payment of the unpaid principal and accrued interest is due and payable on September 6, 2010, the maturity date. The borrower may extend the maturity date of the loan agreement, subject to certain conditions, for two
periods of twelve months each. Prepayment of principal can be made, in whole or in part, without penalty or premium, at any time, subject to certain conditions, but accrued interest would be payable through the date of prepayment. Approximately $34 million of the initial loan proceeds were used to pay off a loan to the borrower from American National Bank, which was used to redevelop Hotel Palomar and Residences. The remaining initial loan proceeds of approximately $7.4 million and the remaining borrowings available under the loan agreement were used for working capital purposes at Hotel Palomar and Residences. In addition, we have guaranteed payment of the obligation under the loan agreement in the event that, among other things, the borrower becomes insolvent or enters into bankruptcy proceedings.
On September 26, 2007, our direct and indirect subsidiary, Behringer Harvard 1221 Coit LP, extended the 1221 Coit Road Loan with Washington Mutual Bank, which was set to mature on October 4, 2007, to December 4, 2007. On December 4, 2007, we extended the loan with all unpaid principal and unpaid interest due and payable on December 4, 2008.
On September 29, 2007, our direct subsidiary, BHDGI, Ltd. (the “Melissa Land Partnership”), extended the Melissa Land Loan with Dallas City Bank. The loan, which was set to expire on that same date, was extended to September 29, 2008. Accrued but unpaid interest is payable on March 29, 2008 and June 29, 2008. All accrued but unpaid interest and the outstanding principal balance is due on September 29, 2008.
On October 1, 2007, the Mockingbird Commons Partnership extended the maturity date of the Hotel Palomar and Residences Texans Loan, which was originally set to mature on that same date. Monthly payments of interest only are due through September 1, 2008. All accrued but unpaid interest and the outstanding principal balance is due and payable on October 1, 2008.
On November 9, 2007, we entered into a promissory note payable to Behringer Holdings (“BHH Loan”), an affiliate of our General Partners, pursuant to which we may borrow a total principal amount of $10 million. The interest rate under the BHH Loan is 5% per annum, with the accrued and unpaid amount of interest payable until the principal amount of each advance under the BHH Loan is paid in full. We borrowed a total of $7.5 million under the BHH Loan during the year ended December 31, 2007. The maturity date of all borrowings under the BHH Loan was to be November 9, 2010, and all proceeds from such borrowings will be used for working capital purposes. On December 31, 2007, Behringer Holdings forgave all $7.5 million of the borrowings and all interest accrued thereon. As a result, there were no borrowings outstanding under the BHH Loan as of December 31, 2007.
On March 27, 2008, we entered into the Amended and Restated Unsecured Promissory Note payable to Behringer Holdings (“Amended BHH Loan”), pursuant to which we may borrow a maximum of $20 million. We borrowed $1.0 million under the Amended BHH Loan on that same date, and we had borrowed $1.0 million on February, 14, 2008 resulting in $2.0 million principal amount outstanding under the note at March 27, 2008. This note amends and restates the BHH Loan. All amounts borrowed under the BHH Loan shall be deemed borrowed under the Amended BHH Loan. The Amended BHH Loan is unsecured and bears interest at a rate of 5% per annum, with the accrued and unpaid amount of interest payable until the principal amount of each advance under the note is paid in full. The maturity date of all borrowings under the Amended BHH Loan is March 27, 2011, and all proceeds from such borrowings will be used for working capital purposes.
As of December 31, 2007, $53.9 million of the outstanding balance of our notes payable of $145.6 million is due within the next twelve months. Of that amount, $51.1 million of the notes payable agreements contain a provision to extend the maturity date for at least one additional year if certain conditions are met. We expect to use cash flows from operations and proceeds from the disposition of properties to continue making our scheduled debt service payments until the maturity dates of the loans are extended, the loans are refinanced, or the outstanding balance of the loans are completely paid off. There is no guaranty that we will be able to refinance our borrowings with more or less favorable terms or extend the maturity dates of such loans.
Recently, the U.S. credit markets and the sub-prime residential mortgage market have experienced severe dislocations and liquidity disruptions. Sub-prime mortgage loans have experienced increasing rates of delinquency, foreclosure and loss. These and other related events have had a significant impact on the capital markets associated not only with sub-prime mortgage-backed securities, asset-backed securities and collateralized debt obligations, but also with the U.S. credit and financial markets as a whole. Consequently, there is greater uncertainty regarding our ability to access the credit market in order to attract financing on reasonable terms. Our ability to borrow funds to finance future acquisitions or refinance current debt could be adversely affected by our inability to secure permanent financing on reasonable terms, if at all.
Generally, our notes payable mature approximately three to five years from origination. Most of our borrowings are on a recourse basis to us, meaning that the liability for repayment is not limited to any particular asset. The majority of our notes payable require payments of interest only, with all unpaid principal and interest due at maturity. Our loan agreements stipulate that we comply with certain reporting and financial covenants. These covenants include, among other things, notifying the lender of any change in management and maintaining minimum debt service coverage. At December 31, 2007, we were in compliance with each of the debt covenants under our loan agreements.
Net Operating Income
Net operating income (“NOI”) is a non-GAAP financial measure that is defined as net income (loss), computed in accordance with GAAP, generated from properties before interest expense, asset management fees, interest income, general and administrative expenses, depreciation, amortization, minority interest, income taxes, forgiveness of debt income, the gain or loss on the sale of assets and non-cash impairment charges. We believe that NOI provides an accurate measure of the operating performance of our operating assets because NOI excludes certain items that are not associated with management of the properties. To facilitate understanding of this financial measure, a reconciliation of NOI to net income (loss) in accordance with GAAP has been provided. Our calculations of NOI for the years ended December 31, 2007, 2006 and 2005 are presented below (in thousands).
Performance Reporting Required by the Partnership Agreement
Section 15.2 in our Partnership Agreement requires us to provide our limited partners with our net cash from operations, a non-GAAP financial measure, which is defined as net income, computed in accordance with GAAP, plus depreciation and amortization on real estate assets, adjustments for gains from the sale of assets and gains on the sale of discontinued operations, debt service and capital improvements (“Net Cash From Operations”). Our calculations of Net Cash From Operations for the years ended December 31, 2007 and 2006 are presented below (in thousands):
(1) This represents our ownership portion of the properties that we consolidate.
(2) Amounts for 2007 include building improvements, tenant improvements and furniture and fixtures. Amounts for 2006 include building improvements, tenant improvements, furniture and fixtures and construction of condominiums and other costs related to development of our properties.
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements that are reasonably likely to have a current or future material effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.
Contractual Obligations
The following table sets forth certain information concerning our contractual obligations and commercial commitments as of December 31, 2007, and outlines expected future payments to be made under such obligations and commitments (in thousands):
(1) Excludes unamortized premium of $0.4 million.
New Accounting Pronouncements
In September 2006, the Financial Accounting Standards Board (“FASB”) issued SFAS No. 157, “Fair Value Measurements.” SFAS No. 157 establishes a single authoritative definition of fair value, sets out a framework for measuring fair value, and requires additional disclosures about fair value measurements. SFAS No. 157 applies only to fair value measurements that are already required or permitted by other accounting standards. SFAS No. 157 is effective for fiscal years beginning after November 15, 2007. We are in the process of determining the effect the adoption of SFAS No. 157 will have on our financial statements.
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.” The fair value option established by SFAS No. 159 permits all entities to choose to measure eligible items at fair value at specified election dates. A business entity will report unrealized gains and losses on items for which the fair value option has been elected in earnings (or another performance indicator if the business entity does not report earnings) at each subsequent reporting date. SFAS No. 159 is effective for fiscal years beginning after November 15, 2007. We have not elected the fair value measurement option for any financial assets or liabilities at the present time.
In December 2007, the FASB issued SFAS No. 141(R), “Business Combinations.” This Statement replaces SFAS No. 141 “Business Combinations” but retains the fundamental requirement that the acquisition method of accounting, or purchase method, be used for all business combinations and for an acquirer to be identified for each business combination. This Statement is broader in scope than that of Statement 141, which applied only to business combinations in which control was obtained by transferring consideration. SFAS 141R applies the same method of accounting (the acquisition method) to all transactions and other events in which one entity obtains control over one or more other businesses. This Statement also makes certain other modifications to Statement 141, including a broader definition of a business and the requirement that acquisition related costs are expensed as incurred. This Statement applies to business combinations occurring on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. Early adoption is not allowed. We are currently assessing the effect SFAS No. 141(R) may have on our consolidated results of operations and financial position.
In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements - An amendment of ARB No. 51.” This Statement amends ARB 51 to establish accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. It clarifies that a noncontrolling interest in a subsidiary, which is sometimes referred to as minority interest, is an ownership interest in the consolidated entity that should be reported as equity in the consolidated financial statements. Among other requirements, this Statement requires consolidated net income to be reported at amounts that include the amounts attributable to both the parent and the noncontrolling interest. It also requires disclosure, on the face of the consolidated income statement, of the amounts of consolidated net income attributable to the parent and to the noncontrolling interest. This Statement is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2008 (that is, January 1, 2009, for entities with calendar year-ends). Earlier adoption is prohibited.
Inflation
The real estate market has not been affected significantly by inflation in the past several years due to the relatively low inflation rate. The majority of our leases contain inflation protection provisions applicable to reimbursement billings for common area maintenance charges, real estate tax and insurance reimbursements on a per square foot basis, or in some cases, annual reimbursement of operating expenses above a certain per square foot allowance.
Item 7A.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
We may be exposed to interest rate changes primarily as a result of long-term debt used to acquire and develop properties, make loans and make other permitted investments. Our management’s objectives, with regard to interest rate risks, are to limit the impact of interest rate changes on earnings and cash flows and to lower overall borrowing costs. To achieve these objectives, we borrow primarily at fixed rates or variable rates with the lowest margins available and in some cases, with the ability to convert variable rates to fixed rates. With regard to variable rate financing, we will assess interest rate cash flow
risk by continually identifying and monitoring changes in interest rate exposures that may adversely impact expected future cash flows and by evaluating hedging opportunities. We may enter into derivative financial instruments such as options, forwards, interest rate swaps, caps or floors to mitigate our interest rate risk on a related financial instrument or to effectively lock the interest rate portion of our variable rate debt. Of our approximately $145.6 million in notes payable at December 31, 2007, approximately $134.7 million represented debt subject to variable interest rates. If our variable interest rates increased 100 basis points, excluding the $38.0 million of debt effectively fixed by an interest rate swap agreement, we estimate that total annual interest expense would increase by approximately $1.0 million.
A 100 basis point decrease in interest rates would result in a $0.6 million net decrease in the fair value of our interest rate swap. A 100 basis point increase in interest rates would result in a $0.6 million net increase in the fair value of our interest rate swap
At December 31, 2007, we did not have any foreign operations and thus were not exposed to foreign currency fluctuations.
Item 8.
Item 8. Financial Statements and Supplementary Data.
The information required by this Item 8 is hereby incorporated by reference to our Financial Statements beginning on page of this Annual Report on Form 10-K.
Item 9.
Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.
None.
Item 9A(T).
Item 9A(T). Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
As required by Rule 13a-15(b) and Rule 15d-15(b) under the Exchange Act, the management of Behringer Advisors II, our general partner, including the Chief Executive Officer and Chief Financial Officer of our general partner, evaluated as of December 31, 2007 the effectiveness of our disclosure controls and procedures as defined in Exchange Act Rule 13a-15(e) and Rule 15d-15(e). Based on that evaluation, the Chief Executive Officer and Chief Financial Officer of Behringer Advisors II, our general partner, concluded that our disclosure controls and procedures, as of December 31, 2007, were effective for the purpose of ensuring that information required to be disclosed by us in this report is recorded, processed, summarized and reported within the time periods specified by the rules and forms of the Exchange Act and is accumulated and communicated to management, including the Chief Executive Officer and Chief Financial Officer of Behringer Advisors II, as appropriate to allow timely decisions regarding required disclosures.
We believe, however, that a controls system, no matter how well designed and operated, cannot provide absolute assurance that the objectives of the controls systems are met, and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud or error, if any, within a partnership have been detected.
Management’s Annual Report on Internal Control over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)). Our management, including the Chief Executive Officer and Chief Financial Officer of Behringer Advisors II, evaluated as of December 31, 2007 the effectiveness of our internal control over financial reporting using the framework in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer of Behringer Advisors II concluded that our internal controls, as of December 31, 2007, were effective in providing reasonable assurance regarding reliability of financial reporting.
This annual report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Partnership’s registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Partnership to provide only management’s report in this annual report.
Changes in Internal Control over Financial Reporting
There has been no change in internal control over financial reporting that occurred during the quarter ended December 31, 2007 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B.
Item 9B. Other Information.
None.
PART III
Item 10.
Item 10. Directors, Executive Officers and Corporate Governance.
The General Partners
We operate under the direction of our General Partners, which are responsible for the management and control of our affairs. The General Partners are assisted by the employees of HPT, the general partner of Behringer Advisors II. In addition, the General Partners are advised by an advisory board comprised of industry professionals. We do not employ our own management personnel; rather we pay fees to our General Partners for their services to us.
The General Partners are responsible for our direction and management, including acquisition, construction and property management. Any action required to be taken by the General Partners will be taken only if it is approved, in writing or otherwise, by both General Partners, unless the General Partners agree between themselves to a different arrangement for the approval of actions by the General Partners.
The General Partners are Behringer Advisors II and Mr. Behringer, individually. Behringer Advisors II is a Texas limited partnership formed in July 2002. The executive office of both General Partners is located at 15601 Dallas Parkway, Suite 600, Addison, Texas 75001. Behringer Advisors II is owned by HPT, its sole general partner, and Behringer Harvard Partners, LLC (“Behringer Partners”), its sole limited partner. Behringer Holdings is the sole owner of HPT and Behringer Partners. Mr. Behringer is the President and sole manager of each of these companies. Mr. Behringer is the founder, Chief Executive Officer and sole manager of Behringer Holdings. Behringer Holdings also is the indirect owner of HPT Management, our property manager, Behringer Development, a real estate development company, and Behringer Securities, our dealer manager.
Behringer Advisors II was created in 2002 for the sole purpose of acting as one of our General Partners. It is managed by its executive officers, namely:
Robert M. Behringer is the Chief Executive Officer and Chief Investment Officer of Behringer Advisors II. He is also the Chief Executive Officer, Chief Investment Officer and Chairman of the Board of Behringer Harvard REIT I, Behringer Harvard Opportunity REIT I, and Behringer Harvard Opportunity REIT II, all publicly registered real estate investment trusts. He is also the founder, sole manager and Chief Executive Officer of Behringer Holdings, the parent of Behringer Advisors II. Since 2002, Mr. Behringer has been a general partner of ours and Behringer Harvard Mid-Term Value Enhancement Fund I, each a publicly registered real estate limited partnership. Mr. Behringer also controls the general partner of Behringer Harvard Strategic Opportunity Fund I LP and Behringer Harvard Strategic Opportunity Fund II LP, private real estate limited partnerships. Since 2001, Mr. Behringer has also been the Chief Executive Officer of the other Behringer Harvard companies.
From 1995 until 2001, Mr. Behringer was Chief Executive Officer of Harvard Property Trust, Inc., a privately held REIT formed by Mr. Behringer that has been liquidated and that had a net asset value of approximately $200 million before its liquidation. Before forming Harvard Property Trust, Inc., Mr. Behringer invested in commercial real estate as Behringer Partners, a sole proprietorship formed in 1989 that invested in single asset limited partnerships. From 1985 until 1993, Mr. Behringer was Vice President and Investment Officer of Equitable Real Estate Investment Management, Inc. (now known as Lend Lease Real Estate Investments, Inc.), one of the largest pension fund advisors and owners of real estate in the United States. While at Equitable, Mr. Behringer was responsible for its General Account Real Estate Assets located in the south central United States. The portfolio included institutional quality office, industrial, retail, apartment and hotel properties exceeding 17 million square feet with a value of approximately $2.8 billion. Although Mr. Behringer was a significant participant in acquisitions, management, leasing, redevelopment and dispositions, his primary responsibility was to increase net operating income and the overall value of the portfolio.
Mr. Behringer has over 25 years of experience in real estate investment, management and finance activities, including approximately 140 different properties with over 24 million square feet of office, retail, industrial, apartment, hotel
and recreational properties. Since the founding of the Behringer Harvard organization, Mr. Behringer’s experience includes an additional 127 properties, with over 29 million square feet of office, retail, industrial, apartment, hotel and recreational properties. In addition to being the Chief Executive Officer and Chief Investment Officer of Behringer Advisors II, he is currently the general partner or a co-general partner in several real estate limited partnerships formed for the purpose of acquiring, developing and operating office buildings and other commercial properties. Mr. Behringer is a Certified Property Manager, Real Property Administrator, Certified Hotel Administrator and Texas Real Estate Broker, holds FINRA Series 7, 24 and 63 registrations and is a member of the Institute of Real Estate Management, the Building Owners and Managers Association, the Urban Land Institute and the Real Estate Council. Mr. Behringer also was a licensed certified public accountant for over 20 years. Mr. Behringer received a Bachelor of Science degree from the University of Minnesota.
Robert S. Aisner is the President of Behringer Advisors II. He is also President, Chief Operating Officer and a director of Behringer Harvard REIT I, Behringer Harvard Opportunity REIT I, and Behringer Harvard Opportunity REIT II, all publicly registered real estate investment trusts, and President of the other Behringer Harvard companies. Mr. Aisner has over 30 years of commercial real estate experience. From 1996 until joining Behringer Harvard REIT I, in 2003, Mr. Aisner served as (1) Executive Vice President of AMLI Residential Properties Trust, formerly a New York Stock Exchange listed REIT that focused on the development, acquisition and management of upscale apartment communities and served as institutional advisor and asset manager for institutional investors with respect to their multifamily real estate investment activities, (2) President of AMLI Management Company, which oversees all of AMLI’s apartment operations in 80 communities, (3) President of the AMLI Corporate Homes division that manages AMLI’s corporate housing properties, (4) Vice President of AMLI Residential Construction, a division of AMLI that performs real estate construction services, and (5) Vice President of AMLI Institutional Advisors, the AMLI division that serves as institutional advisor and asset manager for institutional investors with respect to their multifamily real estate activities. Mr. Aisner also served on AMLI’s Executive Committee and Investment Committee from 1999 until 2003. From 1994 until 1996, Mr. Aisner owned and operated Regents Management, Inc., which had both a multifamily development and construction group, and a general commercial property management company. From 1984 to 1994, he was employed by HRW Resources, Inc., a real estate development and management company, where he served as Vice President.
Mr. Aisner served as an independent director of Behringer Harvard REIT I, from June 2002 until February 2003 and as a management director from June 2003 until the present. Mr. Aisner received a Bachelor of Arts degree from Colby College and a Masters of Business Administration degree from the University of New Hampshire.
Gerald J. Reihsen, III serves as the Executive Vice President - Corporate Development & Legal and Secretary of Behringer Advisors II. Since 2001, Mr. Reihsen has served in this and similar executive capacities with the other Behringer Harvard companies, including serving as President of Behringer Securities.
For over 20 years, Mr. Reihsen’s business and legal background has centered on sophisticated financial and transactional matters, including commercial real estate transactions, real estate partnerships, and public and private securities offerings. For the period from 1985 to 2000, Mr. Reihsen practiced as an outside corporate securities attorney. After serving from 1986 to 1995 in the corporate department of Gibson, Dunn & Crutcher, a leading international commercial law firm, Mr. Reihsen established his own firm, Travis & Reihsen, where he served as a corporate/securities partner until 1998. In 1998, Mr. Reihsen became the lead partner in the corporate/securities section of the law firm Novakov Davis, where he served until 2000. In 2000, he practiced law as a principal of Block & Balestri, a corporate and securities law firm. In 2000 and 2001, Mr. Reihsen was employed as the Vice President - Corporate Development and Legal of Xybridge Technologies, Inc., a telecommunications software company that Mr. Reihsen helped guide through venture funding, strategic alliances with international telecommunications leaders and its ultimate sale to Zhone Technologies, Inc. Mr. Reihsen holds FINRA Series 7, 24, 27 and 63 registrations. Mr. Reihsen received a Bachelor of Arts degree, magna cum laude, from the University of Mississippi and a Juris Doctorate degree, cum laude, from the University of Wisconsin.
Gary S. Bresky is the Chief Financial Officer of Behringer Advisors II. Mr. Bresky is also the Chief Financial Officer of all of the other Behringer Harvard companies.
Mr. Bresky has been active in commercial real estate and related financial activities for over 15 years. Prior to his employment with Behringer Advisors II, Mr. Bresky served, from 1997 to 2001, as a Senior Vice President of Finance with Harvard Property Trust, Inc. In this capacity, Mr. Bresky was responsible for directing all accounting and financial reporting functions and overseeing all treasury management and banking functions for the company. Mr. Bresky was also integral in analyzing deal and capital structures as well as participating in all major decisions related to any acquisition or sale of assets.
From 1995 until 1996, Mr. Bresky worked in the Real Estate Group at Coopers & Lybrand LLP in Dallas, Texas, where he focused on finance and accounting for both public and private real estate investment trusts. His experience included conducting annual audits, preparing quarterly and annual public securities reporting compliance filings and public real estate securities registration statements for his clients. From 1989 to 1994, Mr. Bresky worked with Ten West Associates, LTD and Westwood Financial Corporation in Los Angeles, California as a real estate analyst and asset manager for two commercial real estate portfolios totaling in excess of $185 million. From 1988 until 1989, Mr. Bresky worked as an
analysts’ assistant for both Shearson-Lehman Bros., Inc. and Hambrecht and Quist Inc. assisting brokers in portfolio management. Mr. Bresky holds FINRA Series 7, 24, 27 and 63 registrations. Mr. Bresky received a Bachelor of Arts degree from the University of California - Berkeley and a Masters of Business Administration degree from the University of Texas at Austin.
M. Jason Mattox is the Executive Vice President of Behringer Advisors II and serves in a similar capacity with other Behringer Harvard companies. From 2002 until March 2006, Mr. Mattox served as the Senior Vice President of Behringer Advisors II.
From 1997 until joining Behringer Advisors II in 2002, Mr. Mattox served as a Vice President of Harvard Property Trust, Inc. and became a member of its Investment Committee in 1998. From 1999 until 2001, Mr. Mattox served as Vice President of Sun Resorts International, Inc., a recreational property investment company, coordinating marina acquisitions throughout the southern United States and the U.S. Virgin Islands. From 1999 until 2001, in addition to providing services related to investing, acquisition, disposition and operational activities, Mr. Mattox served as an asset manager with responsibility for over one million square feet of Harvard Property Trust, Inc.’s commercial office assets in Texas and Minnesota, overseeing property performance, management offices, personnel and outsourcing relationships.
Mr. Mattox is a continuing member of the Building Owners and Managers Association and the National Association of Industrial and Office Properties. Mr. Mattox holds FINRA Series 7, 24 and 63 registrations. Mr. Mattox received a Bachelor of Business Administration degree, with honors, and a Bachelor of Science degree, cum laude, from Southern Methodist University.
Jon L. Dooley, is our Executive Vice President - Real Estate. Mr. Dooley holds the same position with the other Behringer Harvard sponsored programs.
Mr. Dooley has over 25 years of commercial real estate experience. From June 2002 until May 2003, he served on the board of directors of Behringer Harvard REIT I. In 2002, Mr. Dooley served as a Senior Vice President with Trammell Crow Company, a New York Stock Exchange listed diversified commercial real estate company (since acquired by CB Richard Ellis Group, Inc.). For the 13 years prior to joining Trammell Crow Company, Mr. Dooley held various senior management positions with Lend Lease Real Estate Investments, Inc. (Lend Lease), a commercial real estate investment company, and its predecessor, Equitable Real Estate Investment Management, Inc. In 1997, Mr. Dooley became a principal with Lend Lease. Prior to that, Mr. Dooley served as a Senior Vice President of Asset Management from 1991 to 1996 while at Equitable Real Estate Management, Inc. Mr. Dooley received a Bachelor of Business Administration degree from Southern Methodist University.
Other Personnel
The General Partners are assisted by the officers and employees of HPT, which is the general partner of Behringer Advisors II. HPT and its affiliates employed approximately 370 full-time persons at December 31, 2007, including the executive officers listed above. HPT and its affiliates will continue to hire employees as needed. HPT and its affiliates also will engage the services of non-affiliated third parties to assist with the identification of properties for possible acquisition and management of our operations.
Advisory Board
We do not have a board of directors. The General Partners are assisted by an advisory board. No member of the advisory board may be a general partner, officer or employee of ours, Behringer Advisors II, or an affiliate of ours or Behringer Advisors II, although members of the advisory board may purchase or own securities of, or have other business relations with, such parties. The members of the advisory board are Patrick M. Arnold, Ralph G. Edwards, Jr., Robert “Bobby” W. McMillan and Scott F. McMullin.
No Audit Committee; No “Audit Committee Financial Expert”
We do not have a board of directors and, as such, have no board committees such as an audit committee. Because we do not have an audit committee, we do not have an “audit committee financial expert.” The General Partners are responsible for managing the relationship with our Independent Registered Public Accounting Firm.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires each director, officer, and individual beneficially owning more than 10% of a registered security of the Partnership to file with the SEC reports of security ownership and reports on subsequent changes in ownership of our securities within specified time frames. These specified time frames require the reporting of changes in ownership within two business days of the transaction giving rise to the reporting obligation. Reporting persons are required to furnish us with copies of all Section 16(a) forms filed with the SEC. Based upon our review of the reports furnished to us pursuant to Section 16(a) of the Exchange Act, to the best of our knowledge, all required Section 16(a) filings were timely and correctly made by reporting persons during 2007.
Code of Ethics
Behringer Advisors II has adopted a code of ethics applicable to its principal executive officer, principal financial officer, principal accounting officer, controller and other employees. A copy of the code of ethics of Behringer Advisors II may be obtained from our web site at http://www.behringerharvard.com. The web site will be updated to include any material waivers or modifications to the code of ethics.
Item 11.
Item 11. Executive Compensation.
We operate under the direction of our General Partners, which are responsible for the management and control of our affairs. As of December 31, 2007, we have not made any payments to Mr. Behringer as compensation for serving as general partner. The officers and employees of HPT assist the General Partners. The officers and employees of HPT do not devote all of their time to managing us, and they do not receive any compensation from us for their services. We pay fees to Behringer Advisors II and its other affiliates as provided for in our Partnership Agreement. Accordingly, we do not have, and our General Partners have not considered, a compensation policy or program for themselves, their affiliates, any employees of Behringer Advisors II or any employees of affiliates of our General Partners and have not included a Compensation Discussion and Analysis in this Annual Report on Form 10-K. See “Item 13. Certain Relationships and Related Transactions, and Director Independence” for a description of the fees payable and expenses reimbursed to our affiliates.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
We do not have any officers or directors. Our two General Partners, Mr. Behringer and Behringer Advisors II, each own 50% of the general partnership interest. We do not maintain any equity compensation plans, and no arrangements exist that would, upon operation, result in a change in control.
The following table sets forth information as of March 15, 2008 regarding the beneficial ownership of our limited partnership and general partnership interests by each of our General Partners, each director or executive officer of our General Partner, Behringer Advisors II, and all directors and officers of Behringer Advisors II as a group. There were no limited partners known by us who beneficially owned more than 5% of our limited partnership units as of March 18, 2008. The percentage of beneficial ownership is calculated based on 10,803,839 limited partnership units and contributions from our General Partners.
*Denotes less than 1%
(1) The address of Messrs. Behringer, Aisner, Reihsen, Bresky, Mattox, Dooley and Behringer Advisors II is 15601 Dallas Parkway, Suite 600, Addison, Texas 75001.
(2) Executive Officers of Behringer Advisors II.
(3) General Partners.
(4) Consists of $500 of combined general partnership interests held directly by Mr. Behringer and Behringer Advisors II.
Item 13.
Item 13. Certain Relationships and Related Transactions, and Director Independence.
Transactions with Related Persons
The General Partners and certain of their affiliates are entitled to receive fees and compensation in connection with the acquisition, management and sale of our assets, and have received fees in the past in connection with the Offering. Our General Partners have agreed that all of the financial benefits of serving as our general partners will be allocated to Behringer Advisors II since it is anticipated that the day-to-day responsibilities of serving as our general partner will be performed by Behringer Advisors II through the executive officers of its general partner.
During the term of the Offering, Behringer Securities, our dealer manager and a related party of our General Partners, received commissions of up to 7% of gross offering proceeds before reallowance of commissions earned by participating broker-dealers. In addition, up to 2.5% of gross proceeds before reallowance to participating broker-dealers was paid to Behringer Securities as a dealer manager fee; except that this dealer manager fee was reduced to 1% of the gross proceeds of purchases made pursuant to the distribution reinvestment feature of our DRIP, which was terminated on January 21, 2005. Behringer Securities reallowed all of its commissions to participating broker-dealers and reallowed a portion of its dealer manager fee of up to 1.5% of the gross offering proceeds to such participating broker-dealers as marketing fees and due diligence expense reimbursement. Behringer Securities did not earn selling and dealer manager fees for the years ended December 31, 2007 and 2006 as a result of the termination of the Offering on February 19, 2005. For the year ended December 31, 2005, Behringer Securities earned $2.6 million in selling commissions and $1.0 million in dealer manager fees. The commissions and dealer manager fees were recorded as a reduction in Partners’ capital for the year ended December 31, 2005.
Behringer Advisors II, our General Partner, or its affiliates received up to 2.5% of gross offering proceeds for reimbursement of organization and offering expenses. For the years ended December 31, 2007 and 2006, no additional organization or offering expenses were incurred or reimbursed. As of December 31, 2005, approximately $2.3 million of organization and offering expenses was incurred by Behringer Advisors II on our behalf. As of December 31, 2007, all offering expenses incurred by Behringer Advisors II on our behalf had been reimbursed. Of the $2.3 million of organization and offering costs reimbursed by us as of December 31, 2007, approximately $2,266,000 was recorded as a reduction in Partners’ capital and $19,000 was expensed as organization costs. For the year ended December 31, 2005, we reimbursed approximately $567,000 of organization and offering expenses, of which $560,000 was recorded as a reduction in Partners’ capital and $7,000 was expensed as organization costs. Behringer Advisors II or its affiliates determined the amount of organization and offering expenses owed, based on specific invoice identification as well as an allocation of costs to us and other Behringer Harvard programs, based on the respective equity offering results of those entities in offering. No further proceeds will be raised by us as a result of the termination of the Offering and, as a result, we will not make any further reimbursements to Behringer Advisors II for organization and offering expenses incurred or that may be incurred in the future on our behalf.
Behringer Advisors II or its affiliates receive acquisition and advisory fees of up to 3% of the contract purchase price of each asset for the acquisition, development or construction of real property. Behringer Advisors II or its affiliates also receive up to 0.5% of the contract purchase price of the assets acquired by us for reimbursement of expenses related to making investments. During the year ended December 31, 2007, Behringer Advisors II earned $1.0 million of acquisition and advisory fees and was reimbursed $0.2 million for acquisition-related expenses primarily related to the development of the Telluride Property. During the year ended December 31, 2006, Behringer Advisors II earned $0.2 million of acquisition and advisory fees and was reimbursed approximately $31,000 for acquisition-related expenses. During the year ended December 31, 2005, Behringer Advisors II earned $3.5 million of acquisition and advisory fees and was reimbursed $0.6 million for acquisition-related expenses.
For the management and leasing of our properties, we pay HPT Management, our property manager and an affiliate of our General Partners, property management and leasing fees equal to the lesser of: (a) the amounts charged by unaffiliated persons rendering comparable services in the same geographic area or (b)(1) for commercial properties that are not leased on a long-term net lease basis, 4.5% of gross revenues, plus separate leasing fees of up to 1.5% of gross revenues based upon the customary leasing fees applicable to the geographic location of the properties, and (2) in the case of commercial properties that are leased on a long-term net lease basis (ten or more years), 1% of gross revenues plus a one-time initial leasing fee of 3% of gross revenues payable over the first five years of the lease term. We reimburse the costs and expenses incurred by HPT Management on our behalf, including the wages and salaries and other employee-related expenses of all on-site employees of HPT Management who are engaged in the operation, management, maintenance and leasing or access control of our properties, including taxes, insurance and benefits relating to such employees, and legal, travel and other out-of-pocket expenses that are directly related to the management of specific properties. During the year ended December 31, 2007 and 2006, we incurred property management fees payable to HPT Management of $0.6 million and $0.7 million, respectively, of which approximately $50,000 is included in loss from discontinued operations for the year ended December 31, 2006. During the year ended December 31, 2005, we incurred property management fees payable to HPT Management of $0.5 million, of which $89,000 is included in loss from discontinued operations.
We pay Behringer Advisors II or its affiliates an annual asset management fee of 0.5% of the contract purchase price of our assets. Any portion of the asset management fee may be deferred and paid in a subsequent year. For the year ended December 31, 2007, asset management fees of approximately $1.0 million were waived, of which approximately $0.1 million was capitalized to real estate. During the year ended December 31, 2006, we incurred asset management fees of $0.9 million, of which approximately $27,000 was included in loss from discontinued operations and $0.3 million was capitalized to real estate. During the year ended December 31, 2005, we incurred asset management fees of $0.5 million, of which approximately $52,000 was included in loss from discontinued operations and $0.1 million was capitalized to real estate.
We will pay Behringer Advisors II or its affiliates a debt financing fee for certain debt made available to us. We incurred $0.3 million of such debt financing fees for the year ended December 31, 2006. We incurred no such debt financing fees for the years ended December 31, 2007 and 2005.
On November 9, 2007, we entered into the BHH Loan pursuant to which we may borrow a total principal amount of $10 million. The interest rate under the BHH Loan is 5% per annum, with the accrued and unpaid amount of interest payable until the principal amount of each advance under the BHH Loan is paid in full. We borrowed a total of $7.5 million under the BHH Loan during the year ended December 31, 2007. The maturity date of all borrowings under the BHH Loan is November 9, 2010, and all proceeds from such borrowings will be used for working capital purposes. On December 31, 2007, Behringer Holdings forgave all $7.5 million of principal borrowings and accrued interest thereon. Behringer Holdings does not hold a direct equity interest in us.
We are dependent on Behringer Advisors II and HPT Management for certain services that are essential to us, including asset acquisition and disposition decisions, property management and leasing services and other general and administrative responsibilities. In the event that these companies were unable to provide the respective services to us, we would be required to obtain such services from other sources.
Policies and Procedures for Transactions with Related Persons
The agreements and arrangements among us, our General Partners and their affiliates have been established by our General Partners, and our General Partners believe the amounts to be paid thereunder to be reasonable and customary under the circumstances. In an effort to establish standards for minimizing and resolving their potential conflicts of interest, our General Partners have agreed to the guidelines and limitations set forth in our Partnership Agreement. Among other things, these provisions:
·
set forth the specific conditions under which we may own or lease property jointly or in a partnership with an affiliate of the General Partners;
·
prohibit us from purchasing or leasing an investment property from our General Partners or their affiliates except under certain limited circumstances;
·
prohibit loans by us to our General Partners or their affiliates;
·
prohibit the commingling of partnership funds (except in the case of making capital contributions to joint ventures and to the limited extent permissible under the NASAA Guidelines); and
·
with certain exceptions, prohibit our General Partners from merging or consolidating us with another partnership or a corporation or converting us to a corporation unless the transaction complies with certain terms and conditions including first obtaining a majority vote of our limited partners.
In addition, our General Partners have a fiduciary obligation to act in the best interests of both our limited partners and the investors in other affiliated programs and will use their best efforts to assure that we will be treated at least as favorably as any other affiliated program.
Item 14.
Item 14. Principal Accounting Fees and Services.
Because we do not have a board of directors or any board committees, including an audit committee, the General Partners pre-approve all auditing and permissible non-auditing services provided by our independent registered public accounting firm. The independent public accountants may not be retained to perform the non-auditing services specified in Section 10A(g) of the Securities Exchange Act of 1934.
Fees Paid to Independent Public Registered Accounting Firms
The following table presents (in thousands) aggregate fees for professional audit services billed to us for the fiscal years ended December 31, 2007 and 2006 by our independent registered public accounting firm, Deloitte & Touche LLP, the member firm of Deloitte Touche Tohmatsu, and their respective affiliates (collectively, “Deloitte & Touche”):
(1) Audit fees consisted of professional services performed in connection with the audit of our annual consolidated financial statements and review of consolidated financial statements included in our Forms 10-Q.
(2) Audit-related fees consisted of Sarbanes-Oxley Act, Section 404 advisory services.
(3) Tax fees were for assistance with matters related to tax compliance, tax planning and tax advice.
PART IV
Item 15.
Item 15. Exhibits, Financial Statement Schedules.
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Behringer Harvard Short-Term Opportunity Fund I LP
March 31, 2008
By:
/s/ Robert M. Behringer
Robert M. Behringer
General partner of the Registrant and Chief Executive Officer of Harvard Property Trust, LLC, sole general partner of Behringer Harvard Advisors II LP
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
March 31, 2008
/s/ Robert M. Behringer
Robert M. Behringer
General partner of the Registrant and Chief Executive Officer of Harvard Property Trust, LLC, sole general partner of Behringer Harvard Advisors II LP (Principal Executive Officer)
March 31, 2008
/s/ Gary S. Bresky
Gary S. Bresky
Chief Financial Officer of Behringer Harvard Advisors II LP (Principal Financial Officer)
March 31, 2008
/s/ Kimberly Arianpour
Kimberly Arianpour
Chief Accounting Officer of Behringer Harvard Advisors II LP (Principal Accounting Officer)
Page
Financial Statements
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2007 and 2006
Consolidated Statements of Operations for the Years Ended December 31, 2007, 2006 and
Consolidated Statements of Partners’ Capital and Comprehensive Loss for the Years Ended December 31, 2007, 2006 and 2005
Consolidated Statements of Cash Flows for the Years Ended December 31, 2007, 2006 and 2005
Notes to Consolidated Financial Statements
Financial Statements of Behringer Harvard Plaza Skillman LP
Report of Independent Registered Public Accounting Firm
Statement of Operations for the Period from January 1, 2005 through May 22,
Notes to Financial Statements
Financial Statements of Behringer Harvard 4245 Central LP
Report of Independent Registered Public Accounting Firm
Statement of Operations for the Period from January 1, 2005 through October 30, 2005
Notes to Financial Statements
Financial Statement Schedule
Report of Independent Registered Public Accounting Firm
Schedule II - Valuation and Qualifying Accounts
Schedule III - Real Estate and Accumulated Depreciation
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Partners of
Behringer Harvard Short-Term Opportunity Fund I LP
Addison, Texas
We have audited the accompanying consolidated balance sheets of the Behringer Harvard Short-Term Opportunity Fund I LP and subsidiaries (the “Partnership”) as of December 31, 2007 and 2006 and the related consolidated statements of operations, partners’ capital and cash flows for each of the three years in the period ended December 31, 2007. These financial statements are the responsibility of the Partnership’s management. Our responsibility is to express an opinion on these financial statements 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 audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Partnership is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Partnership’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, 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, such consolidated financial statements present fairly, in all material respects, the financial position of the Partnership at December 31, 2007 and 2006, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2007, in conformity with accounting principles generally accepted in the United States of America.
/s/ Deloitte & Touche LLP
Dallas, Texas
March 31, 2008
Behringer Harvard Short-Term Opportunity Fund I LP
Consolidated Balance Sheets
As of December 31, 2007 and 2006
(in thousands, except unit amounts)
See Notes to Consolidated Financial Statements.
Behringer Harvard Short-Term Opportunity Fund I LP
Consolidated Statements of Operations
For the years ended December 31, 2007, 2006 and 2005
(in thousands except per unit amounts)
See Notes to Consolidated Financial Statements.
Behringer Harvard Short-Term Opportunity Fund I LP
Consolidated Statements of Partners’ Capital and Comprehensive Loss
For the years ended December 31, 2007, 2006 and 2005
(in thousands)
See Notes to Consolidated Financial Statements.
Behringer Harvard Short-Term Opportunity Fund I LP
Consolidated Statements of Cash Flows
For the years ended December 31, 2007, 2006 and 2005
(in thousands)
See Notes to Consolidated Financial Statements.
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
1. Business and Organization
Business
Behringer Harvard Short-Term Opportunity Fund I LP (which may be referred to as the “Partnership,” “we,” “us,” or “our”) is a limited partnership formed in Texas on July 30, 2002. Our general partners are Behringer Harvard Advisors II LP (“Behringer Advisors II”) and Robert M. Behringer (collectively, the “General Partners”). We were funded through capital contributions from our General Partners and initial limited partner on September 20, 2002 (date of inception) and offered our limited partnership units pursuant to the public offering which commenced on February 19, 2003 (the “Offering”), terminated on February 19, 2005, and is described below. The Offering was a best efforts continuous offering, and we continued to admit new investors until the termination of the Offering in February 2005. We have used the proceeds from the Offering, after deducting offering expenses, to acquire interests in twelve properties, including seven office building properties, one shopping/service center, a hotel redevelopment with an adjoining condominium development, two development properties and undeveloped land.
We are not currently seeking to purchase any additional properties; however, in limited circumstances, we may purchase properties as a result of selling one or more of the properties we currently hold and reinvesting the sales proceeds in properties that fall within our investment objectives and investment criteria. We are opportunistic in our acquisition of properties. Properties may be acquired in markets that are depressed or overbuilt with the anticipation that these properties will increase in value as the markets recover. Properties may also be acquired and repositioned by seeking to improve the property and tenant quality and thereby increase lease revenues. We will consider investments in all types of commercial properties, including office buildings, shopping centers, business and industrial parks, manufacturing facilities, apartment buildings, warehouses and distribution facilities, if the General Partners determine that it would be advantageous to do so. Investments may also include commercial properties that are not preleased to such tenants or in other types of commercial properties, such as hotels or motels. However, we will not actively engage in the business of operating hotels, motels or similar properties.
We may purchase properties that have been constructed and have operating histories, are newly constructed or are under development or construction. An advisory board has been established to provide the General Partners with advice and guidance with respect to (1) the identification of assets for acquisition; (2) general economic and market conditions, general business principles, and specific business principles relating to our business plan; (3) inroads to establishing beneficial strategic partners, customers, and suppliers; (4) opportunities within and related to the industry; and (5) other assistance as may be determined by the General Partners or their representatives from time to time. Our Agreement of Limited Partnership, as amended (the “Partnership Agreement”), provides that we will continue in existence until the earlier of December 31, 2017 or termination of the Partnership pursuant to the dissolution and termination provisions of the Partnership Agreement.
Organization
On February 19, 2003, we commenced the Offering of up to 10,000,000 units of limited partnership interest at a price of $10 per unit pursuant to a Registration Statement on Form S-11 (the “Registration Statement”) filed under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement also covered up to 1,000,000 units available pursuant to our distribution reinvestment and automatic purchase plan (the “DRIP”) at $10 per unit. On January 21, 2005, we amended our Registration Statement on Form S-11 with Post-Effective Amendment No. 7 to increase the number of units of limited partnership interest being offered to 10,950,000 and decrease the number of units available to be issued under the DRIP to the 50,000 units that had already been issued, thus terminating our DRIP. The number of units sold and the gross offering proceeds realized pursuant to the Offering were 10,997,188 limited partnership units for $109.2 million. Our General Partners terminated the redemption program effective December 31, 2006. As of December 31, 2007, we had redeemed 193,349 of the units issued pursuant to the Offering for $1.7 million.
Until December 31, 2008, the value of our units will be deemed to be $10, as adjusted for any special distributions, and no valuation or appraisal of our units will be performed. As of December 31, 2007, we estimate the per unit valuation to be $9.44, due to a special distribution made in 2005 of $0.10 per unit and a special distribution of $0.46 per unit made in 2006 of a portion of the net proceeds from the sale of properties. For fiscal year 2009, we will prepare annual valuations of our units based upon the estimated amount a limited partner would receive if all Partnership assets were sold for their estimated values as of the close of our fiscal year and all proceeds from such sales, without reduction for selling expenses, together with any funds held by the Partnership, were distributed to the limited partners upon liquidation. Such estimated property values will be based upon annual valuations performed by the General Partners, and no independent property appraisals will be obtained. While the General Partners are required under the Partnership Agreement to obtain the opinion of an independent third party stating that their estimates of value are reasonable, the unit valuations provided by the General Partners may not satisfy the technical requirements imposed on plan fiduciaries under the Employee Retirement Income
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
Security Act. Similarly, the unit valuations provided by the General Partners may be subject to challenge by the Internal Revenue Service if used for any tax (income, estate and gift or otherwise) valuation purpose as an indicator of the fair value of the units.
As of December 31, 2007 and 2006, we had 10,803,839 limited partnership units outstanding.
2. Summary of Significant Accounting Policies
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. These estimates include such items as purchase price allocation for real estate acquisitions, impairment of long-lived assets, depreciation and amortization and allowance for doubtful accounts. Actual results could differ from those estimates.
Principles of Consolidation and Basis of Presentation
The consolidated financial statements include our accounts and the accounts of our subsidiaries. All inter-company transactions, balances and profits have been eliminated in consolidation. Interests in entities acquired are evaluated based on Financial Accounting Standards Board Interpretation (“FIN”) No. 46R, “Consolidation of Variable Interest Entities,” which requires the consolidation of variable interest entities in which we are deemed to be the primary beneficiary. If the interest in the entity is determined not to be a variable interest entity under FIN No. 46R, then the entities are evaluated for consolidation under the American Institute of Certified Public Accountants (“AICPA”) Statement of Position (“SOP”) 78-9, “Accounting for Investments in Real Estate Ventures,” as amended by Emerging Issues Task Force (“EITF”) Issue 04-5, “Determining Whether a General Partner, or the General Partners as a Group, Controls a Limited Partnership or Similar Entity When the Limited Partners Have Certain Rights.”
Real Estate
Upon the acquisition of real estate properties, we allocate the purchase price of those properties to the tangible assets acquired, consisting of land, inclusive of associated rights, and buildings, any assumed debt, identified intangible assets and asset retirement obligations based on their relative fair values in accordance with Statement of Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible Assets.” Identified intangible assets consist of the fair value of above-market and below-market leases, in-place leases, in-place tenant improvements and tenant relationships. Initial valuations are subject to change until our information is finalized, which is no later than 12 months from the acquisition date.
The fair value of the tangible assets acquired, consisting of land and buildings, is determined by valuing the property as if it were vacant, and the “as-if-vacant” value is then allocated to land and buildings. Land values are derived from appraisals, and building values are calculated as replacement cost less depreciation or management’s estimates of the relative fair value of these assets using discounted cash flow analyses or similar methods. The value of commercial office buildings are depreciated over the estimated useful life of 25 years using the straight-line method and hotels/mixed-use properties are depreciated over the estimated useful life of 39 years using the straight-line method.
We determine the value of above-market and below-market in-place leases for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (1) the contractual amounts to be paid pursuant to the in-place leases and (2) management’s estimate of current market lease rates for the corresponding in-place leases, measured over a period equal to the determined lease term. We record the fair value of above-market and below-market leases as intangible assets or intangible liabilities, respectively, and amortize them as an adjustment to rental income over the determined lease term.
The total value of identified real estate intangible assets acquired is further allocated to in-place lease values and tenant relationships based on our evaluation of the specific characteristics of each tenant’s lease and our overall relationship with that respective tenant. The aggregate value of in-place leases acquired and tenant relationships is determined by applying a fair value model. The estimates of fair value of in-place leases include an estimate of carrying costs during the expected lease-up periods for the respective spaces, considering current market conditions. In estimating fair value of in-place leases, we consider items such as real estate taxes, insurance and other operating expenses, as well as lost rental revenue during the expected lease-up period and carrying costs that would have otherwise been incurred had the leases not been in place, including tenant improvements and commissions. The estimates of the fair value of tenant relationships also include costs to execute similar leases, including leasing commissions, legal costs and tenant improvements as well as an estimate of the likelihood of renewal as determined by management on a tenant-by-tenant basis.
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
We amortize the value of in-place leases to expense over the term of the respective leases. The value of tenant relationship intangibles is amortized to expense over the initial term and any anticipated renewal periods, but in no event does the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and tenant relationship intangibles would be charged to expense. The estimated remaining average useful lives of our acquired lease intangibles as of December 31, 2007 range from 0.3 years to 5.3 years.
We determine the fair value of assumed debt by calculating the net present value of the scheduled note payments using interest rates for debt with similar terms and remaining maturities that we believe we could obtain. Any difference between the fair value and stated value of the assumed debt is recorded as a discount or premium and amortized over the remaining life of the loan.
Anticipated amortization associated with acquired lease intangibles for each of the following five years ended December 31 is as follows (in thousands):
Accumulated depreciation and amortization related to direct investments in real estate assets and related lease intangibles as of December 31, 2007 and 2006 were as follows (in thousands):
Impairment of Long-Lived Assets
For real estate we wholly own, management monitors events and changes in circumstances indicating that the carrying amounts of the real estate assets may not be recoverable. When such events or changes in circumstances occur, we will assess potential impairment by comparing estimated future undiscounted operating cash flows expected to be generated over the life of the asset, including its eventual disposition, to the carrying amount of the asset. In the event that the carrying amount exceeds the estimated future undiscounted operating cash flows, we perform an impairment analysis to determine if the carrying amount of the asset needs to be reduced to estimated fair value. We determine the estimated fair value based on cash flow streams using various factors including estimated future selling prices, costs spent to date, remaining budgeted costs and selling costs.
For real estate owned by us through an investment in a limited partnership, joint venture, tenant-in-common interest or other similar investment structure, at each reporting date, management compares the estimated fair value of its investment to the carrying value. An impairment charge is recorded to the extent that the fair value of the investment is less than the carrying amount and the decline in value is determined to be other than a temporary decline.
During 2007, the housing market experienced difficult conditions including high inventory levels, tightening of the credit market and weak consumer confidence. As a result of the evaluation and current economic conditions, we recognized a non-cash charge of $0.3 million for the year ended December 31, 2007 to reduce the carrying value of Northwest Highway Land, which contains developed land lots for future sale to luxury homebuilders, to its estimated fair value. This non-cash charge is classified as asset impairment in the accompanying consolidated statement of operations. There were no impairment charges for long-lived assets for the years ended December 31, 2006 or 2005. In the event that market conditions
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
continue to decline in the future or the current difficult market conditions extend beyond our expectations, additional impairments may be necessary in the future.
Condominium Inventory
Condominium inventory is stated at the lower of cost or fair market value. In addition to land acquisition costs, land development costs and construction costs, costs include interest and real estate taxes, which are capitalized during the period beginning with the commencement of development and ending with the completion of construction.
Inventory Impairment
For condominium inventory, at each reporting date, management compares the estimated fair value less costs to sell to the carrying value. An impairment charge is recorded to the extent that the fair value less costs to sell is less than the carrying value. We determine the estimated fair value of condominiums based on comparable sales in the normal course of business under existing and anticipated market conditions. This evaluation takes into consideration estimated future selling prices, costs spent to date, estimated additional future costs and management’s plans for the property.
The continued nationwide downturn in the housing market industry and related condominium sales during 2007 resulted in lower than expected sales volume and reduced selling prices, among other effects. As a result of the evaluation, we recognized a non-cash charge of $2.1 million for the year ended December 31, 2007 to reduce the carrying value of condominiums at Hotel Palomar and Residences, which is classified as asset impairment in the accompanying consolidated statement of operations. In the event that market conditions continue to decline in the future or the current difficult market conditions extend beyond our expectations, additional impairments may be necessary in the future.
Cash and Cash Equivalents
We consider investments with original maturities of three months or less to be cash equivalents.
Restricted Cash
Restricted cash includes monies to be held in escrow for insurance, taxes and other reserves for our consolidated properties as required by our lenders.
Accounts Receivable
Accounts receivable primarily consists of receivables from hotel guests and tenants related to those properties that are consolidated in our financial statements. We recorded an allowance for doubtful accounts associated with accounts receivable of $0.2 million at both December 31, 2007 and 2006.
Prepaid Expenses and Other Assets
Prepaid expenses and other assets includes inventory, prepaid directors’ and officers’ insurance, prepaid advertising, as well as prepaid insurance and real estate taxes for our consolidated properties. Inventory consists of food, beverages, linens, glassware, china and silverware and is carried at the lower of cost or market value.
Furniture, Fixtures and Equipment
Furniture, fixtures and equipment are recorded at cost and depreciation is calculated using the straight-line method over the estimated useful lives of the assets. Equipment, furniture and fixtures, and computer software are depreciated over three-year and five-year lives. Maintenance and repairs are charged to operations as incurred while renewals or improvements to such assets are capitalized. We had recorded accumulated depreciation associated with our furniture, fixtures and equipment of $1.6 million and $0.3 million at December 31, 2007 and 2006, respectively.
Deferred Financing Fees
Deferred financing fees are recorded at cost and are amortized using a straight-line method that approximates the effective interest method over the life of the related debt. Accumulated amortization associated with deferred financing fees was $1.0 million and $1.9 million at December 31, 2007 and 2006, respectively.
Derivative Financial Instruments
SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities,” as amended and interpreted, establishes accounting and reporting standards for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities. Our objective in using derivatives is to add stability to interest expense and to manage our exposure to interest rate movements or other identified risks. To accomplish this objective, we use interest rate swaps as part of our cash flow hedging strategy. Interest rate swaps designated as cash flow hedges are entered into to limit
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
our exposure to increases in the London Interbank Offer Rate (“LIBOR”) above a “strike rate” on certain of our floating-rate debt.
We measure our derivative instruments and hedging activities at fair value and record them as an asset or liability, depending on our rights or obligations under the applicable derivative contract. For derivatives designated as fair value hedges, the changes in the fair value of both the derivative instrument and the hedged items are recorded in earnings. Derivatives used to hedge the exposure to variability in expected future cash flows, or other types of forecasted transactions, are considered cash flow hedges. For derivatives designated as cash flow hedges, the effective portions of changes in fair value of the derivative are reported in partners’ capital and are subsequently reclassified into earnings when the hedged item affects earnings. Changes in fair value of derivative instruments not designated as hedges and ineffective portions of hedges are recognized in earnings in the affected period. We assess the effectiveness of each hedging relationship by comparing the changes in fair value or cash flows of the derivative hedging instrument with the changes in fair value or cash flows of the designated hedged item or transaction.
In September 2007, we entered into an interest rate swap agreement designated as a cash flow hedge related to debt secured by a 475,000 square foot mixed-use project with a boutique hotel, high-rise luxury condominiums and retail stores (“Hotel Palomar and Residences”). See Note 6 “Notes Payable” and Note 7 “Derivative Instruments and Hedging Activities.” As of December 31, 2007, we do not have any derivatives designated as fair value hedges or hedges of net investments in foreign operations, nor are derivatives being used for trading or speculative purposes.
Revenue Recognition
We recognize rental income generated from leases on real estate assets on the straight-line basis over the terms of the respective leases, including the effect of rent holidays, if any. The total net increase to rental revenues due to straight-line rent adjustments for the year ended December 31, 2007 was $1.5 million and for the years ended December 31, 2006 and 2005 was $0.3 million each. As discussed above, our rental revenue also includes amortization of above and below market leases. Any payments made to tenants that are considered lease incentives or inducements are being amortized to revenue over the life of the respective leases. We also recognize revenue from operations of a hotel. The revenues are recognized when earned. Revenues relating to lease termination fees are recognized at the time that a tenant’s right to occupy the space is terminated and when we have satisfied all obligations under the agreement.
Hotel revenues consisting of guest room, food and beverage, and other revenue are derived from the operations of the boutique hotel portion of Hotel Palomar and Residences and are recognized as the services are rendered.
Revenues from the sales of condominiums are recognized when sales are closed and title passes to the new owner, the new owner’s initial and continuing investment is adequate to demonstrate a commitment to pay for the condominium, the new owner’s receivable is not subject to future subordination and we do not have a substantial continuing involvement with the new condominium in accordance with SFAS No. 66, “Accounting for Sales of Real Estate.”
Preopening Costs
Preopening costs are expensed as incurred, consistent with SOP 98-5, “Reporting on the Costs of Start-Up Activities.” Expenses incurred include payroll and payroll related expenses, outside services and other expenses related to the construction of Hotel Palomar and Residences, which is located on approximately 5.4 acres (unaudited) of land in Dallas, Texas. The hotel became operational in September 2006.
Advertising Costs
Advertising costs are expensed as they are incurred.
Cash Flow Distributions
Net cash distributions, as defined in the Partnership Agreement, are to be distributed to the partners as follows:
a) To the limited partners, on a per unit basis, until each of such limited partners has received distributions of net cash from operations with respect to such fiscal year, or applicable portion thereof, equal to ten percent (10%) per annum of their net capital contribution;
b) Then to the limited partners, on a per unit basis, until each limited partner has received or has been deemed to have received one hundred percent (100%) of their net capital contribution; and
c) Thereafter, eighty-five percent (85%) to the limited partners, on a per unit basis, and fifteen percent (15%) to the General Partners.
Other limitations of allocated or received distributions are defined within the Partnership Agreement.
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Notes to Consolidated Financial Statements
Income (Loss) Allocations
Net income for each applicable accounting period is allocated to the partners as follows:
a) To the partners to the extent of and in proportion to allocations of net loss as noted below; and
b) Then, so as to cause the capital accounts of all partners to permit liquidating distributions to be made in the same manner and priority as set forth in the Partnership Agreement with respect to net cash distributions.
Net loss for each applicable accounting period is allocated to the partners as follows:
a) To the partners having positive balances in their capital accounts (in proportion to the aggregate positive balances in all capital accounts) in an amount not to exceed such positive balance as of the last day of the fiscal year; and
b) Then, eighty-five percent (85%) to the limited partners and fifteen percent (15%) to the General Partners.
Concentration of Credit Risk
At December 31, 2007 and 2006, we had cash and cash equivalents and restricted cash on deposit in financial institutions in excess of federally insured levels. We regularly monitor the financial stability of these financial institutions and believe that we are not exposed to any significant credit risk.
Reportable Segments
Financial Accounting Standards Board (“FASB”) Statement of Financial Accounting Standards No. 131, “Disclosures about Segments of an Enterprise and Related Information,” establishes standards for reporting financial and descriptive information about an enterprise’s reportable segments. We have determined that we have one reportable segment, with activities related to the ownership, development and management of real estate assets. Our income producing properties generated 100% of our consolidated revenues for the years ended December 31, 2007, 2006 and 2005. Our chief operating decision maker, as defined by SFAS No. 131, evaluates operating performance on an individual property level. Therefore, our properties are aggregated into one reportable segment.
Minority Interest
We hold a direct or indirect majority controlling interest in certain real estate partnerships and thus, consolidate the accounts with and into our accounts. Minority interest in partnerships represents the third-party partners’ proportionate share of the equity in consolidated real estate partnerships. Income and losses are allocated to minority interest holders based on their weighted average percentage ownership during the year.
Income Taxes
As a limited partnership, we are generally not subject to income tax. On May 18, 2006, the State of Texas enacted a new law which replaced the then-current state franchise tax with a “margin tax.” In general, legal entities that conduct business in Texas are subject to the Texas margin tax, including previously non-taxable entities such as limited partnerships and limited liability partnerships. The tax is assessed on Texas sourced taxable margin, which is defined as the lesser of (1) 70% of total revenue or (2) total revenue less (a) the cost of goods sold or (b) compensation and benefits. Although the law states that the margin tax is not an income tax, it has the characteristics of an income tax since it is determined by applying a tax rate to a base that considers both revenues and expenses. For the year ended December 31, 2007, we recognized a provision for current tax expense of approximately $181,000 and a provision for a deferred tax benefit of approximately $6,000 related to the Texas margin tax.
Certain of our transactions may be subject to accounting methods for income tax purposes that differ from the accounting methods used in preparing these financial statements in accordance with GAAP. Accordingly, our net income or loss and the resulting balances in the partners’ capital accounts reported for income tax purposes may differ from the balances reported for those same items in the accompanying financial statements.
Net Loss Per Limited Partnership Unit
Net loss per limited partnership unit is calculated by dividing the net loss allocated to limited partners for each period by the weighted average number of limited partnership units outstanding during such period. Net loss per limited partnership unit on a basic and diluted basis is the same because the Partnership has no potential dilutive limited partnership units outstanding.
3. New Accounting Pronouncements
In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements.” SFAS No. 157 establishes a single authoritative definition of fair value, sets out a framework for measuring fair value, and requires additional disclosures about fair value measurements. SFAS No. 157 applies only to fair value measurements that are already required or permitted
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Notes to Consolidated Financial Statements
by other accounting standards. SFAS No. 157 is effective for fiscal years beginning after November 15, 2007. We are in the process of determining the effect the adoption of SFAS No. 157 will have on our financial statements.
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.” The fair value option established by SFAS No. 159 permits all entities to choose to measure eligible items at fair value at specified election dates. A business entity will report unrealized gains and losses on items for which the fair value option has been elected in earnings (or another performance indicator if the business entity does not report earnings) at each subsequent reporting date. SFAS No. 159 is effective for fiscal years beginning after November 15, 2007. We have not elected the fair value measurement option for any financial assets or liabilities at the present time.
In December 2007, the FASB issued SFAS No. 141(R), “Business Combinations.” This Statement replaces SFAS No. 141 “Business Combinations” but retains the fundamental requirement that the acquisition method of accounting, or purchase method, be used for all business combinations and for an acquirer to be identified for each business combination. This Statement is broader in scope than that of Statement 141, which applied only to business combinations in which control was obtained by transferring consideration. SFAS 141R applies the same method of accounting (the acquisition method) to all transactions and other events in which one entity obtains control over one or more other businesses. This Statement also makes certain other modifications to Statement 141, including a broader definition of a business and the requirement that acquisition related costs are expensed as incurred. This Statement applies to business combinations occurring on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. Early adoption is not allowed. We are currently assessing the effect SFAS No. 141(R) may have on our consolidated results of operations and financial position.
In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements - An amendment of ARB No. 51.” This Statement amends ARB 51 to establish accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. It clarifies that a noncontrolling interest in a subsidiary, which is sometimes referred to as minority interest, is an ownership interest in the consolidated entity that should be reported as equity in the consolidated financial statements. Among other requirements, this Statement requires consolidated net income to be reported at amounts that include the amounts attributable to both the parent and the noncontrolling interest. It also requires disclosure, on the face of the consolidated income statement, of the amounts of consolidated net income attributable to the parent and to the noncontrolling interest. This Statement is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2008 (that is, January 1, 2009, for entities with calendar year-ends). Earlier adoption is prohibited.
4. Capitalized Costs
On November 8, 2004, we acquired a 70% interest in the Hotel Palomar and Residences through our direct and indirect partnership interests in Behringer Harvard Mockingbird Commons LLC (the “Mockingbird Commons Partnership”). The site was redeveloped as a 475,000 square foot mixed-use project with a boutique hotel, high-rise luxury condominiums and retail stores. The hotel began operations in September 2006 and the luxury condominiums and retail stores were completed in the first quarter of 2007. As a result of the completion of the development of the condominiums in the first quarter of 2007, approximately $48.9 million in costs were transferred to condominium inventory from real estate under development on our balance sheet. Certain redevelopment costs associated with Hotel Palomar and Residences have been capitalized on our balance sheet at December 31, 2007. As a result of the completion of the development phase of Hotel Palomar and Residences in March 2007, development costs are no longer being capitalized. For the years ended December 31, 2007 and 2006, we capitalized a total of $3.5 million and $45.1 million, respectively, in costs associated with the development of Hotel Palomar and Residences. Capitalized costs include interest, property taxes, insurance and construction costs. For the years ended December 31, 2007 and 2006, we capitalized $0.6 million and $4.0 million, respectively, in interest costs for Hotel Palomar and Residences.
On March 3, 2005, we acquired an 80% interest in the Northwest Highway Land. The site is planned for development into high-end residential lots for the future sale to luxury home builders. The Northwest Highway Land currently has no operations, and no operations are planned. Development construction of the land was completed in April 2007 and is now classified as land on the accompanying balance sheet. We have selected an exclusive home builder for this property. As a result of the completion of the development phase of the Northwest Highway Land in April 2007, development costs are no longer being capitalized. Certain development costs associated with the Northwest Highway Land have been capitalized on our balance sheet at December 31, 2007. For the years ended December 31, 2007 and 2006, we capitalized a total of $0.4 million and $1.1 million, respectively, in costs associated with the development of the Northwest Highway Land. During the years ended December 31, 2007 and 2006, we capitalized $0.1 million and $0.4 million, respectively, in interest costs for the Northwest Highway Land.
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Notes to Consolidated Financial Statements
On May 15, 2006, we acquired a 100% interest in Cassidy Ridge. We plan to construct 23 luxury condominium units on the 1.56 acre site. Construction is expected to reach completion in early 2009. Cassidy Ridge currently has no operations. Certain development costs associated with Cassidy Ridge have been capitalized on our balance sheet at December 31, 2007. For the years ended December 31, 2007 and 2006, we capitalized a total of $5.7 million and $5.0 million, respectively, in costs associated with the development of Cassidy Ridge. During the years ended December 31, 2007 and 2006, we capitalized $1.1 million and $0.4 million, respectively, in interest costs for Cassidy Ridge.
5. Leasing Activity
Future minimum base rental payments due to us over the next five years under non-cancelable leases in effect as of December 31, 2007 are as follows (in thousands):
The above base payments are exclusive of any contingent rent amounts. Rental revenue in 2007, 2006 and 2005 did not include any amounts from contingent revenue.
As of December 31, 2007, two of our tenants accounted for 10% or more of our aggregate annual rental revenues from our consolidated properties. CompUSA, Inc., a retailer of consumer electronics, leases 100% of 18581 Dallas Parkway and 18451 Dallas Parkway and accounted for rental revenue of approximately $5.8 million, or approximately 41% of our aggregate annual rental revenues for the year ended December 31, 2007. These leases expire in spring 2008. We have executed a long-term direct lease for approximately 90,000 rentable square feet of 18581 Dallas Parkway to a tenant who currently subleases the space. Telvista, Inc., an outsourcing solutions provider, leases 100% of 1221 Coit Road and accounted for rental revenue of $1.5 million, or approximately 10% of our aggregate annual rental revenues for the year ended December 31, 2007. This tenant decided to terminate its lease, which was set to expire on March 31, 2013, effective March 31, 2008, and has agreed to pay an early termination fee.
6. Notes Payable
The following table sets forth the carrying values of our notes payable on our consolidated properties as of December 31, 2007 and 2006 (dollar amounts in thousands):
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Notes to Consolidated Financial Statements
(1) Prime rate at December 31, 2007 was 7.25%.
(2) Three-month LIBOR was 4.7% at December 31, 2007.
(3) 30-day LIBOR was 4.6% at December 31, 2007.
As of December 31, 2007, approximately $53.9 million of the outstanding balance of our notes payable is due within the next twelve months. Of that amount, approximately $51.1 million of the notes payable agreements contain a provision to extend the maturity date for at least one additional year if certain conditions are met. We expect to use cash flows from operations and proceeds from the disposition of properties to continue making our scheduled debt service payments until the maturity dates of the loans are extended, the loans are refinanced, or the outstanding balance of the loans are completely paid off. There is no guaranty that we will be able to refinance our borrowings with more or less favorable terms or extend the maturity dates of such loans.
On January 10, 2007, our 30% minority partner entered into an agreement to loan the Mockingbird Commons Partnership $0.3 million. The loan, funded on January 24, 2007, is unsecured, bears interest at the rate of 10% per annum and the principal amount of the loan and all accrued interest was due and payable in full on or before January 1, 2008. The maturity date of the note was subsequently extended to January 1, 2009. The minority partner also loaned the Mockingbird Commons Partnership $0.2 million on October 9, 2007. The loan has an interest rate of 9.5% per annum and the principal amount and all accrued interest is due and payable in full on or before October 8, 2008. On November 13, 2007, the minority interest partner loaned the Mockingbird Commons Partnership an additional $0.3 million at 9% interest per annum with all accrued interest and unpaid principal due on or before November 13, 2008.
On April 20, 2007, our direct and indirect subsidiary, Behringer Harvard Northwest Highway LP (the “Northwest Highway Partnership”) extended its loan agreement with The Frost National Bank (the “Northwest Highway Land Loan”) that was set to mature on that same date. Under the extension, monthly payments of interest were required. Additionally, quarterly payments of principal in the amount of $0.9 million were due beginning July 19, 2007. The Northwest Highway Partnership originally entered into the Northwest Highway Land Loan on April 20, 2005. Funds from the loan were used to develop land into high-end residential lots for the future sale to luxury home builders. We were subject to a guaranty agreement with The Frost National Bank in which we guaranteed prompt and full repayment of any borrowings. Under the guaranty agreement, we guaranteed, among other things, payment of the borrowings in the event that the Northwest Highway Partnership became insolvent or entered into bankruptcy proceedings.
On July 16, 2007, the Northwest Highway Partnership entered into a loan agreement with Citibank, N.A. to borrow up to $4.5 million. Proceeds from the loan were used to completely pay down the Northwest Highway Land Loan with The Frost National Bank. The interest rate under the loan agreement is the 30-day LIBOR rate plus 2.25% per annum. The maturity date of the loan is July 15, 2009, with two options to extend for six months each. Payments of interest only are due monthly with a principal payment of $0.2 million due on June 30, 2008 and additional principal payments due upon sales of the residential lots, with the remaining balance due and payable on the maturity date. We are subject to a guaranty agreement with Citibank, N.A. in which we guarantee prompt and full repayment of any borrowings. Under the guaranty agreement, we guarantee, among other things, payment of the borrowings in the event that the Northwest Highway Partnership becomes insolvent or enters into bankruptcy proceedings.
On July 1, 2007, Behringer Harvard Quorum I LP, our direct and indirect subsidiary, extended the maturity date of the 5050 Quorum Loan with Citibank, N.A., which was originally set to mature on July 1, 2007, to July 1, 2008. Under the loan agreement, the borrower has the option to elect the interest rate at the prime rate or LIBOR plus 2%, with interest being calculated on the unpaid principal. Payments of interest only are due and payable monthly with all unpaid principal and accrued unpaid interest due and payable on the maturity date.
On January 28, 2008, Behringer Harvard Quorum I LP entered into a loan agreement with Sterling Bank. Borrowings under the loan agreement were $10 million. Approximately $5.1 million of the loan proceeds were used to pay off the loan to the borrower from Citibank, N.A., which was set to mature on July 1, 2008. The remaining proceeds will be used for working capital purposes. The interest rate under the loan is 7%. Monthly payments of interest only are due beginning March 5, 2008. The entire principal balance, together with all accrued, but unpaid interest is due and payable on January 23, 2011, the maturity date. The loan is guaranteed by us and the borrower.
On August 17, 2007, our direct and indirect subsidiary, Behringer Harvard 4245 Central, LP, extended the 4245 N. Central Loan with Bank of America, N.A. which was set to mature on that same date, to August 17, 2009. Under the loan agreement, the borrower has the option to elect the interest rate at the prime rate or LIBOR plus 1.9%, with interest being calculated on the unpaid principal. Monthly payments of principal and interest are due and payable monthly with all unpaid principal and accrued unpaid interest due and payable on the maturity date.
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
On September 6, 2007, Behringer Harvard Mockingbird Commons, LLC, an entity in which we have a 70% direct and indirect ownership interest, entered into a loan agreement (the “Hotel Palomar and Residences Bank of America Loan Agreement”) with Bank of America, N.A. Borrowings under the loan agreement may total up to $42 million. The loan agreement is further evidenced by a deed of trust note from the borrower for the benefit of the lender. Under the loan agreement, the borrower has the option to elect the interest rate at the Bank of America Prime Rate or LIBOR plus 1.75%, with interest being calculated on the unpaid principal. Monthly payments of unpaid accrued interest are due through September 1, 2010. A final payment of the unpaid principal and accrued interest is due and payable on September 6, 2010, the maturity date. The borrower may extend the maturity date of the loan agreement, subject to certain conditions, for two periods of twelve months each. Prepayment of principal can be made, in whole or in part, without penalty or premium, at any time, subject to certain conditions, but accrued interest would be payable through the date of prepayment. Approximately $34 million of the initial loan proceeds were used to pay off a loan to the borrower from American National Bank, which was used to redevelop the Hotel Palomar and Residences. The remaining initial loan proceeds of approximately $7.4 million and the remaining borrowings available under the loan agreement were used for working capital purposes at the Hotel Palomar and Residences. In addition, we have guaranteed payment of the obligation under the loan agreement in the event that, among other things, the borrower becomes insolvent or enters into bankruptcy proceedings.
On September 26, 2007, our direct and indirect subsidiary, Behringer Harvard 1221 Coit LP, extended the 1221 Coit Road Loan with Washington Mutual Bank, which was set to mature on October 4, 2007, to December 4, 2007. On December 4, 2007, we extended the loan with all unpaid principal and unpaid interest due and payable on December 4, 2008.
On September 29, 2007, our direct subsidiary, BHDGI, Ltd. (the “Melissa Land Partnership”), extended the Melissa Land Loan with Dallas City Bank. The loan, which was set to expire on that same date, was extended to September 29, 2008. Accrued but unpaid interest is payable on March 29, 2008 and June 29, 2008. All accrued but unpaid interest and the outstanding principal balance is due on September 29, 2008.
On October 1, 2007, Mockingbird Commons LLC extended the maturity date of the Hotel Palomar and Residences Texans Loan, which was originally set to mature on that same date. Monthly payments of interest only are due through September 1, 2008. All accrued but unpaid interest and the outstanding principal balance is due and payable on October 1, 2008.
On November 9, 2007, we entered into a promissory note payable to Behringer Harvard Holdings, LLC (“BHH Loan”), an affiliate of our General Partner, pursuant to which we may borrow a total principal amount of $10 million. The interest rate under the BHH Loan is 5% per annum, with the accrued and unpaid amount of interest payable until the principal amount of each advance under the BHH Loan is paid in full. We borrowed a total of $7.5 million under the BHH Loan during the year ended December 31, 2007. The maturity date of all borrowings under the BHH Loan was to be November 9, 2010, and all proceeds from such borrowings will be used for working capital purposes. On December 31, 2007, Behringer Harvard Holdings, LLC forgave all $7.5 million of principal borrowings and all interest accrued thereon. Behringer Holdings does not hold a direct equity interest in us.
Generally, our notes payable mature approximately three to five years from origination. Most of our borrowings are on a recourse basis to us, meaning that the liability for repayment is not limited to any particular asset. The majority of our notes payable require payments of interest only, with all unpaid principal and interest due at maturity. Our loan agreements stipulate that we comply with certain reporting and financial covenants. These covenants include, among other things, notifying the lender of any change in management and maintaining minimum debt service coverage. At December 31, 2007, we were in compliance with each of the debt covenants under our loan agreements. Each loan is secured by the associated real property and all loans are unconditionally guaranteed by us.
The following table summarizes our contractual obligations for principal payments on notes payable (excluding unamortized premiums) as of December 31, 2007 (in thousands):
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Notes to Consolidated Financial Statements
7. Derivative Instruments and Hedging Activities
We account for our derivatives and hedging activities under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities,” as amended and interpreted. In September 2007, we entered into an interest rate swap agreement associated with the Hotel Palomar and Residences. For the year ended December 31, 2007, we recognized a comprehensive loss of approximately $0.6 million to adjust the carrying amount of the interest rate swap to fair value at December 31, 2007.
We may be exposed to the risk associated with variability of interest rates that might impact our cash flows and our results of operations. The hedging strategy, therefore, is to eliminate or reduce, to the extent possible, the volatility of cash flows. During 2007, the swap agreement reduced interest expense by approximately $0.1 million. The following table summarizes the notional value and fair value of our derivative financial instrument as of December 31, 2007. The notional value provides an indication of the extent of our involvement in this instrument at December 31, 2007, but does not represent exposure to credit, interest rate, or market risks (in thousands).
Over time the unrealized loss held in accumulated other comprehensive income related to certain cash flow hedges will be reclassified to earnings, of which $0.2 million is expected to be reclassified in 2008. No amounts were reclassified to earnings for the year ended December 31, 2007. This reclassification will correlate with the recognition of the hedged interest payment in earnings. There was no hedge ineffectiveness during the year ended December 31, 2007.
8. Commitments and Contingencies
We record the fair value of any conditional asset retirement obligations in accordance with FIN 47, “Accounting for Conditional Asset Retirement Obligations,” if they can be reasonably estimated. We have identified conditional asset retirement obligations at a certain number of our properties that are related to asbestos removal and soil contamination. As of December 31, 2007, we have recorded $0.5 million for costs associated with asset retirement obligations. We will recognize any additional costs incurred for any conditional asset retirement obligations in the periods in which the costs are incurred or sufficient information becomes available to reasonably estimate their fair values.
We have capital leases covering certain equipment. Future minimum lease payments for all capital leases with initial or remaining terms of one year or more at December 31 are as follows (in thousands):
9. General and Administrative Expenses
General and administrative expenses for the years ended December 31, 2007, 2006 and 2005 consisted of the following (in thousands):
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Notes to Consolidated Financial Statements
For the year ended December 31, 2005, approximately $7,000 of general and administrative expenses incurred was paid to Behringer Advisors II for organizational expenses. No organizational costs were paid to Behringer Advisors II for organizational expenses for the years ended December 31, 2007 and 2006.
10. Partners’ Capital
We initiated the declaration of monthly distributions in March 2004 in the amount of a 3% annualized rate of return, based on an investment in our limited partnership units of $10 per unit. We record all distributions when declared. We paid special distributions in 2006 and 2005 of a portion of the net proceeds from the sale of properties. Beginning with the November 2006 monthly distribution, distributions in the amount of a 3% annualized rate of return are based on an investment in our limited partnership units of $9.44 per unit as a result of the special distributions made in 2006 and 2005. Distributions payable at December 31, 2007 were $0.3 million.
The following are the total distributions declared during the years ended December 31, 2007 and 2006 (in thousands):
As of December 31, 2007, we had redeemed 193,349 units for $1.7 million pursuant to our unit redemption program, which was terminated by our General Partners effective December 31, 2006.
11. Related Party Arrangements
The General Partners and certain of their affiliates are entitled to receive fees and compensation in connection with the acquisition, management and sale of our assets, and have received fees in the past in connection with the Offering. Our General Partners have agreed that all of the financial benefits of serving as our general partners will be allocated to Behringer Advisors II since it is anticipated that the day-to-day responsibilities of serving as our general partner will be performed by Behringer Advisors II through the executive officers of its general partner.
During the term of the Offering, Behringer Securities LP (“Behringer Securities”), our dealer manager and a related party of our General Partners, received commissions of up to 7% of gross offering proceeds before reallowance of commissions earned by participating broker-dealers. In addition, up to 2.5% of gross proceeds before reallowance to participating broker-dealers was paid to Behringer Securities as a dealer manager fee; except that this dealer manager fee was reduced to 1% of the gross proceeds of purchases made pursuant to the distribution reinvestment feature of our DRIP, which was terminated on January 21, 2005. Behringer Securities reallowed all of its commissions to participating broker-dealers and reallowed a portion of its dealer manager fee of up to 1.5% of the gross offering proceeds to such participating broker-dealers as marketing fees and due diligence expense reimbursement. Behringer Securities did not earn selling commissions and dealer manager fees for the years ended December 31, 2007 and 2006 as a result of the termination of the Offering on February 19, 2005. For the year ended December 31, 2005, Behringer Securities earned $2.6 million in selling commissions and $1.0 million in dealer manager fees. The commissions and dealer manager fees were recorded as a reduction in Partners’ capital for the year ended December 31, 2005.
Behringer Advisors II, our general partner, or its affiliates received up to 2.5% of gross offering proceeds for reimbursement of organization and offering expenses. For the years ended December 31, 2007 and 2006, no additional
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
organization or offering expenses were incurred or reimbursed. As of December 31, 2005, approximately $2.3 million of organization and offering expenses was incurred by Behringer Advisors II on our behalf. As of December 31, 2007, all offering expenses incurred by Behringer Advisors II on our behalf had been reimbursed. Of the $2.3 million of organization and offering costs reimbursed by us as of December 31, 2007, $2,266,000 was recorded as a reduction in Partners’ capital and $19,000 was expensed as organization costs. For the year ended December 31, 2005, we reimbursed approximately $567,000 of organization and offering expenses, of which $560,000 was recorded as a reduction in Partners’ capital and $7,000 was expensed as organization costs. Behringer Advisors II or its affiliates determined the amount of organization and offering expenses owed, based on specific invoice identification as well as an allocation of costs to us and other Behringer Harvard programs, based on the respective equity offering results of those entities in offering. No further proceeds will be raised by us as a result of the termination of the Offering and, as a result, we will not make any further reimbursements to Behringer Advisors II for organization and offering expenses incurred or that may be incurred in the future on our behalf.
Behringer Advisors II or its affiliates receive acquisition and advisory fees of up to 3% of the contract purchase price of each asset for the acquisition, development or construction of real property. Behringer Advisors II or its affiliates also receive up to 0.5% of the contract purchase price of the assets acquired by us for reimbursement of expenses related to making investments. During the year ended December 31, 2007, Behringer Advisors II earned $1.0 million of acquisition and advisory fees and was reimbursed $0.2 million for acquisition-related expenses primarily related to the development of the Telluride Property. During the year ended December 31, 2006, Behringer Advisors II earned $0.2 million of acquisition and advisory fees and was reimbursed approximately $31,000 for acquisition-related expenses. During the year ended December 31, 2005, Behringer Advisors II earned $3.5 million of acquisition and advisory fees and was reimbursed $0.6 million for acquisition-related expenses.
For the management and leasing of our properties, we pay HPT Management Services LP (“HPT Management”), our property manager and an affiliate of our General Partners, property management and leasing fees equal to the lesser of: (a) the amounts charged by unaffiliated persons rendering comparable services in the same geographic area or (b)(1) for commercial properties that are not leased on a long-term net lease basis, 4.5% of gross revenues, plus separate leasing fees of up to 1.5% of gross revenues based upon the customary leasing fees applicable to the geographic location of the properties, and (2) in the case of commercial properties that are leased on a long-term net lease basis (ten or more years), 1% of gross revenues plus a one-time initial leasing fee of 3% of gross revenues payable over the first five years of the lease term. We reimburse the costs and expenses incurred by HPT Management on our behalf, including the wages and salaries and other employee-related expenses of all on-site employees of HPT Management who are engaged in the operation, management, maintenance and leasing or access control of our properties, including taxes, insurance and benefits relating to such employees, and legal, travel and other out-of-pocket expenses that are directly related to the management of specific properties. During the year ended December 31, 2007 and 2006, we incurred property management fees payable to HPT Management of $0.6 million and $0.7 million, respectively, of which approximately $50,000 is included in loss from discontinued operations for the year ended December 31, 2006. During the year ended December 31, 2005, we incurred property management fees payable to HPT Management of $0.5 million, of which $89,000 is included in loss from discontinued operations.
We pay Behringer Advisors II or its affiliates an annual asset management fee of 0.5% of the contract purchase price of our assets. Any portion of the asset management fee may be deferred and paid in a subsequent year. For the year ended December 31, 2007, asset management fees of approximately $1.0 million were waived, of which approximately $0.1 million was capitalized to real estate. During the year ended December 31, 2006, we incurred asset management fees of $0.9 million, of which approximately $27,000 was included in loss from discontinued operations and $0.3 million was capitalized to real estate. During the year ended December 31, 2005, we incurred asset management fees of $0.5 million, of which approximately $52,000 was included in loss from discontinued operations and $0.1 million was capitalized to real estate.
We will pay Behringer Advisors II or its affiliates a debt financing fee for certain debt made available to us. We incurred $0.3 million of such debt financing fees for the year ended December 31, 2006. We incurred no such debt financing fees for the years ended December 31, 2007 and 2005.
On November 9, 2007, we entered into the BHH Loan pursuant to which we may borrow a total of $10 million. The interest rate under the note is 5% per annum, with the accrued and unpaid amount of interest payable until the principal amount of each advance under the note is paid in full. We borrowed a total of $7.5 million under the note during the year ended December 31, 2007. The maturity date of all borrowings under the note is November 9, 2010, and all proceeds from such borrowings will be used for working capital purposes. On December 31, 2007, Behringer Holdings forgave all $7.5 million of principal borrowings and all accrued interest thereon.
At December 31, 2007, we had a payable to a related party of approximately $0.1 million. This balance consists of property management fees payable to HPT Management.
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
We are dependent on Behringer Advisors II and HPT Management for certain services that are essential to us, including asset acquisition and disposition decisions, property management and leasing services and other general and administrative responsibilities. In the event that these companies were unable to provide the respective services to us, we would be required to obtain such services from other sources.
12. Discontinued Operations
On July 24, 2006, we sold the Woodall Rodgers Property, which contained approximately 74,090 rentable square feet (unaudited), to an unaffiliated third party for a contract sale price of $10.5 million. We realized a gain on sale of approximately $2.8 million from the sale during the year ended December 31, 2006, which is classified as discontinued operations in the accompanying consolidated statements of operations. Proceeds from the sale were used to completely pay off the then outstanding balance on the debt associated with the Woodall Rodgers Property of approximately $4.5 million with the remaining proceeds distributed to unitholders in a special distribution in November 2006. In accordance with SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” the results of operations for the Woodall Rodgers Property are classified as discontinued operations in the accompanying consolidated statements of operations. The results for the year ended December 31, 2007 represent the final settlements for operations of the Woodall Rodgers Property. Certain amounts in the accompanying 2005 financial statements have been reclassified to conform to the current presentation. The following table summarizes the results of discontinued operations for the years ended December 31, 2007, 2006 and 2005 (in thousands):
13. Fair Value Disclosure of Financial Instruments
The following disclosure of estimated fair values was determined by us using available market information and appropriate valuation methodologies. However, considerable judgment is necessary to interpret market data and develop the related estimates of fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts that could be realized upon disposition of the financial instruments. The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated fair value amounts.
As of December 31, 2007 and 2006, management estimated the carrying value of cash and cash equivalents, restricted cash, accounts receivable, notes receivable, accounts payable, accrued expenses and other liabilities and distributions payable were at amounts that reasonably approximated their fair value based on their short-term maturities.
The notes payable totaling approximately $145.6 million as of December 31, 2007 have a fair value of approximately $144.7 million based upon interest rates for mortgages with similar terms and remaining maturities that we believe the Partnership could obtain.
The fair value estimate presented herein is based on information available to management as of December 31, 2007 and 2006. Although management is not aware of any factors that would significantly affect the estimated fair value amount, such amount has not been comprehensively revalued for purposes of these consolidated financial statements since that date, and current estimates of fair value may differ significantly from the amounts presented herein.
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
14. Income Tax Basis Net Income (Unaudited)
Our income tax basis net income for the years ended December 31, 2007, 2006 and 2005 is recalculated as follows (in thousands):
15. Quarterly Financial Data (Unaudited)
The following table presents selected unaudited quarterly financial data for each quarter during the years ended December 31, 2007 and 2006 (in thousands, except per unit amounts).
16. Subsequent Events
On January 28, 2008, Behringer Harvard Quorum I LP, the borrower, entered into a loan agreement with Sterling Bank. Borrowings under the loan agreement were $10 million. Approximately $5.1 million of the loan proceeds were used to pay off a loan to the borrower from Citibank, N.A., which was set to mature on July 1, 2008. The remaining proceeds will be used for working capital purposes. The interest rate under the loan is 7%. Monthly payments of interest only are due beginning March 5, 2008. The entire principal balance, together with all accrued, but unpaid interest is due and payable on January 23, 2011, the maturity date. The loan is guaranteed by us and the borrower.
Behringer Harvard Short-Term Opportunity Fund I LP
Notes to Consolidated Financial Statements
Given that we have fully invested all of the proceeds from the Offering, the advisory board will be dissolved effective March 31, 2008 and we will no longer be obligated to pay additional board advisory fees.
CompUSA, Inc. decided not to make scheduled rental payments on its leases at 18581 Dallas Parkway and 18451 Dallas Parkway during 2008. These leases expire in spring 2008. We expect to recover a portion of these rents from tenants who are currently subleasing space from CompUSA, Inc. We have executed a long-term direct lease for approximately 90,000 rentable square feet of 18581 Dallas Parkway to a tenant who currently subleases the space.
On March 27, 2008, we entered into the Amended and Restated Unsecured Promissory Note payable to Behringer Holdings (“Amended BHH Loan”), pursuant to which we may borrow a maximum of $20 million. We borrowed $1.0 million under the Amended BHH Loan on that same date, and we had borrowed $1.0 million on February, 14, 2008 resulting in $2.0 million principal amount outstanding under the note at March 27, 2008. This note amends and restates the BHH Loan. All amounts borrowed under the BHH Loan shall be deemed borrowed under the Amended BHH Loan. The Amended BHH Loan is unsecured and bears interest at a rate of 5% per annum, with the accrued and unpaid amount of interest payable until the principal amount of each advance under the note is paid in full. The maturity date of all borrowings under the Amended BHH Loan is March 27, 2011, and all proceeds from such borrowings will be used for working capital purposes.
******
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Partners of
Behringer Harvard Plaza Skillman LP
Addison, Texas
We have audited the accompanying statement of operations of Behringer Harvard Plaza Skillman LP (the “Partnership”) for the period from January 1, 2005 through May 22, 2005 (date prior to consolidation by the Short-Term Opportunity Fund I LP). This financial statement is the responsibility of the Partnership’s management. Our responsibility is to express an opinion on this financial statement 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 the financial statement is free of material misstatement. The Partnership is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Partnership’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, such financial statement presents fairly, in all material respects, the results of the Partnership’s operations for the period from January 1, 2005 through May 22, 2005 (date prior to consolidation by the Short-Term Opportunity Fund I LP), in conformity with accounting principles generally accepted in the United States of America.
/s/ Deloitte & Touche LLP
Dallas, Texas
April 2,
Behringer Harvard Plaza Skillman LP
Statement of Operations
(in thousands)
See Notes to Financial Statements.
Behringer Harvard Plaza Skillman LP
Notes to Financial Statements
1. Organization
Behringer Harvard Plaza Skillman LP (which may be referred to as the “Partnership,” “we,” “us,” or “our”) was formed as a Texas limited partnership on July 23, 2004 in accordance with the terms and provisions of the Partnership’s limited partnership agreement (the “Partnership Agreement”). Behringer Harvard Plaza Skillman GP LLC (the “General Partner”), a wholly-owned subsidiary of Behringer Harvard Short-Term Opportunity Fund I LP (the “Fund”), is the General Partner of the Partnership. The Fund and Audelia Plaza, Ltd. (“Audelia”) are both Class A limited partners of the Partnership and have an approximate 86% and 14% interest in the Partnership, respectively. Dunhill Partners, Inc. (“Dunhill”) is the sole Class B limited partner of the Partnership.
The Partnership was formed for the purpose of owning and holding for investment a neighborhood shopping/service center containing approximately 98,764 rentable square feet (unaudited), located on 7.3 acres of land (unaudited) at the southeast corner of Skillman Street and Audelia Road in Dallas, Texas (the “Property”).
On May 23, 2005, the Fund purchased the 14.29% interest in the Partnership from Audelia, resulting in the Fund’s 100% direct ownership and consolidation of the Property with and into the Fund’s consolidated accounts subsequent to that date. The Partnership financial statements are included herein up to the date of consolidation by the Fund.
The Partnership shall continue until December 31, 2053, unless the partners elect to terminate the Partnership prior to that date.
2. Summary of Significant Accounting Policies
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. These estimates include such items as purchase price allocation for real estate acquisitions, impairment of long-lived assets, depreciation and amortization and allowance for doubtful accounts. Actual results could differ from those estimates.
Real Estate
Upon the acquisition of the Property, we allocated the purchase price to the tangible assets acquired, consisting of land and building, identified intangible assets and assumed liabilities based on their relative fair values in accordance with Statement of Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible Assets.” Identified intangible assets consisted of the fair value of above-market and below-market leases, in-place leases, in-place tenant improvements and tenant relationships. Initial valuations were subject to change until our information was finalized, which was no later than 12 months from the acquisition date.
The fair value of the tangible assets acquired, consisting of the land and building, was determined by valuing the property as if it were vacant, and the “as-if-vacant” value was then allocated to the land and building. The land value was derived from an appraisal, and the building value was calculated as replacement cost less depreciation or management’s estimates of the relative fair value of these assets using discounted cash flow analyses or similar methods. The value of the commercial office buildings is being depreciated over the estimated useful life of 25 years using the straight-line method.
We determined the value of above-market and below-market in-place leases for acquired properties based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (1) the contractual amounts to be paid pursuant to the in-place leases and (2) management’s estimate of current market lease rates for the corresponding in-place leases, measured over a period equal to the determined lease term. We recorded the fair value of above-market and below-market leases as intangible assets or intangible liabilities, respectively, and amortize them as an adjustment to rental income over the determined lease term.
The total value of identified real estate intangible assets acquired were further allocated to in-place lease values and tenant relationships based on our evaluation of the specific characteristics of each tenant’s lease and our overall relationship with that respective tenant. The aggregate value of in-place leases acquired and tenant relationships was determined by applying a fair value model. The estimates of fair value of in-place leases included an estimate of carrying costs during the expected lease-up periods for the respective spaces, considering current market conditions. In estimating fair value of in-place leases, we considered items such as real estate taxes, insurance and other operating expenses, as well as lost rental revenue during the expected lease-up period and carrying costs that would have otherwise been incurred had the leases not been in place, including tenant improvements and commissions. The estimates of the fair value of tenant relationships also
Behringer Harvard Plaza Skillman LP
Notes to Financial Statements
included costs to execute similar leases, including leasing commissions, legal costs and tenant improvements as well as an estimate of the likelihood of renewal as determined by management on a tenant-by-tenant basis.
We determined the fair value of assumed debt by calculating the net present value of the scheduled note payments using interest rates for debt with similar terms and remaining maturities that we believe we could obtain. Any difference between the fair value and stated value of the assumed debt was recorded as a premium and amortized over the remaining life of the loan.
We amortize the value of in-place leases to expense over the term of the respective leases. The value of tenant relationship intangibles is amortized to expense over the initial term and any anticipated renewal periods, but in no event does the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and tenant relationship intangibles is charged to expense.
Impairment of Long-Lived Assets
Management monitors events and changes in circumstances indicating that the carrying amounts of the real estate assets may not be recoverable. When such events or changes in circumstances occur, we assess potential impairment by comparing estimated future undiscounted operating cash flows expected to be generated over the life of the asset, including its eventual disposition, to the carrying amount of the asset. In the event that the carrying amount exceeds the estimated future undiscounted operating cash flows, we recognize an impairment loss to adjust the carrying amount of the asset to estimated fair value.
For real estate owned by us at each reporting date, management compares the estimated fair value of its investment to the carrying value. An impairment charge is recorded to the extent that the fair value of the investment is less than the carrying amount and the decline in value is determined to be other than a temporary decline. There were no impairment charges during the period from and January 1, 2005 through May 22, 2005.
Deferred Financing Fees
Deferred financing fees are recorded at cost and are amortized using a straight-line method that approximates the effective interest method over the life of the related debt.
Revenue Recognition
We recognize rental income generated from leases on real estate assets on the straight-line basis over the terms of the respective leases, including the effect of rent holidays, if any. The total net increase to rental revenues due to straight-line rent adjustments for the period from January 1, 2005 through May 22, 2005 was approximately $5,000. As discussed above, our rental revenue also includes amortization of above and below market leases. Any payments made to tenants that are considered lease incentives or inducements are being amortized to revenue over the life of the respective leases. Revenues relating to lease termination fees are recognized at the time that a tenant’s right to occupy the space is terminated and when we have satisfied all obligations under the agreement.
Income Taxes
We are not a taxpaying entity and, accordingly, record no income taxes. The partners are individually responsible for reporting their share of our taxable income or loss on their income tax returns.
Certain of our transactions may be subject to accounting methods for income tax purposes that differ from the accounting methods used in preparing these financial statements in accordance with GAAP. Accordingly, our net income or loss and the resulting balances in the partners’ capital accounts reported for income tax purposes may differ from the balances reported for those same items in the accompanying financial statements.
3. Partners’ Capital
Income and Loss Allocation
In accordance with the Partnership Agreement, profits and losses for each fiscal year are allocated among the partners so as to reduce, proportionately, in the case of any profits, the difference between their respective target account (the hypothetical amount that each partner would receive upon the liquidation of the Partnership, as defined by the Partnership agreement) and their partially adjusted capital accounts (the capital account of each partner at the beginning of the year, adjusted for allocations of items of income, gain, loss or deduction not included in the current year income allocation and all capital contributions and distributions during such period for such fiscal year, as defined by the Partnership Agreement) and, in the case of losses, the difference between their respective partially adjusted capital accounts and target accounts for such fiscal year.
Behringer Harvard Plaza Skillman LP
Notes to Financial Statements
Distributions
Within twenty (20) days following the end of each month (unless otherwise approved by a Partnership vote), the Partnership distributes excess cash (as defined by the Partnership Agreement) in the following order of priority:
· First, to the General Partner and the Class A limited partners in proportion to their respective Additional Capital Contribution Account balances (as defined by the Partnership Agreement) until their respective Additional Capital Contribution Account balances are reduced to zero;
· Next, to the General Partner and the Class A limited partners in proportion to their respective Initial Capital Contribution Account balances until their respective Initial Capital Contribution Account balances (as defined by the Partnership Agreement) are reduced to zero;
· Next, to the General Partner and the Class A limited partner, pro rata in accordance with their Residual Percentages (as defined by the Partnership Agreement) until the General Partner and the Class A limited partners have received distributions sufficient to provide an internal rate of return of fifteen percent (15%) to such partners;
· Next, seventy five percent (75%) to the General Partner and the Class A limited partners pro rata in accordance with their Residual Percentages (as defined by the Partnership Agreement), and twenty five percent (25%) to the Class B limited partner, until the General Partner and the Class A limited partners have received distributions sufficient to provide an internal rate of return of twenty percent (20%) to such partners; and
· Thereafter, fifty percent (50%) to the General Partner and the Class A limited partners pro rata in accordance with their Residual Percentages (as defined by the Partnership Agreement), and fifty percent (50%) to the Class B limited partner.
4. Related Party Transactions
HPT Management Services LP (the “Property Manager”), an affiliate of the Partnership, has the sole and exclusive right to manage, operate, lease, and supervise the overall maintenance of the Property. Under the terms of the management agreement, the Property Manager receives a property management fee equal to 4.5% of the monthly gross cash rents received by the Partnership. The management agreement with the Property Manager will continue until June 2, 2010 and thereafter for successive seven-year renewal periods, unless the Property Manager notifies the Partnership of their intent to terminate the agreement. The Property Manager has subcontracted certain of its on-site management services to unrelated third-parties. Total management fees earned by the Property Manager from January 1, 2005 through May 22, 2005 were approximately $28,000.
The Partnership also pays Behringer Advisors II LP (“Advisors II”) an affiliate of the Partnership, an annual advisor asset management fee of 0.5% of the aggregate value of the assets of the Partnership. Total asset management fees earned by Advisors II during the period from January 1, 2005 through May 22, 2005 were approximately $28,000.
5. Leasing Activities
The Partnership leases the Property to tenants under operating leases. Future minimum base rental payments due to us over the next five years under non-cancelable leases in effect as of May 22, 2005 are as follows (in thousands):
One tenant accounted for greater than 10% of rental revenue for the period from January 1, 2005 through May 22, 2005 with rent totaling approximately $198,000 and occupying approximately 16% of the rentable space in the building.
******
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Partners of
Behringer Harvard 4245 Central LP
Addison, Texas
We have audited the accompanying statement of operations of Behringer Harvard 4245 Central LP (the “Partnership”) for the period from January 1, 2005 through October 30, 2005 (date prior to consolidation by the Short-Term Opportunity Fund I LP). This financial statement is the responsibility of the Partnership’s management. Our responsibility is to express an opinion on this statement 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 the financial statement is free of material misstatement. The Partnership is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Partnership’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, such financial statement presents fairly, in all material respects, the results of the Partnership’s operations for the period from January 1, 2005 through October 30, 2005 (date prior to consolidation by the Short-Term Opportunity Fund I LP), in conformity with accounting principles generally accepted in the United States of America.
/s/ Deloitte & Touche LLP
Dallas, Texas
April 2, 2007
Behringer Harvard 4245 Central LP
Statement of Operations
(in thousands)
See Notes to Financial Statements.
Behringer Harvard 4245 Central LP
Notes to Financial Statements
1. Organization
Behringer Harvard 4245 Central LP (the “Partnership”) was formed as a Texas limited partnership on July 12, 2004 in accordance with the terms and provisions of the Partnership’s limited partnership agreement (the “Partnership Agreement”). Behringer Harvard 4245 Central GP, LLC (the “General Partner”), a wholly-owned subsidiary of Behringer Harvard Short-Term Opportunity Fund I LP (the “Fund”), is the general partner of the Partnership with a 0.1% ownership interest in the Partnership. The limited partners of the Partnership were the Fund, Realty America Group (4245 Central), LP (“RAG”), HSAD Partners and BGO Investments, with ownership interests in and initial distribution rates of 49.9%, 37.5%, 6.25% and 6.25%, respectively.
The Partnership was formed for the purpose of owning and holding for investment a six-story office building containing approximately 87,292 rentable square feet (unaudited), located on approximately 0.66 acres of land (unaudited) just north of downtown Dallas, Texas (the “Property”). The office building was purchased on August 17, 2004.
On September 21, 2005, the Fund entered into an agreement with HSAD Partners, pursuant to which HSAD Partners assigned their 6.25% interest in the Partnership to the Fund, effective August 31, 2005. The Fund also acquired the 6.25% interest of BGO Investments on October 31, 2005, resulting in the Fund’s 62.5% ownership of the Partnership and consolidation of the Property’s results with and into the Fund’s consolidated accounts subsequent to October 31, 2005. The Partnership financial statements included herein are up to the date of consolidation by the Fund.
The Partnership shall continue until December 31, 2054, unless the partners elect to terminate the Partnership prior to that date.
2. Summary of Significant Accounting Policies
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. These estimates include such items as purchase price allocation for real estate acquisitions, impairment of long-lived assets, depreciation and amortization and allowance for doubtful accounts. Actual results could differ from those estimates.
Real Estate
Upon the acquisition of the Property, we allocated the purchase price to the tangible assets acquired, consisting of land and building, identified intangible assets and assumed liabilities based on their relative fair values in accordance with Statement of Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible Assets.” Identified intangible assets consisted of the fair value of above-market and below-market leases, in-place leases, in-place tenant improvements and tenant relationships. Initial valuations were subject to change until our information was finalized, which was no later than 12 months from the acquisition date.
The fair value of the tangible assets acquired, consisting of land and buildings, was determined by valuing the property as if it were vacant, and the “as-if-vacant” value was then allocated to land and building. The land value was derived from an appraisal, and the building value was calculated as replacement cost less depreciation or management’s estimate of the relative fair value of these assets using discounted cash flow analyses or similar methods. The value of the commercial office building is being depreciated over the estimated useful life of 25 years using the straight-line method.
We determined the value of above-market and below-market in-place leases for the Property based on the present value (using an interest rate that reflects the risks associated with the leases acquired) of the difference between (1) the contractual amounts to be paid pursuant to the in-place leases and (2) management’s estimate of current market lease rates for the corresponding in-place leases, measured over a period equal to the determined lease term. We recorded the fair value of above-market and below-market leases as intangible assets or intangible liabilities, respectively, and amortize them as an adjustment to rental income over the determined lease term.
The total value of identified real estate intangible assets acquired was further allocated to in-place lease values and tenant relationships based on our evaluation of the specific characteristics of each tenant’s lease and our overall relationship with that respective tenant. The aggregate value of in-place leases acquired and tenant relationships was determined by applying a fair value model. The estimates of fair value of in-place leases include an estimate of carrying costs during the expected lease-up periods for the respective spaces, considering current market conditions. In estimating fair value of in-place leases, we considered items such as real estate taxes, insurance and other operating expenses, as well as lost rental revenue during the expected lease-up period and carrying costs that would have otherwise been incurred had the leases not
Behringer Harvard 4245 Central LP
Notes to Financial Statements
been in place, including tenant improvements and commissions. The estimates of the fair value of tenant relationships also included costs to execute similar leases, including leasing commissions, legal costs and tenant improvements as well as an estimate of the likelihood of renewal as determined by management on a tenant-by-tenant basis.
We amortize the value of in-place leases to expense over the term of the respective leases. The value of tenant relationship intangibles is amortized to expense over the initial term and any anticipated renewal periods, but in no event does the amortization period for intangible assets exceed the remaining depreciable life of the building. Should a tenant terminate its lease, the unamortized portion of the in-place lease value and tenant relationship intangibles would be charged to expense.
Impairment of Long-Lived Assets
Management monitors events and changes in circumstances indicating that the carrying amounts of the real estate assets may not be recoverable. When such events or changes in circumstances occur, we assess potential impairment by comparing estimated future undiscounted operating cash flows expected to be generated over the life of the asset, including its eventual disposition, to the carrying amount of the asset. In the event that the carrying amount exceeds the estimated future undiscounted operating cash flows, we recognize an impairment loss to adjust the carrying amount of the asset to estimated fair value.
For real estate owned by us at each reporting date, management compares the estimated fair value of its investment to the carrying value. An impairment charge is recorded to the extent that the fair value of the investment is less than the carrying amount and the decline in value is determined to be other than a temporary decline. There were no impairment charges during the period from January 1, 2005 through October 30, 2005.
Deferred Financing Fees
Deferred financing fees are recorded at cost and are amortized using a straight-line method that approximates the effective interest method over the life of the related debt.
Revenue Recognition
We recognize rental income generated from leases on real estate assets on the straight-line basis over the terms of the respective leases, including the effect of rent holidays, if any. The total net increase to rental revenues due to straight-line rent adjustments for the period from January 1, 2005 through October 30, 2005 was approximately $12,000. As discussed above, our rental revenue also includes amortization of above and below market leases. Any payments made to tenants that are considered lease incentives or inducements are being amortized to revenue over the life of the respective leases. Revenues relating to lease termination fees are recognized at the time that a tenant’s right to occupy the space is terminated and when we have satisfied all obligations under the agreement.
Income Taxes
We are not a taxpaying entity and, accordingly, record no income taxes. The partners are individually responsible for reporting their share of our taxable income or loss on their income tax returns.
Certain of our transactions may be subject to accounting methods for income tax purposes that differ from the accounting methods used in preparing these financial statements in accordance with GAAP. Accordingly, our net income or loss and the resulting balances in the partners’ capital accounts reported for income tax purposes may differ from the balances reported for those same items in the accompanying financial statements.
3. Partners’ Capital
Income and Loss Allocation
In accordance with the Partnership Agreement, profits and losses for each fiscal year are allocated among the partners so as to reduce, proportionately, in the case of any profits, the difference between their respective target account (the hypothetical amount that each partner would receive upon the liquidation of the Partnership, as defined by the Partnership Agreement) and their partially adjusted capital accounts (the capital account of each partner at the beginning of the year, adjusted for allocations of items of income, gain, loss or deduction not included in the current year income allocation and all capital contributions and distributions during such period for such fiscal year, as defined by the Partnership Agreement) and, in the case of losses, the difference between their respective partially adjusted capital accounts and target accounts for such fiscal year.
Behringer Harvard 4245 Central LP
Notes to Financial Statements
Distributions
Within twenty (20) days following the end of each month (unless otherwise approved by a Partnership vote), the Partnership distributes excess cash (as defined by the Partnership Agreement) in the following order of priority:
· First, to the Partners in proportion to their respective Additional Capital Contribution Account balances (as defined by the Partnership Agreement) until their respective Additional Capital Account balances are reduced to zero;
· Next, to the partners in proportion to their respective Initial Capital Contribution Account balances (as defined by the Partnership Agreement) until their respective Initial Capital Contribution Account balances are reduced to zero;
· Next, to the partners, pro rata in accordance with their Residual Percentages (as defined by the Partnership Agreement) until the partners have received distributions sufficient to provide the threshold return to such partners; and
· Thereafter, to the partners, pro rata in accordance with their Residual Percentages.
4. Related Party Transactions
HPT Management Services LP (the “Property Manager”), an affiliate of the Partnership, has the sole and exclusive right to manage, operate, lease, and supervise the overall maintenance of the Property. Under the terms of the management agreement, the Property Manager receives a property management fee equal to 4.5% of the monthly gross cash rents received by the Partnership. The management agreement with the Property Manager will continue until June 2, 2010 and thereafter for successive seven year renewal periods, unless the Property Manager notifies the Partnership of their intent to terminate the agreement. Total management fees earned by the Property Manager for the period from January 1, 2005 through October 30, 2005 were approximately $33,000.
The Property also pays Behringer Advisors II LP (“Advisors II”) an affiliate of the Partnership, an annual advisor asset management fee of 0.5% of the aggregate value of the assets of the Partnership. Total asset management fees earned by Advisors II during the period from January 1, 2005 through October 30, 2005 were approximately $35,000.
5. Leasing Activities
Future minimum base rental payments due to us under noncancelable leases for tenants occupying space at October 30, 2005, excluding tenant reimbursements for increases in operating expenses, are as follows (in thousands):
Two tenants accounted for greater than 10% of rental revenue for the period from January 1, 2005 through October 30, 2005, with rents totaling approximately $258,000 and occupying approximately 17% of rentable space in the building.
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Partners of
Behringer Harvard Short-Term Opportunity Fund I LP
Addison, Texas
We have audited the consolidated financial statements of Behringer Harvard Short-Term Opportunity Fund I LP and subsidiaries (the “Partnership”) as of December 31, 2007 and 2006, and for each of the three years in the period ended December 31, 2007, and have issued our report thereon dated March 31, 2008; such financial statements and report are included elsewhere in this Form 10-K. Our audits also included the consolidated financial statement schedules of the Partnership listed in Item 15. The financial statement schedules are the responsibility of the Partnership’s management. Our responsibility is to express an opinion based on our audits. In our opinion, such consolidated financial statement schedules, when considered in relation to the basic consolidated financial statements taken as a whole, present fairly, in all material respects, the information set forth therein.
/s/ Deloitte & Touche LLP
Dallas, Texas
March 31, 2008
Behringer Harvard Short-Term Opportunity Fund I LP
Valuations and Qualifying Accounts
Schedule II
(in thousands)
Behringer Harvard Short-Term Opportunity Fund I LP
Real Estate and Accumulated Depreciation
Schedule III
December 31, 2007
(in thousands)
(1) Buildings are 25 years
(2) Includes unamortized premium of $0.4 million
(3) Transferred to condominium inventory
(4) Hotel is 39 years
(5) Includes properties under development
(6) Land only
A summary of activity for real estate and accumulated depreciation for the years ended December 31, 2007, 2006 and 2005 is as follows (in thousands):
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Index to Exhibits
Exhibit Number
Description
3.1
Amended and Restated Agreement of Limited Partnership of Registrant dated September 15, 2003 (previously filed and incorporated by reference to Post-Effective Amendment No. 3 to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed May 11, 2004)
3.2
First Amendment to Amended and Restated Agreement of Limited Partnership of the Registrant dated March 29, 2006 (previously filed and incorporated by reference to Form 8-K filed March 30, 2006)
3.3
Certificate of Limited Partnership of Registrant (previously filed and incorporated by reference to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed on September 27, 2002)
4.1
Form of Subscription Agreement and Subscription Agreement Signature Page (previously filed in and incorporated by reference to Exhibit C to Supplement No. 1 to the prospectus of the Registrant contained within Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed June 3, 2003)
10.1
Amended and Restated Property Management and Leasing Agreement between Registrant and HPT Management Services LP (previously filed and incorporated by reference to Post-Effective Amendment No. 4 to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed on June 30, 2004)
10.2
Loan Agreement by and between First American Bank, SSB and Behringer Harvard Quorum I LP with respect to 5050 Quorum (previously filed and incorporated by reference to Post-Effective Amendment No. 5 to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed on September 30, 2004)
10.3
Deed of Trust with respect to 5050 Quorum (previously filed and incorporated by reference to Post-Effective Amendment No. 5 to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed on September 30, 2004)
10.4
Loan Assumption and Substitution Agreement with respect to Plaza Skillman (previously filed and incorporated by reference to Post-Effective Amendment No. 5 to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed on September 30, 2004)
10.5
Loan Agreement between Behringer Harvard 4245 Central LP and Bank of America, N.A. with respect to 4245 N. Central (previously filed and incorporated by reference to Post-Effective Amendment No. 5 to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed on September 30, 2004)
10.6
Deed of Trust with respect to 4245 N. Central (previously filed and incorporated by reference to Post-Effective Amendment No. 5 to Registrant’s Registration Statement on Form S-11, Commission File No. 333-100125, filed on September 30, 2004)
10.7
Loan Agreement between Washington Mutual Bank, FA and Behringer Harvard 1221 Coit LP regarding 1221 Coit Road (previously filed and incorporated by reference to Form 8-K filed on October 8, 2004)
10.8
Promissory Note made by Behringer Harvard 1221 Coit LP to Washington Mutual Bank, FA regarding 1221 Coit Road (previously filed and incorporated by reference to Form 8-K filed on October 8, 2004)
10.9
Deed of Trust and Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing by Behringer Harvard 1221 Coit LP in favor of Mark C. McElree, as trustee, and Washington Mutual Bank, FA regarding 1221 Coit Road (previously filed and incorporated by reference to Form 8-K filed on October 8, 2004)
10.10
Repayment Guaranty made by Registrant in favor of Washington Mutual Bank, FA regarding 1221 Coit Road (previously filed and incorporated by reference to Form 8-K filed on October 8, 2004)
10.11
Loan Agreement made between Texans Commercial Capital, LLC and Behringer Harvard Mockingbird Commons LP regarding Hotel Palomar and Residences (previously filed and incorporated by reference to Form 10-Q for the period ended September 30, 2004)
10.12
Guaranty Agreement made by Registrant to Texans Commercial Capital, LLC regarding Hotel Palomar and Residences (previously filed and incorporated by reference to Form 10-Q for the period ended September 30, 2004)
10.13
Deed of Trust, Security Agreement and Financing Statement by Behringer Harvard Mockingbird Commons LP, as grantor, to Gerald W. Gurney and/or John C. O’Shea as Trustee for the benefit of Texans Commercial Capital, LLC regarding Hotel Palomar and Residences (previously filed and incorporated by reference to Form 10-Q for the period ended September 30, 2004)
10.14
Guaranty Agreement made between Behringer Harvard 250/290 Carpenter LP in favor of Bank of America, N.A. (previously filed and incorporated by reference to Form 8-K filed September 8, 2005)
10.15
Deed of Trust, Assignment of Rents and Leases, Security Agreement Fixture Filing and Financing Statement by Behringer Harvard 250/290 Carpenter LP, as grantor, to PRLP, Inc. as trustee for the benefit of Bank of America, N.A. (previously filed and incorporated by reference to Form 8-K filed September 8, 2005)
10.16
Promissory Note made between Registrant and Bank of America, N.A. (previously filed and incorporated by reference to Form 8-K filed September 8, 2005)
10.17
Credit Agreement between Bank of America, N.A. and Registrant and Behringer Harvard 250/290 Carpenter LP (previously filed and incorporated by reference to Form 8-K Filed September 8, 2005)
10.18
Limited Guaranty made by Registrant in favor of State Farm Bank, F.S.B. regarding 18581 North Dallas Parkway and 18451 North Dallas Parkway (previously filed and incorporated by reference to Form 8-K filed September 14, 2005)
10.19
Deed of Trust and Security Agreement by Behringer Harvard Landmark LP, as grantor, to Alfred G. Kyle, as trustee, for the benefit of State Farm Bank, F.S.B. regarding 18581 North Dallas Parkway and 18451 North Dallas Parkway (previously filed and incorporated by reference to Form 8-K filed September 14, 2005)
10.20
Assignment and Subordination of Management Agreement by Behringer Harvard Landmark, LP in favor of State Farm Bank, F.S.B. regarding 18581 North Dallas Parkway and 18451 North Dallas Parkway (previously filed and incorporated by reference to Form 8-K filed September 14, 2005)
10.21
Assignment of Rents and Leases by Behringer Harvard Landmark LP in favor of State Farm Bank, F.S.B. regarding 18581 North Dallas Parkway and 18451 North Dallas Parkway (previously filed and incorporated by reference to Form 8-K filed September 14, 2005)
10.22
Promissory Note made between Behringer Harvard Landmark LP and State Farm Bank, F.S.B. regarding 18581 North Dallas Parkway and 18451 North Dallas Parkway (previously filed and incorporated by reference to Form 8-K filed September 14, 2005)
10.23
Construction Loan Agreement between Behringer Harvard Mockingbird Commons LP and Texans Commercial Capital, LLC regarding Hotel Palomar and Residences (previously filed and incorporated by reference to Form 8-K filed October 11, 2005)
10.24
Deed of Trust, Security Agreement and Assignment of Rents, Leases, Incomes and Agreements by BHDGI, Ltd., as grantor, to Robert Wightman, as trustee, for the benefit of Dallas City Bank regarding Melissa Land (previously filed and incorporated by reference to Form 8-K filed October 12, 2005)
10.25
Guaranty Agreement made between Registrant and Dallas City Bank regarding Melissa Land (previously filed and incorporated by reference to Form 8-K filed October 12, 2005)
10.26
Promissory Note made between BHDGI, Ltd. and Dallas City Bank regarding Melissa Land (previously filed and incorporated by reference to Form 8-K filed October 12, 2005)
10.27
Loan Agreement by and between Dallas City Bank and BHDGI, Ltd. and Registrant regarding Melissa Land (previously filed and incorporated by reference to Form 8-K filed October 12, 2005)
10.28
Construction Loan Agreement by and between Behringer Harvard Mountain Village, LLC and Texans Commercial Capital, LLC regarding Cassidy Ridge (previously filed and incorporated by reference to Form 8-K filed October 18, 2006)
10.29
Promissory Note made between Registrant and Texans Commercial Capital, LLC regarding Cassidy Ridge (previously filed and incorporated by reference to Form 8-K filed October 18, 2006)
10.30
Guaranty Agreement made between Registrant and Texans Commercial Capital, LLC regarding Cassidy Ridge (previously filed and incorporated by reference to Form 8-K filed October 18, 2006)
10.31
Deed of Trust, Security Agreement, Financing Statement and Assignment of Rental by Behringer Harvard Mountain Village, LLC, as grantor, to the Public Trustee of San Miguel County, Colorado, as trustee, for the benefit of Texans Commercial Capital, LLC regarding Cassidy Ridge (previously filed and incorporated by reference to Form 8-K filed October 18, 2006)
10.32
Loan Agreement by and between Behringer Harvard Mockingbird Commons, LLC and Bank of America, N.A. (previously filed in and incorporated by reference to Form 8-K filed on September 12, 2007)
10.33
Deed of Trust Note made between Behringer Harvard Mockingbird Commons, LLC and Bank of America, N.A. (previously filed in and incorporated by reference to Form 8-K filed on September 12, 2007)
10.34
Guaranty Agreement made between Registrant and Bank of America, N.A. (previously filed in and incorporated by reference to Form 8-K filed on September 12, 2007)
10.35
Deed of Trust, Security Agreement, Fixture Filing and Financing Statement by Behringer Harvard Mockingbird Commons, LLC, as grantor, to PLRAP, Inc., as trustee, for the benefit of Bank of America, N.A. (previously filed in and incorporated by reference to Form 8-K filed on September 12, 2007)
10.36
Assignment of Rents, Leases and Receivables by Behringer Harvard Mockingbird Commons, LLC to Bank of America, N.A. (previously filed in and incorporated by reference to Form 8-K filed on September 12, 2007)
21.1*
List of Subsidiaries
31.1*
Rule 13a-14(a) or Rule 15d-14(a) Certification
31.2*
Rule 13a-14(a) or Rule 15d-14(a) Certification
32.1*
Section 1350 Certifications
*filed herewith