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| HRP > SEC Filings for HRP > Form 8-K on 9-Jun-2009 | All Recent SEC Filings |
9-Jun-2009
Other Events, Financial Statements and Exhibits
As we, HRPT Properties Trust, or HRPT, previously reported, our wholly-owned subsidiary, Government Properties Income Trust, or GOV, filed a registration statement with the Securities and Exchange Commission, or SEC, for the initial public offering, or IPO, of 10 million common shares of beneficial interest, or common shares. The GOV registration statement was declared effective by the SEC on June 2, 2009 and the IPO was completed on June 8, 2009. As a result, our percentage ownership of GOV was reduced from 100% to 49.9% of the outstanding GOV common shares (46.4% if the underwriters' over allotment option is exercised in full). Prior to the IPO, we transferred to GOV in April 2009, 29 properties, or the GOV Properties, 25 of which are leased primarily to the U.S. Government and four of which are leased to the States of California, Maryland, Minnesota and South Carolina. The GOV Properties contain approximately 3.3 million rentable square feet and are located in 14 states and the District of Columbia.
To govern the separation of GOV from us, we entered into a transaction agreement, or the Transaction Agreement, with GOV on June 8, 2009, which provides:
† that the current assets and liabilities from the GOV Properties, as of the time of closing of the IPO, were settled between us and GOV so that we retained all pre-closing current assets and liabilities and GOV retained all post-closing current assets and liabilities;
† that GOV will indemnify us with respect to any liability relating to any GOV Property, including liabilities which arose before GOV's formation; and
† that so long as we own in excess of 10% of GOV's outstanding common shares, we and GOV engage the same manager or we and GOV have any common managing trustees, (1) we will not acquire ownership (including fee interest, leaseholds, joint ventures, mortgages or other real estate assets) of properties which are majority leased to government tenants, unless a majority of GOV's independent trustees who are not also trustees of ours have determined not to make the acquisition, (2) GOV will not acquire ownership (including fee interest, leaseholds, joint ventures, mortgages or other real estate assets) of office or industrial properties which are not majority leased to government tenants, unless a majority of our independent trustees who are not also trustees of GOV have determined not to make the acquisition, (3) GOV will have a right of first refusal to purchase any property owned by us that we determine to divest if the property is then majority leased to government tenants, which right of first refusal will also apply in the event of an indirect sale of any such properties resulting from a change of control of us, (4) GOV and we will cooperate to enforce the ownership limitations in our and its respective declarations of trust as may be appropriate for each of us to qualify for and maintain tax status as a real estate investment trust, or REIT, and otherwise to promote our respective orderly governance, and (5) we and GOV will cooperate to file
future tax returns, including appropriate allocations of taxable income, expenses and other tax attributes.
The above restrictions will not prohibit us from leasing our current and future properties to government tenants.
In connection with the closing of the IPO, on June 8, 2009, we also entered into an amended and restated business management agreement, or the Management Agreement, with Reit Management & Research LLC, or RMR, our manager. As a result of this amendment, our management fees to RMR have been reduced by the amount of fees that we currently pay on the GOV Properties.
The descriptions of the Transaction Agreement and the Management Agreement are qualified in their entirety by reference to the copies of the Management Agreement and the Transaction Agreement, which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
The following summary of federal income tax considerations relating to HRPT and its shareholders supersedes the description of these matters in our annual report for the year ended December 31, 2008. Our counsel, Sullivan & Worcester LLP, Boston, Massachusetts, has rendered a legal opinion that the discussion in this section is accurate in all material respects and fairly summarizes the federal income tax issues related to HRPT, and that the opinions of counsel referred to in this section represent Sullivan & Worcester LLP's opinions on these subjects. Specifically, subject to the qualifications and assumptions contained in its opinions and in this Current Report on Form 8-K, which we refer to as this Current Report, Sullivan & Worcester LLP has rendered opinions to the effect:
† that we have been organized and have qualified as a REIT under the Internal Revenue Code of 1986, as amended, or the IRC, for our 1987 through 2008 taxable years, and that our current investments and plan of operation enable us to continue to meet the requirements for qualification and taxation as a REIT under the IRC; however, our continued qualification and taxation as a REIT will depend upon our compliance with various qualification tests imposed under the IRC and summarized below; and
† that beginning with its taxable year that commenced upon the date of GOV's initial sale of shares for cash, GOV has been organized in conformity with the requirements for qualification as a REIT under the IRC, and that GOV's current investments and plan of operation enable it to continue to meet the requirements for qualification and taxation as a REIT under the IRC; however, GOV's continued qualification and taxation as a REIT will depend upon its compliance with the various qualification tests imposed under the IRC.
While we believe that we will satisfy the applicable REIT tests under the IRC at all times, our counsel has not reviewed and will not review compliance with these tests on a continuing basis. If we fail to qualify as a REIT, we will be subject to federal income taxation as if we were a
C corporation and our shareholders will be taxed like shareholders of C corporations. In this event, we could be subject to significant tax liabilities, and the amount of cash available for distribution to our shareholders may be reduced or eliminated.
The following summary of federal income tax considerations is based on existing law, and is limited to investors who own our shares as investment assets rather than as inventory or as property used in a trade or business. The summary does not discuss all of the particular tax consequences that might be relevant to you if you are subject to special rules under federal income tax law, for example if you are:
† a bank, life insurance company, regulated investment company, or other financial institution;
† a broker, dealer or trader in securities or foreign currency;
† a person who has a functional currency other than the U.S. dollar;
† a person who acquires our shares in connection with employment or other performance of services;
† a person subject to alternative minimum tax;
† a person who owns our shares as part of a straddle, hedging transaction, constructive sale transaction, constructive ownership transaction, or conversion transaction; or
† except as specifically described in the following summary, a tax-exempt entity or a foreign person.
The IRC sections that govern federal income tax qualification and treatment of a REIT and its shareholders are complex. This presentation is a summary of applicable IRC provisions, related rules and regulations, and administrative and judicial interpretations, all of which are subject to change, possibly with retroactive effect. Future legislative, judicial, or administrative actions or decisions could also affect the accuracy of statements made in this summary. We have not received a ruling from the Internal Revenue Service, or IRS, with respect to any matter described in this summary, and we cannot assure you that the IRS or a court will agree with the statements made in this summary. The IRS or a court could, for example, take a different position, which could result in significant tax liabilities for applicable parties, from that described in this summary with respect to our acquisitions, operations, restructurings or any other matters described in this summary. In addition, this summary is not exhaustive of all possible tax consequences, and does not discuss any estate, gift, state, local, or foreign tax consequences. For all these reasons, we urge you and any prospective acquiror of our shares to consult with a tax advisor about the federal income tax and other tax consequences of the acquisition, ownership and disposition of our shares. Our intentions and beliefs described in this summary are based upon our understanding of applicable laws and regulations that are in effect as of the date of this Current Report. If new laws or regulations are enacted which impact us directly or indirectly, we may change our intentions or beliefs.
Your federal income tax consequences may differ depending on whether or not you are a "U.S. shareholder." For purposes of this summary, a "U.S. shareholder" for federal income tax purposes is:
† a citizen or resident of the United States, including an alien individual who is a lawful permanent resident of the United States or meets the substantial presence residency test under the federal income tax laws;
† an entity treated as a corporation for federal income tax purposes, that is created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
† an estate the income of which is subject to federal income taxation regardless of its source; or
† a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust, or an electing trust in existence on August 20, 1996, to the extent provided in Treasury regulations;
whose status as a U.S. shareholder is not overridden by an applicable tax treaty. Conversely, a "non-U.S. shareholder" is a beneficial owner of our shares who is not a U.S. shareholder. If a partnership (including any entity treated as a partnership for federal income tax purposes) is a beneficial owner of our shares, the tax treatment of a partner in the partnership generally will depend upon the status of the partner and the activities of the partnership. A beneficial owner that is a partnership and partners in such a partnership should consult their tax advisors about the federal income tax consequences of the acquisition, ownership and disposition of our shares.
Federal income tax considerations to HRPT from the creation and IPO of GOV.
Our formation of GOV, followed by GOV's issuance of its shares to the public in its IPO, impacted our own REIT qualification and taxation under the IRC in the following manner.
Formation of GOV. Prior to its IPO, GOV and its wholly-owned subsidiaries were wholly owned by us. During this period GOV and its subsidiaries were disregarded as entities separate from us for federal income tax purposes, either under the regulations issued under Section 7701 of the IRC or under the qualified REIT subsidiary rules of Section 856(i), all as described below. Accordingly, all assets, liabilities and items of income, deduction and credit of GOV and its subsidiaries during this period, including in particular the outstanding indebtedness on the GOV credit facility, were treated as ours. Under the Transaction Agreement, the federal income tax liabilities and federal income tax filings for GOV and its subsidiaries for this period are our responsibility.
Our Taxation upon GOV's IPO. When GOV first issued shares to persons other than us (the "Effective Time"), GOV ceased to be wholly owned by us. As a consequence, GOV and its subsidiaries ceased to be disregarded as entities separate from us for federal income tax purposes. Instead, at that time, GOV became regarded as a separate corporation that intends to
satisfy the requirements for qualification as a REIT under the IRC, and its subsidiaries ceased to be treated as part of us and became disregarded entities treated as part of the newly separate GOV. In particular, there was a "Deemed Exchange" for federal income tax purposes at the time when GOV ceased to be wholly owned by us, and this Deemed Exchange encompassed the following features:
† The cash, assets, and liabilities distributed from GOV to us prior to its issuance of shares in the IPO were treated as cash, assets, and liabilities retained by us and not included in the Deemed Exchange.
† The assets retained by GOV were treated as though contributed by us to GOV in the Deemed Exchange.
† The liabilities retained by GOV (other than the approximately $6 million reimbursement obligation to us), including in particular the outstanding balance on the GOV credit facility, were treated as liabilities of ours that were assumed by GOV in the Deemed Exchange.
† We were treated as receiving, as consideration in the Deemed
Exchange, (1) the GOV shares that we owned immediately after the Effective Time,
(2) the liabilities retained by GOV and treated as assumed by it from us in the
Deemed Exchange, plus (3) GOV's obligation to reimburse us for approximately $6
. . .
(d) Exhibits.
The Company hereby files the following exhibits:
8.1 Opinion of Sullivan & Worcester LLP as to tax matters.
10.1 Business Management Agreement dated June 8, 2009, between HRPT
Properties Trust and Reit Management & Research LLC.
10.2 Transaction Agreement dated June 8, 2009, between HRPT Properties Trust
and Government Properties Income Trust.
23.1 Consent of Sullivan & Worcester LLP (contained in Exhibit 8.1).
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