FORM 10-K

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

 

Commission File Number: 1-12252

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.   Yes    ý   No   o

 

Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Act).

Yes   ý   No   o

 

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

 

The aggregate market value of Common Shares held by non-affiliates of the Registrant was approximately $7.1 billion based upon the closing price on June 30, 2003 of $25.95 using beneficial ownership of shares rules adopted pursuant to Section 13 of the Securities Exchange Act of 1934 to exclude voting shares owned by Trustees and Executive Officers, some of who may not be held to be affiliates upon judicial determination.

 

The number of Common Shares of Beneficial Interest, $0.01 par value, outstanding on January 31, 2004 was 278,543,863.

 

 

DOCUMENTS INCORPORATED BY REFERENCE

 

Part III incorporates by reference information to be contained in the Company’s definitive proxy statement, which the Company anticipates will be filed no later than April 29, 2004, and thus these items have been omitted in accordance with General Instruction G (3) to Form 10-K.

2

 

EQUITY RESIDENTIAL

 

TABLE OF CONTENTS

 

		PAGE
PART I.
Item 1.	Business	4
Item 2.	The Properties	25
Item 3.	Legal Proceedings	28
Item 4.	Submission of Matters to a Vote of Security Holders	28
PART II.
Item 5.	Market for Registrant’s Common Equity and Related Shareholder Matters	29
Item 6.	Selected Financial Data	29
Item 7.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	31
Item 7A.	Quantitative and Qualitative Disclosure about Market Risk	47
Item 8.	Financial Statements and Supplementary Data	48
Item 9.	Changes in and Disagreements with Accountants on Accounting and Financial Disclosure	48
Item 9A.	Disclosure Controls and Procedures	48
PART III.
Item 10.	Trustees and Executive Officers of the Registrant	49
Item 11.	Executive Compensation	49
Item 12.	Security Ownership of Certain Beneficial Owners and Management	49
Item 13.	Certain Relationships and Related Transactions	49
Item 14.	Principal Accountant Fees and Services	49
PART IV.
Item 15.	Exhibits, Financial Statement Schedules and Reports on Form 8-K	50

 

3

 

Item 1.  Business

 

General

 

Equity Residential (“EQR”), formed in March 1993, is a fully integrated real estate company engaged in the acquisition, development, ownership, management and operation of multifamily properties.  EQR has elected to be taxed as a real estate investment trust (“REIT”).

 

The Company is one of the largest publicly traded REIT’s and is the largest publicly traded REIT owner of multifamily properties (based on the aggregate market value of its outstanding Common Shares, the number of apartment units wholly owned and total revenues earned).  The Company’s corporate headquarters are located in Chicago, Illinois and the Company also leases (under operating leases) approximately thirty-five divisional, regional and area property management offices throughout the United States.

 

EQR is the general partner of, and as of December 31, 2003 owned an approximate 92.7% ownership interest in, ERP Operating Limited Partnership, an Illinois limited partnership (the “Operating Partnership”).  The Operating Partnership is, directly or indirectly, a partner, member or shareholder of numerous partnerships, limited liability companies and corporations which have been established primarily to own fee simple title to multifamily properties or to conduct property management activities and other businesses related to the ownership and operation of multifamily residential real estate.  References to the “Company” include EQR, the Operating Partnership and each of the partnerships, limited liability companies and corporations controlled by the Operating Partnership or EQR.

 

As of December 31, 2003, the Company owned or had investments in 968 properties in 34 states consisting of 207,506 units.  The ownership breakdown includes:

 

		Properties		Units
Wholly Owned Properties		849		178,150
Partially Owned Properties (Consolidated)		35		6,778
Unconsolidated Properties		84		22,578
		968		207,506

 

The Company has approximately 6,000 employees as of March 1, 2004.  An on-site manager, who supervises the on-site employees and is responsible for the day-to-day operations of the property, directs each of the Company’s properties.  An assistant manager and/or leasing staff generally assist the manager.  In addition, a maintenance director at each property supervises a maintenance staff and/or contractors whose responsibilities include a variety of tasks, including responding to service requests, preparing vacant apartments for the next resident and performing preventive maintenance procedures year-round.

 

Certain capitalized terms as used herein are defined in the Notes to Consolidated Financial Statements.

 

Business Objectives and Operating Strategies

 

The Company seeks to maximize both current income and long-term growth in income, thereby increasing:

 

•                  the value of the properties;

•                  distributions on a per Common Share basis; and

•                  shareholders’ value.

 

4

 

The Company’s strategies for accomplishing these objectives are:

 

•                  maintaining and increasing property occupancy while increasing rental rates;

•                  controlling expenses, providing regular preventive maintenance, making periodic renovations and enhancing amenities;

•                  maintaining a ratio of consolidated debt-to-total market capitalization of less than 50%;

•                  strategically acquiring and disposing of properties, with an emphasis on acquiring attractive properties in high barrier to entry markets and on selling properties in low barrier to entry markets;

•                  purchasing newly developed, as well as co-investing in the development of, multifamily communities;

•                  entering into joint ventures related to the ownership of established properties; and

•                  strategically investing in various businesses that will enhance services for the properties.

 

The Company is committed to resident satisfaction by striving to anticipate industry trends and implementing strategies and policies consistent with providing quality resident services.  In addition, the Company continuously surveys rental rates of competing properties and conducts resident satisfaction surveys to determine the factors they consider most important in choosing a particular apartment unit and/or property.

 

Acquisition and Development Strategies

 

The Company anticipates that future property acquisitions and developments will occur within the United States.  Management will continue to use market information to evaluate opportunities.  The Company’s market database allows it to review the primary economic indicators of the markets where the Company currently owns properties and where it expects to expand its operations.  Acquisitions and developments may be financed from various sources of capital, which may include retained cash flow, issuance of additional equity and debt securities, sales of properties, joint venture agreements and collateralized and uncollateralized borrowings.  In addition, the Company may acquire additional properties in transactions that include the issuance of limited partnership interests in the Operating Partnership (“OP Units”) as consideration for the acquired properties. Such transactions may, in certain circumstances, enable the sellers to defer, in part, the recognition of taxable income or gain, which might otherwise result from the sales.

 

When evaluating potential acquisitions and developments, the Company will consider:

 

•                  the geographic area and type of community;

•                  the location, construction quality, condition and design of the property;

•                  the current and projected cash flow of the property and the ability to increase cash flow;

•                  the potential for capital appreciation of the property;

•                  the terms of resident leases, including the potential for rent increases;

•                  income levels and employment growth trends in the relevant market;

•                  employment and household growth and net migration of the relevant market’s population;

•                  the potential for economic growth and the tax and regulatory environment of the community in which the property is located;

•                  the occupancy and demand by residents for properties of a similar type in the vicinity (the overall market and submarket);

•                  the prospects for liquidity through sale, financing or refinancing of the property;

•                  the benefits of integration into existing operations;

•                  barriers to entry that would limit competition (zoning laws, building permit availability, supply of undeveloped or developable real estate, local building costs and construction labor costs among other factors);

 

5

 

•                  purchase prices and yields of available existing stabilized communities, if any; and

•                  competition from existing multifamily properties, residential properties under development and the potential for the construction of new multifamily properties in the area.

 

Disposition Strategies

 

Management uses market information to evaluate dispositions.  Factors the Company considers in deciding whether to dispose of its properties include the following:

 

•                  potential increases in new construction;

•                  submarkets that will underperform the average performance of the portfolio in the mid and long-term;

•                  markets where the Company does not intend to establish long-term concentrations; and

•                  age or location of a particular property.

 

The Company will reinvest the proceeds received from property dispositions primarily to fund property acquisitions as well as fund development activities.  In addition, when feasible, the Company may structure these transactions as tax deferred exchanges.

 

Financing Strategies

 

The Company’s “Consolidated Debt-to-Total Market Capitalization Ratio” as of December 31, 2003 is presented in the following table.  The Company calculates the equity component of its market capitalization as the sum of (i) the total outstanding Common Shares and assumed conversion of all OP Units at the equivalent market value of the closing price of the Company’s Common Shares on the New York Stock Exchange; (ii) the “Common Share Equivalent” of all convertible preferred shares and preference interests/units; and (iii) the liquidation value of all perpetual preferred shares and preference interests outstanding.

 

Capitalization as of December 31, 2003

 

Total Debt					$	5,360,488,661
Common Shares & OP Units		299,551,617
Common Share Equivalents (see below)		3,598,234
Total Outstanding at year-end		303,149,851
Common Share Price at December 31, 2003		$	29.51
					8,945,952,103
Perpetual Preferred Shares Liquidation Value					615,000,000
Perpetual Preference Interests Liquidation Value					211,500,000
Total Market Capitalization					$	15,132,940,764
Total Debt/Total Market Capitalization					35		%

 

6

 

Convertible Preferred Shares, Preference Interests
and Junior Preference Units
as of December 31, 2003

 

		Shares/Units		Conversion Ratio		Common Share Equivalents
Preferred Shares:
Series E		2,192,490		1.1128		2,439,803
Series H		44,028		1.4480		63,753
Preference Interests:
Series H		190,000		1.5108		287,052
Series I		270,000		1.4542		392,634
Series J		230,000		1.4108		324,484
Junior Preference Units:
Series A		20,333		4.081600		82,991
Series B		7,367		1.020408		7,517
Total						3,598,234

 

The Company’s policies are to maintain a ratio of consolidated debt-to-total market capitalization of less than 50% and that EQR shall not incur indebtedness other than short-term trade, employee compensation or similar indebtedness that will be paid in the ordinary course of business.

 

Equity Offerings For the Years Ended December 31, 2003, 2002 and 2001

 

During 2003, the Company:

 

•                  Issued 600,000 Series N Cumulative Redeemable Preferred Shares with a liquidation value of $150.0 million and received net proceeds of approximately $145.3 million.

•                  Issued 3,249,555 Common Shares pursuant to its Share Incentive Plans and received net proceeds of approximately $68.4 million.

•                  Issued 289,274 Common Shares pursuant to its Employee Share Purchase Plan and received net proceeds of approximately $6.3 million.

 

During 2002, the Company:

 

•                  Issued 1,435,115 Common Shares pursuant to its Share Incentive Plans and received net proceeds of approximately $29.6 million.

•                  Issued 324,238 Common Shares pursuant to its Employee Share Purchase Plan and received net proceeds of approximately $7.4 million.

•                  Issued 31,354 Common Shares pursuant to its Share Purchase - DRIP Plan and received net proceeds of approximately $0.9 million.

•                  Issued 41,407 Common Shares pursuant to its Dividend Reinvestment – DRIP Plan and received net proceeds of approximately $1.2 million.

•                  Repurchased 5,092,300 of its Common Shares on the open market at an average price of $22.58 per share.  The purchases were made between October 1 and October 22, 2002.  The Company paid approximately $115.0 million in connection therewith.  These shares were subsequently retired.

 

During 2001, the Company:

 

•                  Issued 3,187,217 Common Shares pursuant to its Share Incentive Plans and received net proceeds of approximately $65.4 million.

 

7

 

•                  Issued 310,261 Common Shares pursuant to its Employee Share Purchase Plan and received net proceeds of approximately $6.9 million.

•                  Issued 33,106 Common Shares pursuant to its Share Purchase - DRIP Plan and received net proceeds of approximately $0.9 million.

•                  Issued 42,649 Common Shares pursuant to its Dividend Reinvestment – DRIP Plan and received net proceeds of approximately $1.2 million.

 

In February 1998, the Company filed and the SEC declared effective a Form S-3 Registration Statement to register $1.0 billion of equity securities.  In addition, the Company carried over $272.4 million related to a prior registration statement.  As of February 4, 2004, $956.5 million in equity securities remained available for issuance under this registration statement.

 

In May 2002, the Company’s shareholders approved the Company’s 2002 Share Incentive Plan.  In January 2003, the Company filed a Form S-8 registration statement to register 23,125,828 Common Shares under this plan.  As of January 1, 2004, 22,736,239 shares are available for issuance under this plan.

 

Cumulative through December 31, 2003, the Company, through a subsidiary of the Operating Partnership, issued various series of Preference Interests (the “Preference Interests”) with an equity value of $246.0 million receiving net proceeds of $239.9 million.

 

Debt Offerings For the Years Ended December 31, 2003, 2002 and 2001

 

During 2003:

 

•                  The Operating Partnership issued $400.0 million of redeemable unsecured fixed rate notes (the “April 2013 Notes”) in a public debt offering in March 2003.  The April 2013 Notes were issued at a discount, which is being amortized over the life of the notes on a straight-line basis.  The April 2013 Notes are due April 1, 2013.  The annual interest rate on the April 2013 Notes is 5.20%, which is payable semiannually in arrears on April 1 and October 1, commencing October 1, 2003.  The Operating Partnership received net proceeds of approximately $397.5 million in connection with this issuance.

 

During 2002:

 

•                  The Operating Partnership issued $400.0 million of redeemable unsecured fixed rate notes (the “March 2012 Notes”) in a public debt offering in March 2002.  The March 2012 Notes were issued at a discount, which is being amortized over the life of the notes on a straight-line basis.  The March 2012 Notes are due March 15, 2012.  The annual interest rate on the March 2012 Notes is 6.625%, which is payable semiannually in arrears on September 15 and March 15, commencing September 15, 2002.  The Operating Partnership received net proceeds of approximately $394.5 million in connection with this issuance.

•                  The Operating Partnership issued $50.0 million of redeemable unsecured fixed rate notes (the “November 2007 Notes”) in a public debt offering in November 2002.  The November 2007 Notes are due November 30, 2007.  The annual interest rate on the November 2007 Notes is 4.861%, which is payable semiannually in arrears on May 30 and November 30, commencing May 30, 2003.  The Operating Partnership received net proceeds of approximately $49.9 million in connection with this issuance.

 

During 2001:

 

•                  The Operating Partnership issued $300.0 million of redeemable unsecured fixed rate notes (the “March 2011 Notes”) in a public debt offering in March 2001.  The March 2011 Notes were issued at a discount, which is being amortized over the life of the notes on a straight-line basis.  The March 2011 Notes are due March 2, 2011.  The annual interest rate on the March 2011 Notes is 6.95%,

 

8

 

which is payable semiannually in arrears on September 2 and March 2, commencing September 2, 2001.  The Operating Partnership received net proceeds of approximately $297.4 million in connection with this issuance.

 

In June 2003, the Operating Partnership filed and the SEC declared effective a Form S-3 registration statement to register $2.0 billion of debt securities.  In addition, the Operating Partnership carried over $280.0 million related to a prior registration statement.  As of February 4, 2004, $2.28 billion in debt securities remained available for issuance under this registration statement.

 

Credit Facilities

 

In May 2002, the Company obtained a new three-year $700.0 million unsecured revolving credit facility maturing May 29, 2005.  The new line of credit replaced the $700.0 million unsecured revolving credit facility that was scheduled to expire in August 2002.  The prior existing revolving credit facility was terminated upon the closing of the new facility.  Advances under the new credit facility bear interest at variable rates based upon LIBOR at various interest periods, plus a spread dependent upon the Operating Partnership’s credit rating, or based upon bids received from the lending group.  As of December 31, 2003, $10.0 million was outstanding and $56.7 million was restricted (dedicated to support letters of credit and not available for borrowing) on the line of credit.  During the year ended December 31, 2003, the weighted average interest rate on borrowings under the line of credit was 1.85%.

 

Business Combinations

 

In January 2002, the Company sold the former Globe Business Resources, Inc. (“Globe”) furniture rental business it acquired in July 2000 for approximately $30.0 million in cash, which approximated the net book value at the sale date.  The Company has retained ownership of the former Globe short-term furnished housing business, which is now known as Equity Corporate Housing (“ECH”).

 

For the year ended December 31, 2002, the Company recorded approximately $17.1 million of asset impairment charges related to ECH.  Following the guidance in SFAS No. 142, these charges were the result of the Company’s decision to reduce the carrying value of ECH to $30.0 million, given the continued weakness in the economy and management’s expectations for near-term performance and were determined based upon a discounted cash flow analysis of the business.  This impairment loss is reflected on the consolidated statements of operations as impairment on corporate housing business and on the consolidated balance sheets as a reduction in goodwill, net.

 

Competition

 

All of the properties are located in developed areas that include other multifamily properties.  The number of competitive multifamily properties in a particular area could have a material effect on the Company’s ability to lease units at the properties or at any newly acquired properties and on the rents charged.  The Company may be competing with other entities that have greater resources than the Company and whose managers have more experience than the Company’s managers.  In addition, other forms of rental properties and single-family housing provide housing alternatives to potential residents of multifamily properties.   Throughout 2002 and 2003, historically low mortgage interest rates coupled with increased residential construction and single-family home sales have had an adverse competitive effect on the Company.

 

9

 

Risk Factors

 

The following Risk Factors may contain defined terms that are different from those used in the other sections of this report.  Unless otherwise indicated, when used in this section, the terms “we” and “us” refer to Equity Residential and its subsidiaries, including ERP Operating Limited Partnership.

 

Set forth below are the risks that we believe are important to investors who purchase or own our common shares of beneficial interest or preferred shares of beneficial interest (which we refer to collectively as “Shares”); preference interests (“Interests”) of a subsidiary of ERP Operating Limited Partnership; preference units (“Units”); or units of limited partnership interest (“OP Units”) of ERP Operating Limited Partnership, our operating partnership, which are redeemable on a one-for-one basis for common shares or their cash equivalent.  In this section, we refer to the Shares, Interests, Units and the OP Units together as our “securities,” and the investors who own Shares, Interests, Units and/or OP Units as our “security holders.”

 

Our Performance and Share Value are Subject to Risks Associated with the Real Estate Industry

 

General

 

Real property investments are subject to varying degrees of risk and are relatively illiquid. Several factors may adversely affect the economic performance and value of our properties.  These factors include changes in the national, regional and local economic climate, local conditions such as an oversupply of multifamily properties or a reduction in demand for our multifamily properties, the attractiveness of our properties to residents, competition from other available multifamily property owners and changes in market rental rates.  Our performance also depends on our ability to collect rent from residents and to pay for adequate maintenance, insurance and other operating costs, including real estate taxes, which could increase over time.  Also, the expenses of owning and operating a property are not necessarily reduced when circumstances such as market factors and competition cause a reduction in income from the property.

 

We May be Unable to Renew Leases or Relet Units as Leases Expire

 

When our residents decide not to renew their leases upon expiration, we may not be able to relet their units.  Even if the residents do renew or we can relet the units, the terms of renewal or reletting may be less favorable than current lease terms.  Because virtually all of our leases are for apartments, they are generally for terms of no more than one year.  If we are unable to promptly renew the leases or relet the units, or if the rental rates upon renewal or reletting are significantly lower than expected rates, then our results of operations and financial condition will be adversely affected.  Consequently, our cash flow and ability to service debt and make distributions to security holders would be reduced.  As a result of general economic conditions and competitive factors discussed above, we have experienced a trend of declining rents and increased concessions when entering into new leases across our portfolio during the last two years.

 

New Acquisitions or Developments May Fail to Perform as Expected and Competition for Acquisitions May Result in Increased Prices for Properties

 

We intend to continue to actively acquire and develop multifamily properties.  Newly acquired or developed properties may fail to perform as expected.  We may underestimate the costs necessary to bring an acquired property up to standards established for its intended market position or to develop a property.  Additionally, we expect that other major real estate investors with significant capital will compete with us for attractive investment opportunities or may also develop properties in markets where we focus our development efforts.  This competition may increase prices for multifamily properties.  We may not be in a position or have the opportunity in the future to make suitable property acquisitions on

 

10

 

favorable terms.   The total number of development units, cost of development and estimated completion dates are subject to uncertainties arising from changing economic conditions (such as the cost of labor and construction materials), competition and local government regulation.

 

Because Real Estate Investments Are Illiquid, We May Not Be Able To Sell Properties When Appropriate

 

Real estate investments generally cannot be sold quickly.  We may not be able to change our portfolio promptly in response to economic or other conditions.  This inability to respond promptly to changes in the performance of our investments could adversely affect our financial condition and ability to make distributions to our security holders.

 

Changes in Laws Could Affect Our Business

 

We are generally not able to pass through to our residents under existing leases real estate taxes, income taxes or other taxes.  Consequently, any such tax increases may adversely affect our financial condition and limit our ability to make distributions to our security holders.  Similarly, changes that increase our potential liability under environmental laws or our expenditures on environmental compliance would adversely affect our cash flow and ability to make distributions on our securities.

 

Environmental Problems are Possible and can be Costly

 

Federal, state and local laws and regulations relating to the protection of the environment may require a current or previous owner or operator of real estate to investigate and clean up hazardous or toxic substances or petroleum product releases at such property.  The owner or operator may have to pay a governmental entity or third parties for property damage and for investigation and clean-up costs incurred by such parties in connection with the contamination. These laws typically impose clean-up responsibility and liability without regard to whether the owner or operator knew of or caused the presence of the contaminants. Even if more than one person may have been responsible for the contamination each person covered by the environmental laws may be held responsible for all of the clean-up costs incurred.  In addition, third parties may sue the owner or operator of a site for damages and costs resulting from environmental contamination emanating from that site.

 

Substantially all of our properties have been the subject of environmental assessments completed by qualified independent environmental consultant companies.  These environmental assessments have not revealed, nor are we aware of, any environmental liability that our management believes would have a material adverse effect on our business, results of operations, financial condition or liquidity.

 

Over the past three years, there have been an increasing number of lawsuits against owners and managers of multifamily properties other than the Company alleging personal injury and property damage caused by the presence of mold in residential real estate.  Some of these lawsuits have resulted in substantial monetary judgments or settlements.  Insurance carriers have reacted to these liability awards by excluding mold related claims from standard policies and pricing mold endorsements at prohibitively high rates.  We have adopted programs designed to minimize the existence of mold in any of our properties as well as guidelines for promptly addressing and resolving reports of mold to minimize any impact mold might have on residents or the property.

 

We cannot be assured that existing environmental assessments of our properties reveal all environmental liabilities, that any prior owner of any of our properties did not create a material environmental condition not known to us, or that a material environmental condition does not otherwise exist as to any one or more of our properties.

 

11

 

Insurance Policy Deductibles and Exclusions

 

In order to partially mitigate the substantial increase in insurance costs in recent years, management has determined to gradually increase deductible and self-insured retention amounts.  As of December 31, 2003, the Company's property insurance policy (for Wholly Owned Properties) provides for a per occurrence deductible of $250,000 and self insured retention of $5.0 million per occurrence, subject to a maximum annual aggregate self insured retention of $7.5 million.  The Company’s liability and worker’s compensation policies at December 31, 2003, provide for a $1.0 million per occurrence deductible.  While higher deductible and self-insured retention amounts expose the Company to greater potential uninsured losses, management believes that the savings in insurance premium expense justifies this increased exposure.

 

As a result of the terrorist attacks of September 11, 2001, insurance carriers have created exclusions for losses from terrorism from our “all risk” insurance policies.  While separate terrorism insurance coverage is available in certain instances, premiums for such coverage are generally very expensive, with very high deductibles.  Moreover, the terrorism insurance coverage that is available typically excludes coverage for losses from acts of foreign governments as well as nuclear, biological and chemical attacks.  At the present time, the Company has determined that it is not economically prudent to obtain terrorism insurance for its portfolio to the extent otherwise available, especially given the significant risks that are not covered by such insurance.  In the event of a terrorist attack impacting one or more of the properties, we could lose the revenues from the property, our capital investment in the property and possibly face liability claims from residents or others suffering injuries or losses. The Company believes, however, that the number and geographic diversity of its portfolio helps to mitigate its exposure to the risks associated with potential terrorist attacks.

 

Debt Financing, Preferred Shares and Preference Interests and Units Could Adversely Affect Our Performance

 

General

 

The Company’s total debt summary, as of December 31, 2003, included:

 

Debt Summary

 

		$ Millions *			Weighted Average Rate *
Secured		$	2,694		5.80	%
Unsecured		2,666			6.38	%
Total		$	5,360		6.08	%
Fixed Rate		$	4,610		6.65	%
Floating Rate		750			2.24	%
Total		$	5,360		6.08	%
Above Totals Include:
Tax Exempt:
Fixed		$	343		4.38	%
Floating		587			1.74	%
Total		$	930		3.01	%
Unsecured Revolving Credit Facility		$	10		1.85	%

 

* Net of the effect of any derivative instruments.

 

12

 

In addition to debt, we have $919.1 million of combined liquidation value of outstanding preferred shares of beneficial interest and preference interests and units, with a weighted average dividend preference of 8.17% per annum, as of December 31, 2003.  Our use of debt and preferred equity financing creates certain risks, including the following:

 

Scheduled Debt Payments Could Adversely Affect Our Financial Condition

 

In the future, our cash flow could be insufficient to meet required payments of principal and interest or to pay distributions on our securities at expected levels.

 

We may not be able to refinance existing debt (which in virtually all cases requires substantial principal payments at maturity) and, if we can, the terms of such refinancing might not be as favorable as the terms of existing indebtedness.  If principal payments due at maturity cannot be refinanced, extended or paid with proceeds of other capital transactions, such as new equity capital, our cash flow will not be sufficient in all years to repay all maturing debt.  As a result, we may be forced to postpone capital expenditures necessary for the maintenance of our properties and may have to dispose of one or more properties on terms that would otherwise be unacceptable to us.  The Company’s debt maturity schedule as of December 31, 2003 is as follows:

 

Debt Maturity Schedule

 

 

(1) Includes $300 million of unsecured debt with a final maturity of 2015 that is putable/callable in 2005.

(2) Includes $150 million of unsecured debt with a final maturity of 2026 that is putable in 2006.

 

Financial Covenants Could Adversely Affect the Company’s Financial Condition

 

If a property we own is mortgaged to secure payment of indebtedness and we are unable to meet the mortgage payments, the holder of the mortgage could foreclose on the property, resulting in loss of income and asset value.  Foreclosure on mortgaged properties or an inability to refinance existing indebtedness would likely have a negative impact on our financial condition and results of operations.  A foreclosure could also result in our recognition of taxable income without our actually receiving cash proceeds from the disposition of the property with which to pay the tax.  This could adversely affect our cash flow and could make it more difficult for us to meet our REIT distribution requirements.

 

The mortgages on our properties may contain customary negative covenants that, among other things, limit our ability, without the prior consent of the lender, to further mortgage the property and to reduce or change insurance coverage.  In addition, our unsecured credit facilities contain certain

 

13

 

customary restrictions, requirements and other limitations on our ability to incur indebtedness.  The indentures under which a substantial portion of our debt was issued also contain certain financial and operating covenants including, among other things, maintenance of certain financial ratios, as well as limitations on our ability to incur secured and unsecured indebtedness (including acquisition financing), and to sell all or substantially all of our assets.  Our credit facility and indentures are cross-defaulted and also contain cross default provisions with other material indebtedness.  Our unsecured public debt covenants as of December 31, 2003 and 2002, respectively, are (terms are defined in the indentures):

 

Unsecured Public Debt Covenants

 

		As of 12/31/03		As of 12/31/02
Total Debt to Adjusted Total Assets (not to exceed 60%)		39.1	%	39.8	%
Secured Debt to Adjusted Total Assets (not to exceed 40%)		19.6	%	21.1	%
Consolidated Income Available For Debt Service To Maximum Annual Service Charges (must be at least 1.5 to 1)		2.90		3.18
Total Unsecured Assets to Unsecured Debt (must be at least 150%)		330.2	%	334.8	%

 

Some of the properties were financed with tax-exempt bonds that contain certain restrictive covenants or deed restrictions.  We have retained an independent outside consultant to monitor compliance with the restrictive covenants and deed restrictions that affect these properties.  If these bond compliance requirements restrict our ability to increase our rental rates to attract low or moderate-income residents, or eligible/qualified residents, then our income from these properties may be limited.

 

Our Degree of Leverage Could Limit Our Ability to Obtain Additional Financing

 

Our Consolidated Debt-to-Total Market Capitalization Ratio was 35% as of December 31, 2003.  We have a policy of incurring indebtedness for borrowed money only through the Operating Partnership and its subsidiaries and only if upon such incurrence our debt to market capitalization ratio would be approximately 50% or less.  Our degree of leverage could have important consequences to security holders.  For example, the degree of leverage could affect our ability to obtain additional financing in the future for working capital, capital expenditures, acquisitions, development or other general corporate purposes, making us more vulnerable to a downturn in business or the economy in general.

 

Rising Interest Rates Could Adversely Affect Cash Flow

 

Advances under our credit facility bear interest at variable rates based upon LIBOR at various interest periods, plus a spread dependent upon the Operating Partnership’s credit rating, or based upon bids received from the lending group.  Certain public issuances of our senior unsecured debt instruments may also, from time to time, bear interest at floating rates.  We may also borrow additional money with variable interest rates in the future.  Increases in interest rates would increase our interest expenses under these debt instruments and would increase the costs of refinancing existing indebtedness and of issuing new debt.  Accordingly, higher interest rates could adversely affect cash flow and our ability to service our debt and to make distributions to security holders.

 

We Depend on Our Key Personnel

 

We depend on the efforts of the Chairman of our Board of Trustees, Samuel Zell, and our executive officers, particularly Bruce W. Duncan, our President and Chief Executive Officer and Gerald A. Spector, our Chief Operating Officer.  If they resign, our operations could be temporarily adversely

 

14

 

effected.  Mr. Zell has entered into executive compensation and retirement benefit agreements with the Company.  Mr. Duncan and Mr. Spector have entered into Deferred Compensation Agreements with the Company that under certain conditions could provide both with a salary benefit after their respective termination of employment with the Company.  In addition, Mr. Zell and Mr. Spector have entered into Noncompetition Agreements with the Company and Mr. Duncan’s Employment Agreement contains covenants not to compete in favor of the Company.

 

Control and Influence by Significant Shareholders Could be Exercised in a Manner Adverse to Other Shareholders

 

As of January 31, 2004, (1) Samuel Zell, the Chairman of the Board of the Company, and certain of the current holders of OP Units issued to affiliates of Mr. Zell owned in the aggregate approximately 3.2% of our common shares (Mr. Zell and these affiliates are described herein as the “Zell Original Owners”); and (2) our executive officers and trustees, excluding Mr. Zell (see disclosure above), owned approximately 3.8% of our common shares. These percentages assume all options are exercised for common shares and all OP Units are converted to common shares.  In addition, the consent of certain affiliates of Mr. Zell is required for certain amendments to the Fifth Amended and Restated Agreement of Limited Partnership of ERP Operating Limited Partnership (the “Partnership Agreement”).  As a result of their security ownership and rights concerning amendments to the Partnership Agreement, the Zell affiliates may have substantial influence over the Company.  Although these security holders have not agreed to act together on any matter, they would be in a position to exercise even more influence over the Company’s affairs if they were to act together in the future.  This influence could conceivably be exercised in a manner that is inconsistent with the interests of other security holders.

 

Shareholders’ Ability to Effect Changes in Control of the Company is Limited

 

Provisions of Our Declaration of Trust and Bylaws Could Inhibit Changes in Control

 

Certain provisions of our Declaration of Trust and Bylaws may delay or prevent a change in control of the Company or other transactions that could provide the security holders with a premium over the then-prevailing market price of their securities or which might otherwise be in the best interest of our security holders.  This includes the 5% Ownership Limit described below.  See “We Have a Share Ownership Limit for REIT Tax Purposes.”  Also, any future series of preferred shares of beneficial interest may have certain voting provisions that could delay or prevent a change of control or other transactions that might otherwise be in the interest of our security holders.

 

We Have a Share Ownership Limit for REIT Tax Purposes

 

To remain qualified as a REIT for federal income tax purposes, not more than 50% in value of our outstanding Shares may be owned, directly or indirectly, by five or fewer individuals at any time during the last half of any year.  To facilitate maintenance of our REIT qualification, our Declaration of Trust, subject to certain exceptions, prohibits ownership by any single shareholder of more than 5% of the lesser of the number or value of the outstanding class of common or preferred shares.  We refer to this restriction as the “Ownership Limit.”  Absent any exemption or waiver granted by our Board of Trustees, securities acquired or held in violation of the Ownership Limit will be transferred to a trust for the exclusive benefit of a designated charitable beneficiary, and the security holder’s rights to distributions and to vote would terminate.  A transfer of Shares may be void if it causes a person to violate the Ownership Limit.  The Ownership Limit could delay or prevent a change in control and, therefore, could adversely affect our security holders’ ability to realize a premium over the then-prevailing market price for their Shares.

 

15

 

Our Preferred Shares of Beneficial Interest May Affect Changes in Control

 

Our Declaration of Trust authorizes the Board of Trustees to issue up to 100 million preferred shares of beneficial interest, and to establish the preferences and rights (including the right to vote and the right to convert into common shares) of any preferred shares issued.  The Board of Trustees may use its powers to issue preferred shares and to set the terms of such securities to delay or prevent a change in control of the Company, even if a change in control were in the interest of security holders.  As of December 31, 2003, 5,496,518 preferred shares were issued and outstanding.

 

Inapplicability of Maryland Law Limiting Certain Changes in Control

 

Certain provisions of Maryland law applicable to real estate investment trusts prohibit “business combinations” (including certain issuances of equity securities) with any person who beneficially owns ten percent or more of the voting power of outstanding securities, or with an affiliate who, at any time within the two-year period prior to the date in question, was the beneficial owner of ten percent or more of the voting power of the trust’s outstanding voting securities (an “Interested Shareholder”), or with an affiliate of an Interested Shareholder.  These prohibitions last for five years after the most recent date on which the Interested Shareholder became an Interested Shareholder.  After the five-year period, a business combination with an Interested Shareholder must be approved by two super-majority shareholder votes unless, among other conditions, holders of common shares receive a minimum price for their shares and the consideration is received in cash or in the same form as previously paid by the Interested Shareholder for its common shares.  As permitted by Maryland law, however, the Board of Trustees of the Company has opted out of these restrictions with respect to any business combination involving the Zell Original Owners and persons acting in concert with any of the Zell Original Owners.  Consequently, the five-year prohibition and the super-majority vote requirements will not apply to a business combination involving us and/or any of them.  Such business combinations may not be in the best interest of our security holders.

 

Our Success as a REIT is Dependent on Compliance With Federal Income Tax Requirements

 

Our Failure to Qualify as a REIT Would Have Serious Adverse Consequences to Our Security Holders

 

We believe that we have qualified for taxation as a REIT for federal income tax purposes since our taxable year ended December 31, 1992 based, in part, upon opinions of tax counsel received whenever we have issued equity securities or engaged in significant merger transactions.  We plan to continue to meet the requirements for taxation as a REIT.  Many of these requirements, however, are highly technical and complex.  We cannot, therefore, guarantee that we have qualified or will qualify in the future as a REIT.  The determination that we are a REIT requires an analysis of various factual matters that may not be totally within our control.  For example, to qualify as a REIT, at least 95% of our gross income must come from sources that are itemized in the REIT tax laws.  We are also required to distribute to security holders at least 90% of our REIT taxable income excluding capital gains.  The fact that we hold our assets through ERP Operating Limited Partnership and its subsidiaries further complicates the application of the REIT requirements. Even a technical or inadvertent mistake could jeopardize our REIT status.  Furthermore, Congress and the IRS might make changes to the tax laws and regulations, and the courts might issue new rulings that make it more difficult, or impossible, for us to remain qualified as a REIT.  We do not believe, however, that any pending or proposed tax law changes would jeopardize our REIT status.

 

If we fail to qualify as a REIT, we would be subject to federal income tax at regular corporate rates. Also, unless the IRS granted us relief under certain statutory provisions, we would remain disqualified as a REIT for four years following the year we first failed to qualify.  If we fail to qualify as a REIT, we would have to pay significant income taxes.  We, therefore, would have less money available

 

16

 

for investments or for distributions to security holders.  This would likely have a significant adverse affect on the value of our securities.  In addition, we would no longer be required to make any distributions to security holders.

 

We could be Disqualified as a REIT or Have to Pay Taxes if Our Merger Partners Did Not Qualify as REIT’s

 

If any of our recent merger partners had failed to qualify as a REIT throughout the duration of their existence, then they might have had undistributed “C corporation earnings and profits” at the time of their merger with us.  If that was the case and we did not distribute those earnings and profits prior to the end of the year in which the merger took place, we might not qualify as a REIT.  We believe based, in part, upon opinions of legal counsel received pursuant to the terms of our merger agreements as well as our own investigations, among other things, that each of our merger partners qualified as a REIT and that, in any event, none of them had any undistributed “C corporation earnings and profits” at the time of their merger with us.  If any of our merger partners failed to qualify as a REIT, an additional concern would be that they would have recognized taxable gain at the time they were merged with us.  We would be liable for the tax on such gain.  In this event, we would have to pay corporate income tax on any gain existing at the time of the applicable merger on assets acquired in the merger if the assets are sold within ten years of the merger. Finally, we could be precluded from electing REIT status for up to four years after the year in which the predecessor entity failed to qualify for REIT status.

 

Other Tax Liabilities

 

Even if we qualify as a REIT, we will be subject to certain federal, state and local taxes on our income and property.  In addition, our third-party management operations, corporate housing business and condominium conversion business, which are conducted through subsidiaries, generally will be subject to federal income tax at regular corporate rates.

 

Compliance with REIT Distribution Requirements May Affect Our Financial Condition

 

Distribution Requirements May Increase the Indebtedness of the Company

 

We may be required from time to time, under certain circumstances, to accrue as income for tax purposes interest and rent earned but not yet received.  In such event, or upon our repayment of principal on debt, we could have taxable income without sufficient cash to enable us to meet the distribution requirements of a REIT.  Accordingly, we could be required to borrow funds or liquidate investments on adverse terms in order to meet these distribution requirements.

 

Federal Income Tax Considerations

 

General

 

The following discussion summarizes the federal income tax considerations material to a holder of common shares.  It is not exhaustive of all possible tax considerations. For example, it does not give a detailed discussion of any state, local or foreign tax considerations. The following discussion also does not address all tax matters that may be relevant to prospective shareholders in light of their particular circumstances.  Moreover, it does not address all tax matters that may be relevant to shareholders who are subject to special treatment under the tax laws, such as insurance companies, tax-exempt entities, financial institutions or broker-dealers, foreign corporations and persons who are not citizens or residents of the United States.

 

The specific tax attributes of a particular shareholder could have a material impact on the tax considerations associated with the purchase, ownership and disposition of common shares. Therefore, it is essential that each prospective shareholder consult with his or her own tax advisors with regard to the

 

17

 

application of the federal income tax laws to the shareholder’s personal tax situation, as well as any tax consequences arising under the laws of any state, local or foreign taxing jurisdiction.

 

The information in this section is based on the current Internal Revenue Code, current, temporary and proposed Treasury regulations, the legislative history of the Internal Revenue Code, current administrative interpretations and practices of the Internal Revenue Service, including its practices and policies as set forth in private letter rulings, which are not binding on the Internal Revenue Service, and existing court decisions.  Future legislation, regulations, administrative interpretations and court decisions could change current law or adversely affect existing interpretations of current law.  Any change could apply retroactively.  Thus, it is possible that the Internal Revenue Service could challenge the statements in this discussion, which do not bind the Internal Revenue Service or the courts, and that a court could agree with the Internal Revenue Service.

 

Our Taxation

 

We elected REIT status beginning with the year that ended December 31, 1992.  In any year in which we qualify as a REIT, we generally will not be subject to federal income tax on the portion of our REIT taxable income or capital gain that we distribute to our shareholders.  This treatment substantially eliminates the double taxation that applies to most corporations, which pay a tax on their income and then distribute dividends to shareholders who are in turn taxed on the amount they receive.

 

We will be subject, however, to federal income tax at regular corporate rates upon our REIT taxable income or capital gain that we do not distribute to our shareholders. In addition, we will be subject to a 4% excise tax if we do not satisfy specific REIT distribution requirements.  We could also be subject to the “alternative minimum tax” on our items of tax preference.  In addition, any net income from “prohibited transactions” (i.e., dispositions of property, other than property held by a taxable REIT subsidiary, held primarily for sale to customers in the ordinary course of business) will be subject to a 100% tax.  We could also be subject to a 100% penalty tax on certain payments received from or on certain expenses deducted by a taxable REIT subsidiary if certain rules enacted as part of the REIT Modernization Act of 1999 are not complied with.  Moreover, we may be subject to taxes in certain situations and on certain transactions that we do not presently contemplate.

 

We believe that we have qualified as a REIT for all of our taxable years beginning with 1992. We also believe that our current structure and method of operation is such that we will continue to qualify as a REIT.  However, given the complexity of the REIT qualification requirements, we cannot provide any assurance that the actual results of our operations have satisfied or will satisfy the requirements under the Internal Revenue Code for a particular year.

 

If we fail to qualify for taxation as a REIT in any taxable year, we will be subject to tax on our taxable income at regular corporate rates.  We also may be subject to the corporate “alternative minimum tax.” As a result, our failure to qualify as a REIT would significantly reduce the cash we have available to distribute to our shareholders.  Unless entitled to statutory relief, we would be disqualified from qualification as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether we would be entitled to statutory relief.

 

Tax legislation has recently been enacted which is intended to allow REITs to have greater flexibility in engaging in activities which previously had been prohibited by the REIT rules.  Among these changes was the establishment of “taxable REIT subsidiaries” or “TRSs” which are corporations subject to tax as a regular “C” corporation.  Generally, a taxable REIT subsidiary can own assets that cannot be owned by a REIT and can perform impermissible resident services (discussed below), which would otherwise taint our rental income under the REIT income tests.  In enacting the taxable REIT subsidiary rules, Congress intended that the arrangements between a REIT and its taxable REIT subsidiaries be structured to ensure that a taxable REIT subsidiary will be subject to an appropriate level of federal income taxation. As a result, the Act imposes certain limits on the ability of a taxable REIT

 

18

 

subsidiary to deduct interest payments made to us.  In addition, we will be obligated to pay a 100% penalty tax on some payments that we receive or on certain expenses deducted by the taxable REIT subsidiary if the economic arrangements between the REIT, the REIT’s residents and the taxable REIT subsidiary are not comparable to similar arrangements among unrelated parties.

 

Our qualification and taxation as a REIT depend on our ability to satisfy various requirements under the Internal Revenue Code.  We are required to satisfy these requirements on a continuing basis through actual annual operating and other results.

 

Share Ownership Test and Organizational Requirement.  In order to qualify as a REIT, our shares of beneficial interest must be held by a minimum of 100 persons for at least 335 days of a taxable year that is 12 months, or during a proportionate part of a taxable year of less than 12 months.  Also, not more than 50% in value of our shares of beneficial interest may be owned directly, or indirectly by applying certain constructive ownership rules, by five or fewer individuals during the last half of each taxable year.  In addition, we must meet certain other organizational requirements, including, but not limited to, that (i) the beneficial ownership in us is evidenced by transferable shares and (ii) we are managed by one or more trustees.  We believe that we have satisfied all of these tests and all other organizational requirements and that we will continue to do so in the future.  In order to help comply with the 100 person test and the 50% share ownership test discussed above, we have placed certain restrictions on the transfer of our shares that are intended to prevent further concentration of share ownership.  However, such restrictions may not prevent us from failing these requirements, and thereby failing to qualify as a REIT.

 

Gross Income Tests.  To qualify as a REIT, we must satisfy two gross income tests.  First, at least 75% of our gross income for each taxable year must be derived directly or indirectly from investments in real estate and/or real estate mortgage, dividends paid by another REIT and from some types of temporary investments.  Second, at least 95% of our gross income for each taxable year must be derived from any combination of income qualifying under the 75% test and dividends, non-real estate mortgage interest, some payments under hedging instruments and gain from the sale or disposition of stock or securities.  To qualify as rents from real property for the purpose of satisfying the gross income tests, rental payments must generally be received from unrelated persons and not be based on the net income of the resident.  Also, the rent attributable to personal property must not exceed 15% of the total rent.  We may generally provide services to residents without “tainting” our rental income only if such services are “usually or customarily rendered” in connection with the rental of real property and not otherwise considered “impermissible services”.  If such services are impermissible, then we may generally provide them only if they are considered de minimis in amount, or are provided through an independent contractor from whom we derive no revenue and that meets other requirements, or through a taxable REIT subsidiary.  We believe that services provided to residents by us either are usually or customarily rendered in connection with the rental of real property and not otherwise considered impermissible, or, if considered impermissible services, will meet the de minimis test or will be provided by an independent contractor or taxable REIT subsidiary.  However, we cannot provide any assurance that the Internal Revenue Service will agree with these positions.

 

Asset Tests.  In general, at the close of each quarter of our taxable year, we must satisfy four tests relating to the nature of our assets:  (1) at least 75% of the value of our total assets must be represented by real estate assets (which include for this purpose shares in other real estate investment trusts) and certain cash related items; (2) not more than 25% of our total assets may be represented by securities other than those in the 75% asset class; (3) except for equity investments in other REITs, qualified REIT subsidiaries (i.e., corporations owned 100% by a REIT that are not TRSs or REITs), or taxable REIT subsidiaries: (a) the value of any one issuer’s securities owned by us may not exceed 5% of the value of our total assets and (b) we may not own more than 10% of the value of or the voting securities of any one issuer; and (4) not more than 20% of our total assets may be represented by securities of one or more taxable REIT subsidiaries.  Securities for purposes of the asset tests may include debt securities.  We currently own equity interests in certain entities that have elected to be taxed

 

19

 

as REITs for federal income tax purposes and are not publicly traded.  If any such entity were to fail to qualify as a REIT, we would not meet the 10% voting stock limitation and the 10% value limitation and we would fail to qualify as a REIT.  We believe that we and each of the REITs we own an interest in have and will comply with the foregoing asset tests for REIT qualification.  However, we cannot provide any assurance that the Internal Revenue Service might not disagree with our determinations.

 

Annual Distribution Requirements.  To qualify as a REIT, we are generally required to distribute dividends, other than capital gain dividends, to our shareholders each year in an amount at least equal to 90% of our REIT taxable income.  These distributions must be paid either in the taxable year to which they relate, or in the following taxable year if declared before we timely file our tax return for the prior year and if paid with or before the first regular dividend payment date after the declaration is made.  We intend to make timely distributions sufficient to satisfy our annual distribution requirements.  To the extent that we do not distribute all of our net capital gain or distribute at least 90%, but less than 100% of our REIT taxable income, as adjusted, we are subject to tax on these amounts at regular corporate rates.   We will be subject to a 4% excise tax on the excess of the required distribution over the sum of amounts actually distributed and amounts retained for which federal income tax was paid, if we fail to distribute during each calendar year at least the sum of:  (1) 85% of our REIT ordinary income for the year; (2) 95% of our REIT capital gain net income for the year; and  (3) any undistributed taxable income from prior taxable years.  A REIT may elect to retain rather than distribute all or a portion of its net capital gains and pay the tax on the gains.  In that case, a REIT may elect to have its shareholders include their proportionate share of the undistributed net capital gains in income as long-term capital gains and receive a credit for their share of the tax paid by the REIT.  For purposes of the 4% excise tax described above, any retained amounts would be treated as having been distributed.

 

Ownership of Partnership Interests By Us.  As a result of our ownership of the Operating Partnership, we will be considered to own and derive our proportionate share of the assets and items of income of the Operating Partnership, respectively, for purposes of the REIT asset and income tests, including its share of assets and items of income of any subsidiaries that are partnerships or limited liability companies.

 

Our Management Company and Other Subsidiaries.  A small portion of the cash to be used by the Operating Partnership to fund distributions to us is expected to come from payments of dividends from management companies and other subsidiaries of the Company that have elected TRS status.  These companies pay federal and state income tax at the full applicable corporate rates.  They will attempt to minimize the amount of these taxes, but we cannot guarantee whether or the extent to which, measures taken to minimize these taxes will be successful.  To the extent that these companies are required to pay taxes, the cash available for distribution from these management companies by us to shareholders will be reduced accordingly.

 

State and Local Taxes.  We may be subject to state or local taxation in various jurisdictions, including those in which we transact business or reside.  Our state and local tax treatment may not conform to the federal income tax consequence discussed above.  Consequently, prospective shareholders should consult their own tax advisors regarding the effect of state and local tax laws on an investment in common shares.

 

Taxation of Domestic Shareholders Subject to U.S. Tax

 

General.  If we qualify as a REIT, distributions made to our taxable domestic shareholders with respect to their common shares, other than capital gain distributions and distributions attributable to taxable REIT subsidiaries, will be treated as ordinary income to the extent that the distributions come out of earnings and profits.  These distributions will not be eligible for the dividends received deduction for shareholders that are corporations nor will they constitute “qualified dividends” under the Jobs and Growth Tax Relief Reconciliation Act of 2003, meaning that such dividends will be taxed at marginal rates applicable to ordinary income rather than the special capital gain rates applicable to qualified

 

20

 

dividends paid to shareholders who satisfy applicable holding period requirements.  In determining whether distributions are out of earnings and profits, we will allocate our earnings and profits first to preferred shares and second to the common shares.  The portion of post 2002 ordinary dividends, which represent ordinary dividends we receive from a TRS, will be designated as qualified dividends to REIT shareholders.  Qualified dividends paid to noncorporate shareholders are eligible for preferential tax rates.

 

To the extent we make distributions to our taxable domestic shareholders in excess of our earnings and profits, such distributions will be considered a return of capital.  Such distributions will be treated as a tax-free distribution and will reduce the tax basis of a shareholder’s common shares by the amount of the distribution so treated. To the extent that such distributions cumulatively exceed a taxable domestic shareholder’s tax basis, such distributions are taxable as a gain from the sale of his shares.  Shareholders may not include in their individual income tax returns any of our net operating losses or capital losses.

 

Distributions made by us that we properly designate as capital gain dividends will be taxable to taxable domestic shareholders as gain from the sale or exchange of a capital asset held for more than one year.  This treatment applies only to the extent that the designated distributions do not exceed our actual net capital gain for the taxable year.  It applies regardless of the period for which a domestic shareholder has held his or her common shares.  Despite this general rule, corporate shareholders may be required to treat up to 20% of certain capital gain dividends as ordinary income.

 

Generally, we will classify a portion of our designated capital gains dividend as a 20% rate gain distribution (pre-May 6, 2003), 15% rate gain distribution (post-May 5, 2003) and the remaining portion as an unrecaptured Section 1250 gain distribution.  As the names suggest, a 20% or 15% rate gain distribution would be taxable to taxable domestic shareholders that are individuals, estates or trusts at a maximum rate of 20% or 15%, depending upon the timing of the capital gain to the REIT.  An unrecaptured Section 1250 gain distribution would be taxable to taxable domestic shareholders that are individuals, estates or trusts at a maximum rate of 25%.

 

If, for any taxable year, we elect to designate as capital gain dividends any portion of the dividends paid or made available for the year to holders of all classes of shares of beneficial interest, then the portion of the capital gains dividends that will be allocable to the holders of common shares will be the total capital gain dividends multiplied by a fraction.  The numerator of the fraction will be the total dividends paid or made available to the holders of the common shares for the year.  The denominator of the fraction will be the total dividends paid or made available to holders of all classes of shares of beneficial interest.

 

In general, a shareholder will recognize gain or loss for federal income tax purposes on the sale or other disposition of common shares in an amount equal to the difference between:

 

(a)                            the amount of cash and the fair market value of any property received in the sale or other disposition; and

 

(b)                           the shareholder’s adjusted tax basis in the common shares.

 

The gain or loss will be capital gain or loss if the common shares were held as a capital asset.  Generally, the capital gain or loss will be long-term capital gain or loss if the common shares were held for more than one year.

 

In general, a loss recognized by a shareholder upon the sale of common shares that were held for six months or less, determined after applying certain holding period rules, will be treated as long-term capital loss to the extent that the shareholder received distributions that were treated as long-term capital gains.  For shareholders who are individuals, trusts and estates, the long-term capital loss will be

 

21

 

apportioned among the applicable long-term capital gain rates to the extent that distributions received by the shareholder were previously so treated.

 

We may elect to retain (rather than distribute as is generally required) net capital gain for a taxable year and pay the income tax on that gain.  If we make this election, shareholders must include in income, as long-term capital gain, their proportionate share of the undistributed net capital gain. Shareholders will be treated as having paid their proportionate share of the tax paid by us on these gains. Accordingly, they will receive a credit or refund for the amount.  Shareholders will increase the basis in their common shares by the difference between the amount of capital gain included in their income and the amount of the tax they are treated as having paid. Our earnings and profits will be adjusted appropriately.

 

Taxation of Domestic Tax-Exempt Shareholders

 

Most tax-exempt organizations are not subject to federal income tax except to the extent of their unrelated business taxable income, which is often referred to as UBTI.  Unless a tax-exempt shareholder holds its common shares as debt financed property or uses the common shares in an unrelated trade or business, distributions to the shareholder should not constitute UBTI.  Similarly, if a tax-exempt shareholder sells common shares, the income from the sale should not constitute UBTI unless the shareholder held the shares as debt financed property or used the shares in a trade or business.

 

However, for tax-exempt shareholders that are social clubs, voluntary employee benefit associations, supplemental unemployment benefit trusts, and qualified group legal services plans, income from owning or selling common shares will constitute UBTI unless the organization is able to properly deduct amounts set aside or placed in reserve so as to offset the income generated by its investment in common shares.  These shareholders should consult their own tax advisors concerning these set aside and reserve requirements which are set forth in the Internal Revenue Code.

 

In addition, certain pension trusts that own more than 10% of a “pension-held REIT” must report a portion of the distributions that they receive from the REIT as UBTI.  We have not been and do not expect to be treated as a pension-held REIT for purposes of this rule.

 

Taxation of Foreign Shareholders

 

The following is a discussion of certain anticipated United States federal income tax consequences of the ownership and disposition of common shares applicable to a foreign shareholder.  For purposes of this discussion, a “foreign shareholder” is any person other than:

 

(a)                            a citizen or resident of the United States;

 

(b)                           a corporation or partnership created or organized in the United States or under the laws of the United States or of any state thereof; or

 

(c)                            an estate or trust whose income is includable in gross income for United States federal income tax purposes regardless of its source.

 

Distributions by Us

 

Distributions by us to a foreign shareholder that are neither attributable to gain from sales or exchanges by us of United States real property interests nor designated by us as capital gains dividends will be treated as dividends of ordinary income to the extent that they are made out of our earnings and profits.  These distributions ordinarily will be subject to withholding of United States federal income tax on a gross basis at a 30% rate, or a lower treaty rate, unless the dividends are treated as effectively connected with the conduct by the foreign shareholder of a United States trade or business. Please note

 

22

 

that under certain treaties lower withholding rates generally applicable to dividends do not apply to dividends from REIT’s.  Dividends that are effectively connected with a United States trade or business will be subject to tax on a net basis at graduated rates, and are generally not subject to withholding.  Certification and disclosure requirements must be satisfied before a dividend is exempt from withholding under this exemption.  A foreign shareholder that is a corporation also may be subject to an additional branch profits tax at a 30% rate or a lower treaty rate.

 

We expect to withhold United States income tax at the rate of 30% on any distributions made to a foreign shareholder unless:

 

(a)                            a lower treaty rate applies and any required form or certification evidencing eligibility for that reduced rate is filed with us; or

(b)                           the foreign shareholder files an IRS Form W-8ECI with us claiming that the distribution is effectively connected income.

 

A distribution in excess of our current or accumulated earnings and profits will not be taxable to a foreign shareholder to the extent that the distribution does not exceed the adjusted basis of the shareholder’s common shares.  Instead, the distribution will reduce the adjusted basis of the common shares.  To the extent that the distribution exceeds the adjusted basis of the common shares, it will give rise to gain from the sale or exchange of the shareholder’s common shares.  The tax treatment of this gain is described below.

 

As a result of a legislative change made by the Small Business Job Protection Act of 1996, we may be required to withhold 10% of any distribution in excess of our earnings and profits.  Consequently, although we intend to withhold at a rate of 30%, or a lower applicable treaty rate, on the entire amount of any distribution, to the extent that we do not do so, distributions will be subject to withholding at a rate of 10%.  However, a foreign shareholder may seek a refund of the withheld amount from the IRS if it subsequently determined that the distribution was, in fact, in excess of our earnings and profits, and the amount withheld exceeded the foreign shareholder’s United States tax liability with respect to the distribution.

 

Distributions to a foreign shareholder that we designate at the time of the distributions as capital gain dividends, other than those arising from the disposition of a United States real property interest, generally will not be subject to United States federal income taxation unless:

 

(a)                            the investment in the common shares is effectively connected with the foreign shareholder’s United States trade or business, in which case the foreign shareholder will be subject to the same treatment as domestic shareholders, except that a shareholder that is a foreign corporation may also be subject to the branch profits tax, as discussed above; or

 

(b)                           the foreign shareholder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and has a “tax home” in the United States, in which case the nonresident alien individual will be subject to a 30% tax on the individual’s capital gains.

 

Under the Foreign Investment in Real Property Tax Act, which is known as FIRPTA, distributions to a foreign shareholder that are attributable to gain from sales or exchanges of United States real property interests will cause the foreign shareholder to be treated as recognizing the gain as income effectively connected with a United States trade or business. This rule applies whether or not a distribution is designated as a capital gain dividend.  Accordingly, foreign shareholders generally would be taxed on these distributions at the same rates applicable to U.S. shareholders, subject to a special alternative minimum tax in the case of nonresident alien individuals.  In addition, a foreign corporate shareholder might be subject to the branch profits tax discussed above.  We are required to withhold 35%

 

23

 

of these distributions.  The withheld amount can be credited against the foreign shareholder’s United States federal income tax liability.

 

Although the law is not entirely clear on the matter, it appears that amounts we designate as undistributed capital gains in respect of the common shares held by U.S. shareholders would be treated with respect to foreign shareholders in the same manner as actual distributions of capital gain dividends. Under that approach, foreign shareholders would be able to offset as a credit against the United States federal income tax liability their proportionate share of the tax paid by us on these undistributed capital gains.  In addition, foreign shareholders would be able to receive from the IRS a refund to the extent their proportionate share of the tax paid by us were to exceed their actual United States federal income tax liability.

 

Sales of Common Shares

 

Gain recognized by a foreign shareholder upon the sale or exchange of common shares generally will not be subject to United States taxation unless the shares constitute a “United States real property interest” within the meaning of FIRPTA.  The common shares will not constitute a United States real property interest so long as we are a domestically controlled REIT.  A domestically controlled REIT is a REIT in which at all times during a specified testing period less than 50% in value of its stock is held directly or indirectly by foreign shareholders.  We believe that we are a domestically controlled REIT.  Therefore, we believe that the sale of common shares will not be subject to taxation under FIRPTA.  However, because common shares and preferred shares are publicly traded, we cannot guarantee that we will continue to be a domestically controlled REIT.  In any event, gain from the sale or exchange of common shares not otherwise subject to FIRPTA will be subject to U.S. tax, if either:

 

(a)                            the investment in the common shares is effectively connected with the foreign shareholder’s United States trade or business, in which case the foreign shareholder will be subject to the same treatment as domestic shareholders with respect to the gain; or

 

(b)                           the foreign shareholder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and has a tax home in the United States, in which case the nonresident alien individual will be subject to a 30% tax on the individual’s capital gains.

 

Even if we do not qualify as or cease to be a domestically controlled REIT, gain arising from the sale or exchange by a foreign shareholder of common shares still would not be subject to United States taxation under FIRPTA as a sale of a United States real property interest if:

 

(a)                            the class or series of shares being sold is “regularly traded,” as defined by applicable IRS regulations, on an established securities market such as the New York Stock Exchange; and

 

(b)                           the selling foreign shareholder owned 5% or less of the value of the outstanding class or series of shares being sold throughout the five-year period ending on the date of the sale or exchange.

 

If gain on the sale or exchange of common shares were subject to taxation under FIRPTA, the foreign shareholder would be subject to regular United States income tax with respect to the gain in the same manner as a taxable U.S. shareholder, subject to any applicable alternative minimum tax, a special alternative minimum tax in the case of nonresident alien individuals and the possible application of the branch profits tax in the case of foreign corporations.  The purchaser of the common shares would be required to withhold and remit to the IRS 10% of the purchase price.

 

24

 

Available Information

 

You may access our Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q, our Current Reports on Form 8-K and any amendments to any of those reports we file with the SEC free of charge at our website, www.equityapartments.com.  These reports are made available at our website as soon as reasonably practicable after we file them with the SEC.

 

Item 2.  The Properties

 

As of December 31, 2003, the Company owned or had investments in 968 properties in 34 states consisting of 207,506 units.  The Company’s properties are more fully described as follows:

 

Type		Properties		Units		Average Units		December 31, 2003 Occupancy
Garden		614		162,828		265		92.4	%
Mid/High-Rise		44		12,802		291		86.4	%
Ranch		309		28,119		91		91.1	%
Military Housing		1		3,757		3,757		95.4	%
Total		968		207,506

 

Resident leases are generally for twelve months in length and typically require security deposits.  The garden-style properties are generally defined as properties with two and/or three story buildings while the mid-rise/high-rise are defined as properties with greater than three story buildings.  These two property types typically provide residents with amenities, which may include a clubhouse, swimming pool, laundry facilities and cable television access. Certain of these properties offer additional amenities such as saunas, whirlpools, spas, sports courts and exercise rooms or other amenities.  The ranch-style properties are defined as single story properties, which do not provide additional amenities for residents other than laundry facilities and cable television access.  The military housing properties are defined as those properties located on military bases.

 

It is management’s role to monitor compliance with property policies and to provide preventive maintenance of the properties including common areas, facilities and amenities.  The Company has a dedicated training and education department that creates and coordinates training and strategic implementation for the Company’s property management personnel.  The Company believes that, due in part to its emphasis on training and employee quality, the properties historically have had high occupancy rates.

 

The distribution of the properties throughout the United States reflects the Company’s belief that geographic diversification helps insulate the portfolio from regional and economic influences.  At the same time, the Company has sought to create clusters of properties within each of its primary markets in order to achieve economies of scale in management and operation.  The Company may nevertheless acquire additional multifamily properties located anywhere in the continental United States.

 

The following tables set forth certain information by type and state relating to the Company’s properties at December 31, 2003:

 

25

 

GARDEN-STYLE PROPERTIES

 

State		Properties		Units		Percentage of Total Units		December 31, 2003 Occupancy
Alabama		5		896		0.43	%	94.2	%
Arizona		45		12,735		6.14		88.7
California		91		23,025		11.10		93.9
Colorado		29		8,175		3.94		91.1
Connecticut		22		2,633		1.27		94.4
Florida		75		22,158		10.68		93.7
Georgia		36		11,277		5.43		92.7
Illinois		7		2,360		1.14		93.2
Kansas		3		1,130		0.54		90.4
Maine		5		672		0.32		95.9
Maryland		23		5,419		2.61		93.7
Massachusetts		35		4,829		2.33		94.7
Michigan		8		2,388		1.15		90.9
Minnesota		17		3,819		1.84		90.9
Missouri		9		1,878		0.91		91.2
Nevada		3		1,220		0.59		90.1
New Hampshire		1		390		0.19		89.9
New Jersey		2		980		0.47		95.2
New Mexico		2		369		0.18		90.1
New York		1		300		0.14		91.9
North Carolina		31		8,299		4.00		92.9
Oklahoma		8		2,036		0.98		92.1
Oregon		10		3,604		1.74		92.5
Rhode Island		5		778		0.37		95.5
Tennessee		10		3,171		1.53		91.6
Texas		73		22,816		11.00		91.3
Virginia		14		4,696		2.26		93.3
Washington		41		10,089		4.86		90.4
Wisconsin		3		686		0.33		87.6
Total Garden-Style		614		162,828		78.47	%
Average Garden-Style				265				92.4	%

 

26

 

MID-RISE/HIGH RISE PROPERTIES

 

State		Properties		Units		Percentage of Total Units		December 31, 2003 Occupancy
California		3		873		0.42	%	55.5	%
Colorado		1		355		0.17		65.2
Connecticut		2		407		0.20		93.7
Florida		3		653		0.31		95.4
Georgia		1		322		0.16		91.0
Illinois		1		1,083		0.52		89.3
Massachusetts		12		3,253		1.57		93.4
Minnesota		1		163		0.08		94.5
New Jersey		5		1,365		0.66		87.2
Ohio		1		747		0.36		70.2
Oregon		1		525		0.25		88.5
Texas		3		596		0.29		90.7
Virginia		5		1,660		0.80		92.4
Washington		5		800		0.39		93.5
Total Mid-Rise/High-Rise		44		12,802		6.17	%
Average Mid-Rise/High-Rise				291				86.4	%

 

 

RANCH-STYLE PROPERTIES

 

Alabama		1		69		0.03	%	100.0	%
Florida		87		8,176		3.94		91.0
Georgia		53		4,428		2.13		89.6
Indiana		44		4,059		1.96		90.6
Kentucky		19		1,533		0.74		90.4
Maryland		4		414		0.20		96.2
Michigan		17		1,536		0.74		91.7
Ohio		75		7,102		3.42		92.2
Pennsylvania		5		469		0.23		88.3
South Carolina		2		187		0.09		93.0
Tennessee		2		146		0.07		93.2
Total Ranch-Style		309		28,119		13.55	%
Average Ranch-Style				91				91.1	%

 

 

MILITARY HOUSING PROPERTIES

 

Washington (Ft. Lewis)		1		3,757		1.81	%	95.4	%
Total Military Housing		1		3,757		1.81	%
Average Military Housing				3,757				95.4	%
Total Residential Portfolio		968		207,506		100	%

 

27

 

The properties currently in various stages of development at December 31, 2003 are included in the following table.

 

DEVELOPMENT PROJECTS as of December 31, 2003

(Amounts in millions except for project and unit amounts)

 

		Location		Units		Estimated Development Cost			Funded as of 12/31/2003			Estimated Future Fundings			Total Fundings (1)			Estimated Completion Date
Unconsolidated Projects
Water Terrace I (Regatta I) (2)		Marina Del Rey, CA		450		$	235.3		$	73.0		—			$	73.0		Completed
Watermarke		Irvine, CA		535		120.6			35.2			—			35.2			1Q 2004
Bella Vista I&II (Warner Ridge I&II)		Woodland Hills, CA		315		80.9			24.5			—			24.5			1Q 2004
Concord Center (2)		Concord, CA		259		52.3			13.1			—			13.1			Completed
2400 M Street		Washington, DC		333		104.2			37.2			—			37.2			2Q 2005
1111 25th Street (2440 M St.)		Washington, DC		140		37.5			11.3			—			11.3			4Q 2004
1210 Massachusetts Ave.		Washington, DC		142		36.3			9.1			—			9.1			2Q 2004
13th & N Street		Washington, DC		170		35.4			12.4			—			12.4			1Q 2004
North Pier at Harborside (2)		Jersey City, NJ		297		94.2			24.0			—			24.0			Completed
City View at the Highlands (Lombard)		Lombard, IL		403		67.1			16.8			—			16.8			1Q 2004
Ball Park Lofts (2)		Denver, CO		355		56.4			14.1			—			14.1			Completed
City Place (Westport) (2)		Kansas City, MO		288		34.7			8.7			—			8.7			Completed
Marina Bay II (2)		Quincy, MA		108		22.8			5.7			—			5.7			Completed
Total Projects		13		3,795		$	977.7		$	285.1		$	0.0		$	285.1

 

(1)                                  The Company generally funds between 25% and 35% of the estimated development cost for the unconsolidated projects (constituting 100% of the equity), with the remaining cost financed through third-party construction mortgages.

(2)                                  Properties were substantially complete as of December 31, 2003.  As such, these properties are also included in the outstanding property and unit counts.

 

Item 3.  Legal Proceedings

 

The Company is a party to a class action lawsuit in Florida state court alleging that several of the types of fees that the Company charged when residents breached their leases were illegal, as were all efforts to collect them.  The Company is vigorously contesting the plaintiffs’ claims and has sought immediate appellate review of the 2003 class action certification decision.  Due to the uncertainty of many critical factual and legal issues, including the viability of the case as a class action, it is not possible to determine or predict the outcome.  While no assurances can be given, the Company does not believe that this lawsuit, if adversely determined, will have a material adverse effect on the Company.

 

The Company does not believe there is any other litigation pending or threatened against the Company which, individually or in the aggregate, reasonably may be expected to have a material adverse effect on the Company.

 

Item 4.  Submission of Matters to a Vote of Security Holders

 

None.

 

28

 

PART II

 

Item 5.           Market for Registrant’s Common Equity and Related Shareholder Matters

 

The following table sets forth, for the years indicated, the high, low and closing sales prices for and the distributions paid on the Company’s Common Shares, which trade on the New York Stock Exchange under the trading symbol EQR.

 

					Sales Price
		High			Low			Closing			Distributions
2003
Fourth Quarter Ended December 31, 2003		$	30.30		$	28.03		$	29.51		$	0.4325
Third Quarter Ended September 30, 2003		$	29.79		$	25.69		$	29.28		$	0.4325
Second Quarter Ended June 30, 2003		$	27.95		$	24.05		$	25.95		$	0.4325
First Quarter Ended March 31, 2003		$	25.99		$	23.12		$	24.07		$	0.4325

 

					Sales Price
		High			Low			Closing			Distributions
2002
Fourth Quarter Ended December 31, 2002		$	26.70		$	21.55		$	24.58		$	0.4325
Third Quarter Ended September 30, 2002		$	28.81		$	22.40		$	23.94		$	0.4325
Second Quarter Ended June 30, 2002		$	30.96		$	27.90		$	28.75		$	0.4325
First Quarter Ended March 31, 2002		$	29.33		$	25.84		$	28.74		$	0.4325

 

The number of beneficial holders of Common Shares at January 31, 2004, was approximately 55,000.  The number of outstanding Common Shares as of January 31, 2004 was 278,543,863.

 

Item 6.           Selected Financial Data

 

The following table sets forth selected financial and operating information on a historical basis for the Company.  The following information should be read in conjunction with all of the financial statements and notes thereto included elsewhere in this Form 10-K.  The historical operating and balance sheet data have been derived from the historical Financial Statements of the Company.  All amounts have also been restated in accordance with the discontinued operations provisions of SFAS No. 144.  Certain capitalized terms as used herein are defined in the Notes to Consolidated Financial Statements.

 

29

 

CONSOLIDATED HISTORICAL FINANCIAL INFORMATION

(Financial information in thousands except for per share and property data)

 

		Year Ended December 31,
		2003			2002			2001			2000			1999
OPERATING DATA:
Total revenues from continuing operations		$	1,823,298		$	1,809,163		$	1,844,003		$	1,733,026		$	1,508,648
Income from continuing operations		$	211,558		$	246,840		$	304,683		$	260,667		$	224,489
Net income		$	543,847		$	421,313		$	474,023		$	549,451		$	393,881
Net income available to Common Shares		$	426,639		$	324,162		$	362,580		$	437,510		$	280,685
Earnings per share – basic:
Income from continuing operations available to Common Shares		$	0.44		$	0.60		$	0.77		$	0.67		$	0.52
Net income available to Common Shares		$	1.57		$	1.19		$	1.36		$	1.69		$	1.15
Weighted average Common Shares outstanding		272,337			271,974			267,349			259,015			244,350
Earnings per share – diluted:
Income from continuing operations available to Common Shares		$	0.43		$	0.59		$	0.76		$	0.67		$	0.52
Net income available to Common Shares		$	1.55		$	1.18		$	1.34		$	1.67		$	1.14
Weighted average Common Shares outstanding		297,041			297,969			295,213			291,266			271,310
Distributions declared per Common Share outstanding		$	1.73		$	1.73		$	1.68		$	1.575		$	1.47
BALANCE SHEET DATA (at end of period):
Real estate, before accumulated depreciation		$	12,874,379		$	13,046,263		$	13,016,183		$	12,591,539		$	12,238,963
Real estate, after accumulated depreciation		$	10,578,366		$	10,934,246		$	11,297,338		$	11,239,303		$	11,168,476
Total assets		$	11,466,893		$	11,810,917		$	12,235,625		$	12,263,966		$	11,715,689
Total debt		$	5,360,489		$	5,523,699		$	5,742,758		$	5,706,152		$	5,473,868
Minority Interests		$	600,929		$	611,303		$	635,822		$	612,618		$	456,979
Shareholders’ equity		$	5,015,441		$	5,197,123		$	5,413,950		$	5,619,547		$	5,504,934
OTHER DATA:
Total properties (at end of period)		968			1,039			1,076			1,104			1,064
Total apartment units (at end of period)		207,506			223,591			224,801			227,704			226,317
Funds from operations available to Common
Shares and OP Units (1)(2)		$	640,390		$	719,265		$	706,294		$	719,580		$	619,152
Cash flow provided by (used for):
Operating activities		$	747,981		$	888,938		$	889,668		$	841,826		$	788,970
Investing activities		$	330,366		$	(49,297	)	$	57,429		$	(563,175	)	$	(526,851	)
Financing activities		$	(1,058,643	)	$	(861,369	)	$	(919,266	)	$	(283,996	)	$	(236,967	)

 

(1)       The National Association of Real Estate Investment Trusts (“NAREIT”) defines funds from operations (“FFO”) (April 2002 White Paper) as net income (computed in accordance with accounting principles generally accepted in the United States), excluding gains (or losses) from sales of property, plus depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures.  Adjustments for unconsolidated partnerships and joint ventures will be calculated to reflect funds from operations on the same basis. FFO has also been adjusted by preferred distributions and premium on redemption of preferred shares to arrive at FFO available to Common Shares and OP Units.  The April 2002 White Paper states that gain or loss on sales of property is excluded from FFO for previously depreciated operating properties only.  Once the Company commences the conversion of units to condominiums, it simultaneously discontinues depreciation of such property.  Accordingly, the Company included in FFO its incremental gains or losses from the sale of condominium units to third parties, which

 

30

 

represented net gains of $10,280, $1,682 and $0 for the years ended December 31, 2003, 2002 and 2001, respectively.  Effective January 1, 2003, the Company no longer adds back impairment losses when computing FFO in accordance with NAREIT’s definition.  As a result, FFO for the years ended December 31, 2002, 2001 and 2000 have been reduced by $18,284, $71,766 and $1,000, respectively, to conform to the current year presentation.   For the year ended December 31, 2001, FFO has been reduced by $5,324 to reflect the SEC’s clarification of EITF Topic D-42 regarding premiums on redemption of preferred shares.  See Item 7 for a reconciliation between net income and FFO.

 

(2)       The Company believes that FFO is helpful to investors as a supplemental measure of the operating performance of a real estate company because it provides investors an understanding of the ability of the Company to incur and service debt and to make capital expenditures.  FFO in and of itself does not represent net income or net cash flows from operating activities in accordance with GAAP.  Therefore, FFO should not be exclusively considered as an alternative to net income or to net cash flows from operating activities as determined by GAAP or as a measure of liquidity.  The Company’s calculation of FFO may differ from other real estate companies due to, among other items, variations in cost capitalization policies for capital expenditures and, accordingly, may not be comparable to such other real estate companies.

 

Item 7.  Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Overview

 

The following discussion and analysis of the results of operations and financial condition of the Company should be read in connection with the Consolidated Financial Statements and Notes thereto. Due to the Company’s ability to control the Operating Partnership and its subsidiaries other than entities owning interests in the Unconsolidated Properties and certain other entities in which the Company has investments, the Operating Partnership and each such subsidiary entity has been consolidated with the Company for financial reporting purposes.  Capitalized terms used herein and not defined are as defined elsewhere in this Annual Report on Form 10-K for the year ended December 31, 2003.

 

Forward-looking statements in this Item 7 as well as Item 1 of this Annual Report on Form 10-K are intended to be made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.  The words “believes”, “estimates”, “expects” and “anticipates” and other similar expressions that are predictions of or indicate future events and trends and which do not relate solely to historical matters identify forward-looking statements.  Such forward-looking statements are subject to risks and uncertainties, which could cause actual results, performance, or achievements of the Company to differ materially from anticipated future results, performance or achievements expressed or implied by such forward-looking statements.  Factors that might cause such differences include, but are not limited to, the following:

 

•                  The total number of development units, cost of development and completion dates as well as anticipated capital expenditures for replacements and building improvements all reflect the Company’s best estimates and are subject to uncertainties arising from changing economic conditions (such as the cost of labor and construction materials), competition and local government regulation;

•                  Sources of capital to the Company or labor and materials required for maintenance, repair, capital expenditure or development are more expensive than anticipated;

•                  Occupancy levels and market rents may be adversely affected by national and local economic and market conditions including, without limitation, new construction of multifamily housing, slow employment growth, availability of low interest mortgages for single-family home buyers and the potential for geopolitical instability, all of which are beyond the Company’s control; and

•                  Additional factors as discussed in Part I of this Annual Report on Form 10-K, particularly those under “Risk Factors”.

 

31

 

Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof.  The Company undertakes no obligation to publicly release any revisions to these forward-looking statements, which may be made to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events.  Forward-looking statements and related uncertainties are also included in Note 7 and 14 to the Notes to Consolidated Financial Statements in this report.

 

Results of Operations

 

The following table summarizes the number of properties and related units for the periods presented:

 

		Properties		Units		Purchase / Sale Price $ Millions
At December 31, 2001		1,076		224,801
2002 Acquisitions		12		3,634		$	289.9
Ft. Lewis Military Housing		1		3,652
2002 Dispositions		(58	)	(10,713	)	$	546.2
2002 Completed Developments		8		2,201
Unit Configuration Changes		—		16
At December 31, 2002		1,039		223,591
2003 Acquisitions		17		5,200		$	684.1
2003 Dispositions		(96	)	(23,486	)	$	1,217.9
2003 Completed Developments		8		2,112
Unit Configuration Changes		—		89
At December 31, 2003		968		207,506

 

Properties that the Company owned for all of both 2003 and 2002 (the “2003 Same Store Properties”), which represented 171,841 units, impacted the Company’s results of operations.  Properties that the Company owned for all of both 2002 and 2001 (the “2002 Same Store Properties”), which represented 188,027 units, also impacted the Company’s results of operations.  Both the 2003 Same Store Properties and 2002 Same Store Properties are discussed in the following paragraphs.

 

The Company’s acquisition, disposition and completed development activities also impacted overall results of operations for the years ended December 31, 2003 and 2002.  The  impacts of these activities are also discussed in greater detail in the following paragraphs.

 

Comparison of the year ended December 31, 2003 to the year ended December 31, 2002

 

For the year ended December 31, 2003, income before allocation to Minority Interests, income (loss) from investments in unconsolidated entities, net gain on sales of unconsolidated entities, discontinued operations and cumulative effect of change in accounting principle decreased by approximately $23.1 million when compared to the year ended December 31, 2002.

 

Revenues from the 2003 Same Store Properties decreased primarily as a result of lower overall physical occupancy, increased concessions and lower rental rates charged to both new and renewal residents.  Property operating expenses from the 2003 Same Store Properties increased primarily due to higher payroll, maintenance, utility, real estate taxes, insurance, leasing and advertising and building costs.  The following tables provide comparative revenue, expense, net operating income (“NOI”) and weighted average occupancy for the 2003 Same Store Properties (NOI represents rental income less: property and maintenance expense; real estate taxes and insurance expense; and property management expense):

 

32

 

2003 vs. 2002

Year over Year Same-Store Results

$ in Millions – 171,841 Same-Store Units

 

 

Same-Store Occupancy Statistics

 

 

The Company’s primary financial measure for evaluating each of its apartment communities is NOI.  The Company believes that NOI is helpful to investors as a supplemental measure of the operating performance of a real estate company because it is a direct measure of the actual operating results of the Company’s apartment communities.

 

For properties that the Company acquired prior to January 1, 2003 and expects to continue to own through December 31, 2004, the Company anticipates the following same store results for the full year ending December 31, 2004:

 

2004 Same-Store Assumptions

 

 

These 2004 assumptions are based on current expectations and are forward-looking.

 

Rental income from properties other than 2003 Same Store Properties increased by approximately $47.5 million primarily as a result of revenue from newly acquired properties not yet included as 2003 Same Store Properties and additional Partially Owned Properties consolidated in the fourth quarter of 2002 and during the year ended December 31, 2003.

 

Fee and asset management revenues, net of fee and asset management expenses, increased by $4.9 million primarily as a result of additional income allocated from Ft. Lewis.  As of December 31, 2003 and 2002, the Company managed 18,475 units and 18,965 units, respectively, for third parties and unconsolidated entities.

 

Property management expenses include off-site expenses associated with the self-management of the Company’s properties as well as management fees paid to any third party management companies.  These expenses decreased by approximately $4.4 million or 6.0%.  This decrease is primarily attributable to a reversal of a profit sharing accrual in the first quarter of 2003 related to the 2002 calendar year as the Company didn’t achieve its stated goals and management elected not to make a discretionary contribution to the plan.  In addition, the Company recorded lower expense in connection with granting less restricted

 

33

 

shares and reducing the expense associated with the Company’s matched funding of its 401(k) plan during 2003 and not incurring an expense for 2003 discretionary profit sharing contributions.

 

Depreciation expense, which includes depreciation on non-real estate assets, increased $25.3 million primarily as a result of properties acquired after December 31, 2002, many of which had significantly higher per unit acquisition costs than properties previously acquired, and additional depreciation on capital expenditures for all properties owned.

 

General and administrative expenses, which include corporate operating expenses, decreased approximately $7.7 million between the periods under comparison.  This decrease was primarily due to lower expenses recorded in connection with granting less restricted shares to employees during 2003, partially offset by approximately a $2.6 million increase related to the Company’s decision to begin to expense its stock based compensation in accordance with SFAS No. 123 and its amendment (SFAS No. 148).  In addition, lower state income and franchise taxes also contributed to this decrease.

 

The Company recorded impairment charges on its technology investments and its corporate housing business of approximately $1.2 million and $18.3 million for the years ended December 31, 2003 and 2002, respectively.  See Note 22 in the Notes to Consolidated Financial Statements for further discussion.

 

Interest and other income increased by approximately $1.4 million, primarily as a result of higher cash balances available for short-term investments throughout 2003.

 

Interest expense, including amortization of deferred financing costs, decreased approximately $6.1 million primarily due to lower variable interest rates and lower overall levels of debt.  During the year ended December 31, 2003, the Company capitalized interest costs of approximately $20.6 million as compared to $27.2 million for the year ended December 31, 2002.  This capitalization of interest primarily related to equity investments in unconsolidated entities engaged in development activities.  The effective interest cost on all indebtedness for the year ended December 31, 2003 was 6.36% as compared to 6.54% for the year ended December 31, 2002.

 

Loss from investments in unconsolidated entities increased approximately $6.4 million between the periods under comparison.  This increase is primarily the result of increased operating losses from equity investments partially offset by unrealized gains on derivative instruments.

 

Net gain on sales of discontinued operations increased approximately $206.4 million between the periods under comparison.  This increase is primarily the result of a greater number of properties sold during the year ended December 31, 2003, as well as the fact that several properties had lower net carrying values at sale.

 

Discontinued operations, net, decreased approximately $48.6 million between the periods under comparison.  See Note 16 in the Notes to Consolidated Financial Statements for further discussion.

 

Comparison of the year ended December 31, 2002 to the year ended December 31, 2001

 

For the year ended December 31, 2002, income before allocation to Minority Interests, income (loss) from investments in unconsolidated entities, net gain on sales of unconsolidated entities, discontinued operations and cumulative effect of change in accounting principle decreased by approximately $61.0 million when compared to the year ended December 31, 2001.

 

Revenues from the 2002 Same Store Properties decreased primarily as a result of lower overall physical occupancy, increased concessions and lower rental rates charged to both new and renewal residents.  Property operating expenses from the 2002 Same Store Properties, which include property and maintenance, real estate taxes and insurance and an allocation of property management expenses, remained relatively stable with increases in real estate taxes and insurance costs offset by a decrease in utility costs.

 

34

 

The following tables provide comparative revenue, expense, NOI and weighted average occupancy for the 2002 Same Store Properties:

2002 vs. 2001

Year over Year Same-Store Results

 

$ in Millions – 188,027 Same Store Units

 

 

Same-Store Occupancy Statistics

 

 

Rental income from properties other than 2002 Same Store Properties increased by approximately $19.8 million primarily as a result of revenue from newly acquired properties not yet included as 2002 Same Store Properties.

 

Fee and asset management revenues, net of fee and asset management expenses, increased by $1.5 million as a result of managing additional units at Fort Lewis, Washington starting in April 2002.  As of December 31, 2002 and 2001, the Company managed 18,965 units and 16,539 units, respectively, for third parties and unconsolidated entities.

 

Property management expenses include off-site expenses associated with the self-management of the Company’s properties.  These expenses decreased by approximately $4.6 million or 5.9%.  This decrease is primarily attributable to lower amounts accrued for employee bonuses and profit sharing for 2002 and lower headcount in 2002.

 

Depreciation expense, which includes depreciation on non-real estate assets, increased $22.3 million primarily as a result of properties acquired after December 31, 2001, many of which had significantly higher per unit acquisition costs than properties previously acquired, and additional depreciation on capital expenditures for all properties owned.

 

General and administrative expenses, which include corporate operating expenses, increased approximately $11.1 million between the years under comparison.  This increase was primarily due to retirement plan expenses for certain key executives, restricted shares/awards granted to key employees, additional compensation charges and costs associated with the Company’s new President, higher state income taxes in Michigan and New Jersey and income taxes incurred by one of the Company’s taxable REIT subsidiaries which has an ownership interest in properties that in prior periods were classified as Unconsolidated Properties.

 

The Company recorded impairment charges on its technology investments and its corporate housing business of approximately $18.3 million and $11.8 million for the years ended December 31, 2002 and 2001, respectively.  See Note 22 in the Notes to Consolidated Financial Statements for further discussion.

 

35

 

Interest and other income decreased by approximately $6.7 million, primarily as a result of lower balances available for investment and related interest rates being earned on short-term investment accounts along with lower balances on deposit in tax-deferred exchange accounts.

 

Interest income – investment in mortgage notes decreased by $8.8 million as a result of the consolidation of previously Unconsolidated Properties in July 2001.  No additional interest income will be recognized on such mortgage notes in future years as the Company now consolidates the results related to these previously Unconsolidated Properties.

 

Interest expense, including amortization of deferred financing costs, decreased approximately $11.0 million primarily due to lower variable interest rates and lower overall levels of debt.  During the year ended December 31, 2002, the Company capitalized interest costs of approximately $27.2 million as compared to $28.2 million for the year ended December 31, 2001.  This capitalization of interest primarily related to equity investments in unconsolidated entities engaged in development activities.  The effective interest cost on all indebtedness for the year ended December 31, 2002 was 6.54% as compared to 6.89% for the year ended December 31, 2001.

 

Income (loss) from investments in unconsolidated entities decreased approximately $7.5 million between the periods under comparison.  This decrease is primarily the result of increased equity losses and unrealized losses on derivative instruments.

 

Net gain on sales of discontinued operations decreased approximately $44.6 million between the periods under comparison.  This decrease is primarily the result of the properties sold in 2001 having a lower net carrying value at sale, which resulted in higher gain recognition for financial reporting purposes.

 

Discontinued operations, net, increased approximately $48.5 million between the periods under comparison.  This increase is primarily attributable to a one-time $60.0 million impairment on the furniture rental business in 2001, which was subsequently sold in January 2002.  See Note 16 in the Notes to Consolidated Financial Statements for further discussion.

 

Liquidity and Capital Resources

 

For the Year Ended December 31, 2003

 

As of January 1, 2003, the Company had approximately $29.9 million of cash and cash equivalents and $499.2 million available under its line of credit (net of $60.8 million which was restricted/dedicated to support letters of credit and not available for borrowing).  After taking into effect the various transactions discussed in the following paragraphs and the net cash provided by operating activities, the Company’s cash and cash equivalents balance at December 31, 2003 was approximately $49.6 million and the amount available on the Company’s line of credit was $633.3 million (net of $56.7 million which was restricted/dedicated to support letters of credit and not available for borrowing).

 

During the year ended December 31, 2003, the Company generated proceeds from various transactions, which included the following:

 

•                  Disposed of ninety-six properties (including two Unconsolidated Properties) and received net proceeds of approximately $1.1 billion;

•                  Issued $400.0 million of 5.20% fixed rate unsecured debt receiving net proceeds of $397.5 million;

•                  Issued $150.0 million of 6.48% Series N Cumulative Redeemable Preferred Shares and received net proceeds of $145.3 million;

•                  Obtained $111.2 million in new mortgage financing; and

•                  Issued approximately 3.5 million Common Shares and received net proceeds of $74.7 million.

 

36

 

During the year ended December 31, 2003, the above proceeds were primarily utilized to:

 

•                  Acquire seventeen properties, and two additional units at an existing property, utilizing cash of $595.1 million;

•                  Pay Common Share and OP Unit dividends of $510.7 million ($1.73 per share);

•                  Pay preferred share and preference interest/unit dividends of $99.9 million;

•                  Repay $432.9 million of mortgage loans;

•                  Repay $130.0 million on its line of credit;

•                  Repay $100.0 million of floating rate public notes at maturity;

•                  Repay $50.0 million and $40.0 million of 6.65% and 6.875%, respectively, fixed rate public notes at maturity;

•                  Repay $4.5 million of other unsecured notes;

•                  Redeem $295.3 million of 7.25% Series G Convertible Cumulative Preferred Shares which included a cash redemption premium of $8.3 million; and

•                  Redeem $100.0 million of 7.625% Series L Cumulative Redeemable Preferred Shares at liquidation value;

 

Depending on its analysis of market prices, economic conditions, and other opportunities for the investment of available capital, the Company may repurchase up to an additional $85.0 million of its Common Shares pursuant to its existing share buyback program authorized by the Board of Trustees.  The Company did not repurchase any of its Common Shares during the year ended December 31, 2003.

 

The Company’s total debt summary and debt maturity schedule as of December 31, 2003, are as follows:

 

Debt Summary

 

		$ Millions *			Weighted Average Rate *
Secured		$	2,694		5.80	%
Unsecured		2,666			6.38	%
Total		$	5,360		6.08	%
Fixed Rate		$	4,610		6.65	%
Floating Rate		750			2.24	%
Total		$	5,360		6.08	%
Above Totals Include:
Tax Exempt
Fixed		$	343		4.38	%
Floating		587			1.74	%
Total		$	930		3.01	%
Unsecured Revolving Credit Facility		$	10		1.85	%

 

* Net of the effect of any derivative instruments.

 

37

 

Debt Maturity Schedule

 

 

(1) Includes $300 million of unsecured debt with a final maturity of 2015 that is putable/callable in 2005.

 

(2) Includes $150 million of unsecured debt with a final maturity of 2026 that is putable in 2006.

 

In June 2003, the Operating Partnership filed and the SEC declared effective a Form S-3 registration statement to register $2.0 billion of debt securities.  In addition, the Operating Partnership carried over $280.0 million related to a prior registration statement.  As of February 4, 2004, $2.28 billion in debt securities remained available for issuance under this registration statement.

 

The Company’s “Consolidated Debt-to-Total Market Capitalization Ratio” as of December 31, 2003 is presented in the following table.  The Company calculates the equity component of its market capitalization as the sum of (i) the total outstanding Common Shares and assumed conversion of all OP Units at the equivalent market value of the closing price of the Company’s Common Shares on the New York Stock Exchange; (ii) the “Common Share Equivalent” of all convertible preferred shares and preference interests/units; and (iii) the liquidation value of all perpetual preferred shares and preference interests outstanding.

 

Capitalization as of December 31, 2003

 

 

38

 

Convertible Preferred Shares, Preference Interests

and Junior Preference Units

as of December 31, 2003

 

 

The Company’s policy is to maintain a ratio of consolidated debt-to-total market capitalization of less than 50%.

 

From January 1, 2004 through February 4, 2004, the Company:

 

•                  Acquired four properties (including two additional units at an existing property) consisting of 1,130 units for approximately $151.3 million;

•                  Assumed $36.9 million of mortgage debt on one property in connection with its acquisition;

•                  Disposed of twelve properties (including one Unconsolidated Property) and various individual condominium units consisting of 2,972 units for approximately $140.9 million;

•                  Obtained $16.5 million in new mortgage financing; and

•                  Repaid $50.0 million of mortgage loans.

 

Capitalization of Fixed Assets and Improvements to Real Estate

 

Our policy with respect to capital expenditures is generally to capitalize expenditures that improve the value of the property or extend the useful life of the component asset of the property.  We track improvements to real estate in two major categories and several subcategories:

 

•             Replacements (inside the unit).  These include:

•                  carpets and hardwood floors;

•                  appliances;

•                  mechanical equipment such as individual furnace/air units, hot water heaters, etc;

•                  furniture and fixtures such as kitchen/bath cabinets, light fixtures, ceiling fans, sinks, tubs, toilets, mirrors, countertops, etc;

•                  flooring such as vinyl, linoleum or tile; and

•                  blinds/shades.

 

All replacements are depreciated over a five-year estimated useful life.  We expense as incurred all maintenance and turnover costs such as cleaning, interior painting of individual units and the repair of any replacement item noted above.

 

39

 

•             Building improvements (outside the unit).  These include:

•                                          roof replacement and major repairs;

•                                          paving or major resurfacing of parking lots, curbs and sidewalks;

•                                          amenities and common areas such as pools, exterior sports and playground equipment, lobbies, clubhouses, laundry rooms, alarm and security systems and offices;

•                                          major building mechanical equipment systems;

•                                          interior and exterior structural repair and exterior painting and siding;

•                                          major landscaping and grounds improvement; and

•                                          vehicles and office and maintenance equipment.

 

All building improvements are depreciated over a five to ten-year estimated useful life.  We expense as incurred all recurring expenditures that do not improve the value of the asset or extend its useful life.

 

For the year ended December 31, 2003, our actual improvements to real estate totaled approximately $181.9 million.  This includes the following detail (amounts in thousands except for unit and per unit amounts):

 

Capitalized Improvements to Real Estate

For the Year Ended December 31, 2003

 

		Total Units (1)		Replacements			Avg. Per Unit			Building Improvements			Avg. Per Unit			Total			Avg. Per Unit
Established Properties (2)		162,477		$	57,931		$	356		$	77,607		$	478		$	135,538		$	834
New Acquisition Properties (3)		14,457		2,653			252			5,250			498			7,903			750
Other (4)		7,994		13,417						25,090						38,507
Total		184,928		$	74,001					$	107,947					$	181,948

 

(1)          Total units exclude 22,578 unconsolidated units.

(2)          Wholly Owned Properties acquired prior to January 1, 2001.

(3)          Wholly Owned Properties acquired during 2001, 2002 and 2003.  Per unit amounts are based on a weighted average of 10,533 units.

(4)          Includes properties either Partially Owned or sold during the period, commercial space, condominium conversions and $6.5 million included in building improvements spent on seven specific assets related to major renovations and repositioning of these assets.

 

For the year ended December 31, 2002, our actual improvements to real estate totaled approximately $156.8 million.  This includes the following detail (amounts in thousands except for unit and per unit amounts):

 

40

 

Capitalized Improvements to Real Estate

For the Year Ended December 31, 2002

 

		Total Units (1)		Replacements			Avg. Per Unit			Building Improvements			Avg. Per Unit			Total			Avg. Per Unit
Established Properties (2)		171,913		$	49,903		$	290		$	65,985		$	384		$	115,888		$	674
New Acquisition Properties (3)		22,146		5,542			285			8,691			446			14,233			731
Other (4)		7,758		5,787						20,868						26,655
Total		201,817		$	61,232					$	95,544					$	156,776

 

(1)                Total units exclude 21,774 unconsolidated units.

(2)                Wholly Owned Properties acquired prior to January 1, 2000.

(3)                Wholly Owned Properties acquired during 2000, 2001 and 2002.  Per unit amounts are based on a weighted average of 19,478 units.

(4)                Includes properties either Partially Owned or sold during the period, commercial space, condominium conversions and $9.1 million included in building improvements spent on six specific assets related to major renovations and repositioning of these assets.

 

The Company expects to fund approximately $160.0million for capital expenditures for replacements and building improvements for all consolidated properties in 2004.

 

During the year ended December 31, 2003, the Company’s total non-real estate capital additions, such as computer software, computer equipment, and furniture and fixtures and leasehold improvements to the Company’s property management offices and its corporate offices, was approximately $2.9 million.  The Company expects to fund approximately $6.5 million in total additions to non-real estate property in 2004.

 

Improvements to real estate and additions to non-real estate property were funded from net cash provided by operating activities.

 

Derivative Instruments

 

In the normal course of business, the Company is exposed to the effect of interest rate changes.  The Company limits these risks by following established risk management policies and procedures including the use of derivatives to hedge interest rate risk on debt instruments.

 

The Company has a policy of only entering into contracts with major financial institutions based upon their credit ratings and other factors.  When viewed in conjunction with the underlying and offsetting exposure that the derivatives are designed to hedge, the Company has not sustained a material loss from those instruments nor does it anticipate any material adverse effect on its net income or financial position in the future from the use of derivatives.

 

See Note 14 in the Notes to Consolidated Financial Statements for additional discussion of derivative instruments at December 31, 2003.

 

41

 

Other

 

Minority Interests as of December 31, 2003 decreased by $10.4 million when compared to December 31, 2002.  The primary factors that impacted this account in the Company’s consolidated statements of operations and balance sheets during the year ended December 31, 2003 were:

 

•                  Distributions declared to Minority Interests, which amounted to $38.2 million (excluding Junior Preference Unit and Preference Interest distributions);

•                  The allocation of income from operations to holders of OP Units in the amount of $34.7 million;

•                  The issuance of 313,720 OP Units to various limited partners at an average price of $26.11 per unit;

•                  The issuance of Common Shares; and

•                  The conversion of OP Units into Common Shares.

 

Total distributions paid in January 2004 amounted to $141.9 million (excluding distributions on Partially Owned Properties), which included certain distributions declared during the fourth quarter ended December 31, 2003.

 

The Company expects to meet its short-term liquidity requirements, including capital expenditures related to maintaining its existing properties and certain scheduled unsecured note and mortgage note repayments, generally through its working capital, net cash provided by operating activities and borrowings under its line of credit.  The Company considers its cash provided by operating activities to be adequate to meet operating requirements and payments of distributions.  The Company also expects to meet its long-term liquidity requirements, such as scheduled unsecured note and mortgage debt maturities, property acquisitions, financing of construction and development activities and capital improvements through the issuance of unsecured notes and equity securities, including additional OP Units, and proceeds received from the disposition of certain properties.  In addition, the Company has significant unencumbered properties available to secure additional mortgage borrowings in the event that the public capital markets are unavailable or the cost of alternative sources of capital is too high.  The fair value of and cash flow from these unencumbered properties are in excess of the requirements the Company must maintain in order to comply with covenants under its unsecured notes and line of credit.

 

The Company has a revolving credit facility with potential borrowings of up to $700.0 million.    This facility matures in May 2005 and may, among other potential uses, be used to fund property acquisitions, costs for certain properties under development and short term liquidity requirements.  As of March 1, 2004, $255.0 million was outstanding under this facility (and $56.7 was restricted and dedicated to support letters of credit).

 

Off-Balance Sheet Arrangements and Contractual Obligations

 

The Company has co-invested in various properties that are unconsolidated and accounted for under the equity method of accounting.  Management does not believe these investments have a materially different impact upon the Company’s liquidity, capital resources, credit or market risk than its property management and ownership activities generally, except to the extent the development ventures mitigate risk by deploying the skill and expertise of locally based real estate developers.  The nature and business purpose of these ventures are as follows:

 

•                                          Institutional Ventures – During 2000 and 2001, the Company entered into ventures with an unaffiliated partner.   At the respective closing dates, the Company sold and/or contributed 45 properties containing 10,846 units to these ventures and retained a 25% ownership interest in the ventures.  The Company’s joint venture partner contributed cash equal to 75% of the agreed-upon equity value of the properties comprising the ventures, which was then distributed to the Company.  The Company’s strategy with respect to these ventures was to reduce its concentration of properties in a variety of markets.

•                                          Development Ventures – Since 1998, the Company has generally engaged in development activities through various joint ventures with third party developers.   The Company uses the local expertise of these developers and lowers the overall risks

 

42

 

associated with development by grouping various development properties into aggregate pools.  The Company generally contributes between 25% and 35% of the development cost of these projects with the remaining cost financed through third-party construction mortgages.  Voting rights are shared equally between the Company and its respective development partners.

 

As of December 31, 2003, the Company has 13 projects in various stages of development with estimated completion dates ranging through June 30, 2005.  The three development agreements currently in place have the following key terms:

 

•                                    The first development partner has the right, at any time following completion of a project, to stipulate a value for such project and offer to sell its interest in the project to the Company based on such value.  If the Company chooses not to purchase the interest, it must agree to a sale of the project to an unrelated third party at such value.  The Company’s partner must exercise this right as to all projects within five years after the receipt of the final certificate of occupancy on the last developed property.   In connection with this development agreement, the Company has an obligation to provide up to $40.0 million in credit enhancements to guarantee a portion of the third party construction financing.  As of February 4, 2004, the Company had set-aside $20.0 million towards this credit enhancement.  The Company would be required to perform under this agreement only if there was a material default under a third party construction mortgage agreement.  This agreement expires no later than December 31, 2018.  Notwithstanding the termination of the agreement, the Company shall have recourse against its development partner for any losses incurred.

 

•                                    The second development partner has the right, at any time following completion of a project, to require the Company to purchase the partners’ interest in that project at a mutually agreeable price.  If the Company and the partner are unable to agree on a price, both parties will obtain appraisals.  If the appraised values vary by more than 10%, both the Company and its partner will agree on a third appraiser to determine which original appraisal is closest to its determination of value.  The Company may elect at that time not to purchase the property and instead, authorize its partner to sell the project at or above the agreed-upon value to an unrelated third party.  Five years following the receipt of the final certificate of occupancy on the last developed property, the Company must purchase, at the agreed-upon price, any projects remaining unsold.

 

•                                    The third development partner has the exclusive right for six months following stabilization (generally defined as having achieved 90% occupancy for three consecutive months following the substantial completion of a project) to market a project for sale.  Thereafter, either the Company or its development partner may market a project for sale.  If the Company’s development partner proposes the sale, the Company may elect to purchase the project at the price proposed by its partner or defer the sale until two independent appraisers appraise the project.  If the two appraised values vary by more than 5%, a third appraiser will be chosen to determine the fair market value of the property.  Once a value has been determined, the Company may elect to purchase the property or authorize its development partner to sell the project at the agreed-upon value.

 

See Note 9 in the Notes to Consolidated Financial Statements for additional discussion regarding the Company’s investments in unconsolidated entities.

 

In connection with one of its mergers, the Company provided a guaranty of a credit enhancement agreement with respect to certain tax-exempt bonds issued to finance certain public improvements at a multifamily

 

43

 

development project.  The Company has the obligation to provide this guaranty for a period of eight years from the consummation of the merger or through May 2005.  The Company would be required to perform under this guaranty only if there was a draw on the letter of credit issued by the credit enhancement party.  The counterparty has also indemnified the Company for any losses suffered.  As of February 4, 2004, this guaranty was still in effect at a commitment amount of $12.7 million and no current outstanding liability.

 

The following table summarizes the Company’s contractual obligations for the next five years and thereafter as of December 31, 2003:

 

		Payments Due by Year (in thousands)
Contractual Obligations		2004			2005			2006			2007			2008			Thereafter			Total
Debt (a)		$	514,591		$	605,438		$	489,961		$	332,583		$	494,727		$	2,923,189		$	5,360,489
Operating Leases:
Minimum Rent Payments (b)		4,835			3,915			2,852			2,376			2,243			8,365			24,586
Other Long-Term Liabilities:
Deferred Compensation (c)		831			1,376			1,411			2,215			2,270			20,972			29,075
Other (d)		1,000			—			—			—			—			—			1,000
Total		$	521,257		$	610,729		$	494,224		$	337,174		$	499,240		$	2,952,526		$	5,415,150

 

(a)          Amounts include aggregate principal payments only.  The Company paid $352,391, $365,782 and $380,745 for interest on debt, inclusive of derivative instruments, for the years ended December 31, 2003, 2002 and 2001, respectively.

(b)         Minimum basic rent due for various office space the Company leases and fixed base rent due on a ground lease for one property.

(c)          Estimated payments to the Company’s Chairman, former CEO and two other executive officers based on planned retirement dates.

(d)         Promissory note due on one property.

 

Critical Accounting Policies and Estimates

 

The Company’s significant accounting policies are described in Note 2 in the Notes to Consolidated Financial Statements.  These policies were followed in preparing the consolidated financial statements at and for the year ended December 31, 2003.

 

The Company has identified six significant accounting policies as critical accounting policies.  These critical accounting policies are those that have the most impact on the reporting of our financial condition and those requiring significant judgments and estimates.  With respect to these critical accounting policies, management believes that the application of judgments and assessments is consistently applied and produces financial information that fairly presents the results of operations for all periods presented.  The six critical accounting policies are:

 

Impairment of Long-Lived Assets, Including Goodwill

 

                                                The Company periodically evaluates its long-lived assets, including its investments in real estate and goodwill, for indicators of permanent impairment.  The judgments regarding the existence of impairment indicators are based on factors such as operational performance, market conditions, expected

 

44

 

holding period of each asset and legal and environmental concerns.  Future events could occur which would cause the Company to conclude that impairment indicators exist and an impairment loss is warranted.

 

Depreciation of Investment in Real Estate

 

The Company depreciates the building component of its investment in real estate over a 30-year estimated useful life, building improvements over a 5-year to 10-year estimated useful life and both the furniture, fixtures and equipment and replacements components over a 5-year estimated useful life, all of which are judgmental determinations.

 

Cost Capitalization

 

See the Capitalization of Fixed Assets and Improvements to Real Estate section for discussion of the policy with respect to capitalization vs. expensing of fixed asset/repair and maintenance costs.  In addition, the Company capitalizes the payroll and associated costs of employees directly responsible for and who spend all of their time on the supervision of major capital projects.  These costs are reflected on the balance sheet as an increase to depreciable property.

 

The Company follows the guidance in SFAS No. 67, Accounting for Costs and Initial Rental Operations of Real Estate Projects, for all development projects and uses its professional judgment in determining whether such costs meet the criteria for capitalization or must be expensed as incurred.  The Company capitalizes interest, real estate taxes and insurance and payroll and associated costs for those individuals directly responsible for and who spend all of their time on development activities.  The Company expenses as incurred all payroll costs of employees working directly at our properties, except for costs that are incurred during the initial lease-up phase on a development project.  An allocated portion of payroll costs is capitalized based upon the occupancy of the project until stabilized occupancy is achieved.  The incremental payroll and associated costs are capitalized to the projects under development based upon the effort directly identifiable with such projects.  These costs are reflected on the balance sheet as either construction in progress or a separate component of investments in unconsolidated entities.  The Company ceases the capitalization of such costs as the property becomes substantially complete and ready for its intended use.

 

Fair Value of Financial Instruments, Including Derivative Instruments

 

The valuation of financial instruments under SFAS No. 107 and SFAS No. 133 and its amendments (SFAS Nos. 137/138/149) requires the Company to make estimates and judgments that affect the fair value of the instruments.  The Company, where possible, bases the fair values of its financial instruments, including its derivative instruments, on listed market prices and third party quotes. Where these are not available, the Company bases its estimates on other factors relevant to the financial instruments.

 

Revenue Recognition

 

Rental income attributable to leases is recorded when due from residents and is recognized monthly as it is earned, which is not materially different than on a straight-line basis.  Leases entered into between a resident and a property for the rental of an apartment unit are generally year-to-year, renewable upon consent of both parties on an annual or monthly basis.  Interest income is recorded on an accrual basis.

 

Stock-Based Compensation

 

Prior to 2003, the Company had chosen to account for its stock-based compensation in accordance with APB No. 25, Accounting for Stock Issued to Employees, which resulted in no

 

45

 

compensation expense for options issued with an exercise price equal to or exceeding the market value of the Company’s Common Shares on the date of grant (intrinsic method).  The Company has elected to account for its stock-based compensation in accordance with SFAS No. 123 and its amendment (SFAS No. 148), Accounting for Stock Based Compensation, effective in the first quarter of 2003, which resulted in compensation expense being recorded based on the fair value of the stock compensation granted.

 

SFAS No. 148 provides three transition methods for entities that adopt the fair value recognition provisions of SFAS No. 123.  The Company has chosen to use the “Prospective Method”.  This method requires that companies apply the recognition provisions of SFAS No. 123 to only employee awards granted or modified after the beginning of the fiscal year in which the recognition provisions are first applied, or January 1, 2003.  Compensation expense under all of the Company’s plans is generally recognized over periods ranging from three months to five years.  Therefore, the cost related to stock-based employee compensation included in the determination of net income for the year ended December 31, 2003 is less than that which would have been recognized if the fair value based method had been applied to all awards since the original effective date of SFAS No. 123.  See Note 2 in the Notes to Consolidated Financial Statements for further discussion and comparative information regarding application of the fair value method to all outstanding employee awards.

 

Funds From Operations

 

For the year ended December 31, 2003, Funds From Operations (“FFO”) available to Common Shares and OP Units decreased $78.9 million, or 11.0%, as compared to the year ended December 31, 2002. For the year ended December 31, 2002, FFO available to Common Shares and OP Units increased $13.0 million, or 1.8%, as compared to the year ended December 31, 2001.

 

The following is a reconciliation of net income to FFO available to Common Shares and OP Units for the years ended December 31, 2003, 2002 and 2001:

 

Funds From Operations

(Amounts in thousands)

 

		Year Ended December 31,
		2003			2002			2001
Net income		$	543,847		$	421,313		$	474,023
Net income allocation to Minority Interests – Operating Partnership		34,658			26,862			32,391
Adjustments:
Depreciation		444,339			419,039			396,737
Depreciation – Non-real estate additions		(7,019		)	(9,213		)	(6,555		)
Depreciation – Partially Owned Properties		(8,390		)	(7,706		)	(4,353		)
Depreciation – Unconsolidated Properties		28,301			19,872			13,022
Net (gain) on sales of unconsolidated entities		(4,942		)	(5,054		)	(387		)
Cumulative effect of change in accounting principle		—			—			1,270
Discontinued Operations:
Depreciation		27,230			53,917			60,495
Net gain on sales of depreciable property		(300,426		)	(102,614		)	(148,906		)
FFO (1)(2)		757,598			816,416			817,737
Preferred distributions		(96,971		)	(97,151		)	(106,119		)
Premium on redemption of preferred shares		(20,237		)	—			(5,324		)
FFO available to Common Shares and OP Units		$	640,390		$	719,265		$	706,294

 

46

 

(1)                               The National Association of Real Estate Investment Trusts (“NAREIT”) defines funds from operations (“FFO”) (April 2002 White Paper) as net income (computed in accordance with accounting principles generally accepted in the United States), excluding gains (or losses) from sales of property, plus depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures.  Adjustments for unconsolidated partnerships and joint ventures will be calculated to reflect funds from operations on the same basis.  The April 2002 White Paper states that gain or loss on sales of property is excluded from FFO for previously depreciated operating properties only.  Once the Company commences the conversion of units to condominiums, it simultaneously discontinues depreciation of such property.  Accordingly, the Company included in FFO its incremental gains or losses from the sale of condominium units to third parties, which represented net gains of $10,280, $1,682 and $0 for the years ended December 31, 2003, 2002 and 2001, respectively.  Effective January 1, 2003, the Company no longer adds back impairment losses when computing FFO in accordance with NAREIT’s definition.  As a result, FFO for the years ended December 31, 2002, 2001 and 2000 have been reduced by $18,284, $71,766 and $1,000, respectively, to conform to the current year presentation.  For the year ended December 31, 2001, FFO has been reduced by $5,324 to reflect the SEC’s clarification of EITF Topic D-42 regarding premiums on redemption of preferred shares.

 

(2)                               The Company believes that FFO is helpful to investors as a supplemental measure of the operating performance of a real estate company because it provides investors an understanding of the ability of the Company to incur and service debt and to make capital expenditures.  FFO in and of itself does not represent net income or net cash flows from operating activities in accordance with GAAP.  Therefore, FFO should not be exclusively considered as an alternative to net income or to net cash flows from operating activities as determined by GAAP or as a measure of liquidity.  The Company’s calculation of FFO may differ from other real estate companies due to, among other items,  variations in cost capitalization policies for capital expenditures and, accordingly, may not be comparable to such other real estate companies.

 

Item 7A.  Quantitative and Qualitative Disclosure about Market Risk

 

Market risks relating to the Company’s operations result primarily from changes in short-term LIBOR interest rates.  The Company does not have any direct foreign exchange or other significant market risk.

 

The Company’s exposure to market risk for changes in interest rates relates primarily to the unsecured line of credit.  The Company typically incurs fixed rate debt obligations to finance acquisitions and capital expenditures, while it typically incurs floating rate debt obligations to finance working capital needs and as a temporary measure in advance of securing long-term fixed rate financing.  The Company continuously evaluates its level of floating rate debt with respect to total debt and other factors, including its assessment of the current and future economic environment.

 

The Company also utilizes certain derivative financial instruments to limit market risk.  Interest rate protection agreements are used to convert floating rate debt to a fixed rate basis or vice versa.  Derivatives are used for hedging purposes rather than speculation.  The Company does not enter into financial instruments for trading purposes.   See also Note 14 to the Notes to Consolidated Financial Statements for additional discussion of derivative instruments.

 

The fair values of the Company’s financial instruments (including such items in the financial statement captions as cash and cash equivalents, other assets, lines of credit, accounts payable and accrued expenses, rents received in advance and other liabilities) approximate their carrying or contract values based on their nature terms and interest rates that approximate current market rates.  The fair value of the

 

47

 

Company’s mortgage notes payable and unsecured notes approximates their carrying value at December 31, 2003.

 

The Company had total outstanding floating rate debt of approximately $750.0 million, or 14.0% of total debt at December 31, 2003, net of the effects of any derivative instruments.  If market rates of interest on all of the floating rate debt permanently increased by 22 basis points (a 10% increase from the Company’s existing weighted average interest rates), the increase in interest expense on the floating rate debt would decrease future earnings and cash flows by approximately $1.7 million.  If market rates of interest on all of the floating rate debt permanently decreased by 22 basis points (a 10% decrease from the Company’s existing weighted average interest rates), the decrease in interest expense on the floating rate debt would increase future earnings and cash flows by approximately $1.7 million.

 

At December 31, 2003, the Company had total outstanding fixed rate debt of approximately $4.6 billion, net of the effects of any derivative instruments.  If market rates of interest permanently increased by 67 basis points (a 10% increase from the Company’s existing weighted average interest rates), the estimated fair value of the Company’s fixed rate debt would be approximately $4.2 billion.  If market rates of interest permanently decreased by 67 basis points (a 10% decrease from the Company’s existing weighted average interest rates), the estimated fair value of the Company’s fixed rate debt would be approximately $5.1 billion.

 

At December 31, 2003, the Company’s consolidated derivative instruments had a net asset fair value of approximately $3.9 million.  If market rates of interest permanently increased by 25 basis points (a 10% increase from the Company’s existing weighted average interest rates), the net asset fair value of the Company’s consolidated derivative instruments would be approximately $8.0 million.  If market rates of interest permanently decreased by 25 basis points (a 10% decrease from the Company’s existing weighted average interest rates), the net liability fair value of the Company’s consolidated derivative instruments would be approximately $0.1 million.

 

At December 31, 2003, the Company’s unconsolidated derivative instruments had a net liability fair value of approximately $5.2 million.  If market rates of interest permanently increased by 11 basis points (a 10% increase from the Company’s existing weighted average interest rates), the net liability fair value of the Company’s unconsolidated derivative instruments would be approximately $5.1 million.  If market rates of interest permanently decreased by 11 basis points (a 10% decrease from the Company’s existing weighted average interest rates), the net liability fair value of the Company’s unconsolidated derivative instruments would be approximately $5.3 million.

 

These amounts were determined by considering the impact of hypothetical interest rates on the Company’s financial instruments.  The foregoing assumptions apply to the entire amount of the Company’s debt and derivative instruments and do not differentiate among maturities.  These analyses do not consider the effects of the changes in overall economic activity that could exist in such an environment.  Further, in the event of changes of such magnitude, management would likely take actions to further mitigate its exposure to the changes.  However, due to the uncertainty of the specific actions that would be taken and their possible effects, this analysis assumes no changes in the Company’s financial structure or results.

 

The Company cannot predict the effect of adverse changes in interest rates on its debt and derivative instruments and, therefore, its exposure to market risk, nor can there be any assurance that long term debt will be available at advantageous pricing.  Consequently, future results may differ materially from the estimated adverse changes discussed above.

 

Item 8.  Financial Statements and Supplementary Data

 

See Index to Consolidated Financial Statements on page F-1 of this Form 10-K.

 

Item 9.  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

None.

 

Item 9A.   Disclosure Controls and Procedures

 

Effective as of December 31, 2003, the Company carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures pursuant to Exchange Act Rules 13a-15 and 15d-15.  Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the disclosure controls and procedures are effective in timely alerting them to material information.  During the fiscal year ended December 31, 2003, there were no changes to the internal controls over financial reporting of the Company identified in connection with the Company’s evaluation or otherwise that has materially affected, or is reasonably likely to materially affect, the Company’s internal controls over financial reporting.

 

48

 

PART III

 

Items 10, 11, 12, 13 and 14.

 

Trustees and Executive Officers of the Registrant, Executive Compensation, Security Ownership of Certain Beneficial Owners and Management, Certain Relationships and Related Transactions and Principal Accountant Fees and Services.

 

The information required by Item 10, Item 11, Item 12, Item 13 and Item 14 are incorporated by reference to, and will be contained in, the Company’s definitive proxy statement, which the Company anticipates will be filed no later than April 29, 2004, and thus these items have been omitted in accordance with General Instruction G(3) to Form 10-K.

 

49

 

PART IV

 

Item 15.  Exhibits, Financial Statements, Schedules and Reports on Form 8-K

 

(a)

(1 & 2) See Index to Financial Statements and Schedules on page F-1 of this Form 10-K.

(3) Exhibits:

 

2.1^		Agreement and Plan of Merger and First Amendment Thereto by and between Equity Residential and Merry Land & Investment Company, Inc. dated as of July 8, 1998 and September 4, 1998, respectively.
2.2^^		Articles of Merger by and between Equity Residential and Merry Land & Investment Company, Inc.
2.3^^^		Agreement and Plan of Merger between Equity Residential and Lexford Residential Trust dated as of June 30, 1999.
2.4^^^^		Articles of Merger by and between Equity Residential and Lexford Residential Trust.
2.5^^^^^		Agreement and Plan of Merger among Grove Property Trust, Grove Operating, L.P. and ERP Operating Limited Partnership dated as of July 17, 2000.
3.1+		Second Amended and Restated Declaration of Trust of Equity Residential dated May 30, 1997 (“Declaration of Trust”).
3.2++		Articles Supplementary to Declaration of Trust dated September 22, 1997.
3.3+++		Articles Supplementary to Declaration of Trust dated September 30, 1998.
3.4*****		Articles Supplementary to Declaration of Trust dated September 27, 1999.
3.5•		Certificate of Correction to Articles Supplementary to Declaration of Trust dated July 6, 2000.
3.6*****		Articles Supplementary to Declaration of Trust dated March 3, 2000.
3.7*****		Articles Supplementary to Declaration of Trust dated March 23, 2000.
3.8*****		Articles Supplementary to Declaration of Trust dated May 1, 2000.
3.9*****		Articles Supplementary to Declaration of Trust dated August 11, 2000.
3.10*****		Articles Supplementary to Declaration of Trust dated December 8, 2000.
3.11•		Articles Supplementary to Declaration of Trust dated March 23, 2001.
3.12•		Articles Supplementary to Declaration of Trust dated June 22, 2001.
3.13•		Articles Supplementary to Declaration of Trust dated December 14, 2001.
3.14•		Articles of Amendment to Declaration of Trust dated December 12, 2001.
3.15••		Articles of Amendment to the Second Amended and Restated Declaration of Trust dated May 15, 2002.
3.16•••••		Articles Supplementary to Declaration of Trust dated June 18, 2003.
3.17++++		Fourth Amended and Restated Bylaws of Equity Residential.
4.1*		Indenture, dated October 1, 1994, between the Operating Partnership, as obligor and The First National Bank of Chicago, as trustee.
10.1**		Fifth Amended and Restated Agreement of Limited Partnership of ERP Operating Limited Partnership.
10.2		Master Amendment to Other Securities Term Sheets and Joinders to Operating Partnership Agreement of ERP Operating Limited Partnership dated December 19, 2003.
10.3		Assignment and Assumption Agreement between the Company and ERP Operating Limited Partnership dated December 19, 2003.
10.4***		Noncompetition Agreement (Zell).
10.5***		Noncompetition Agreement (Crocker).
10.6***		Noncompetition Agreement (Spector).
10.7***		Form of Noncompetition Agreement (other officers).
10.8***		Amended and Restated Master Reimbursement Agreement, dated as of November 1, 1996 by and between Federal National Mortgage Association and EQR-Bond Partnership.
10.9••		Revolving Credit Agreement dated as of May 29, 2002 among the Operating Partnership, Bank of America, National Association, as administrative agent, JP Morgan Chase Bank, as syndication agent, and the banks named therein.

 

50

 

10.10••		Guaranty of Payment, dated as of May 29, 2002, between the Company and Bank of America, N.A., as administrative agent.
10.11****		Amended and Restated Limited Partnership Agreement of Lexford Properties, L.P.
10.12•		Amended and Restated Equity Residential Advantage Retirement Savings Plan, effective January 1, 2001.
10.13		First Amendment to the Equity Residential Advantage Retirement Savings Plan, effective December 2002.
10.14		Second Amendment to the Equity Residential Advantage Retirement Savings Plan, effective December 2002.
10.15		Third Amendment to the Equity Residential Advantage Retirement Savings Plan, effective May 2003.
10.16•••		Equity Residential 2002 Share Incentive Plan.
10.17•		Form of Change in Control Agreement between the Company and other executive officers.
10.18		Form of Indemnification Agreement between the Company and each trustee and executive officer.
10.19#		Amended and Restated Executive Compensation Agreement between the Company and Samuel Zell dated March 5, 2003, but effective as of January 1, 2003.
10.20•		Amended and Restated Deferred Compensation Agreement between the Company and Douglas Crocker II dated as of January 21, 2002.
10.21•		Amended and Restated Deferred Compensation Agreement between the Company and Gerald A. Spector dated January 1, 2002.
10.22•		Retirement Benefits Agreement between Samuel Zell and the Company dated October 18, 2001.
10.23••••		Compensation Agreement between the Company and Bruce W. Duncan dated March 14, 2002.
10.24#		First Amendment to Compensation Agreement between the Company and Bruce W. Duncan dated February 17, 2003.
10.25#		Employment Agreement between the Company and Bruce W. Duncan dated as of January 20, 2003.
10.26#		Deferred Compensation Agreement between the Company and Bruce W. Duncan dated as of January 20, 2003.
10.27••••		Compensation Agreement between the Company and Douglas Crocker II dated April 10, 2002, but effective as of January 16, 2002.
12		Computation of Ratio of Earnings to Combined Fixed Charges.
21		List of Subsidiaries of Equity Residential.
23.1		Consent of Ernst & Young LLP.
24.1		Power of Attorney for John W. Alexander dated March 3, 2004.
24.2		Power of Attorney for Stephen O. Evans dated March 5, 2004.
24.3		Power of Attorney for Charles L. Atwood dated March 8, 2004.
24.4		Power of Attorney for Desiree G. Rogers dated March 9, 2004.
24.5		Power of Attorney for B. Joseph White dated March 3, 2004.
24.6		Power of Attorney for Sheli Z. Rosenberg dated March 5, 2004.
24.7		Power of Attorney for James D. Harper, Jr. dated March 4, 2004.
24.8		Power of Attorney for Boone A. Knox dated March 3, 2004.
24.9		Power of Attorney for Michael N. Thompson dated March 5, 2004.
24.10		Power of Attorney for Samuel Zell dated March 2, 2004.
24.11		Power of Attorney for Gerald A. Spector dated March 2, 2004.
31.1		Certification of Bruce W. Duncan, Chief Executive Officer.
31.2		Certification of David J. Neithercut, Chief Financial Officer.
32.1		Certification Pursuant to 18 U.S.C. Section 1350, as adopted, pursuant to Section 906 of the Sarbanes–Oxley Act of 2002, of Bruce W. Duncan, Chief Executive Officer of the Company.

 

51

 

32.2

Certification Pursuant to 18 U.S.C. Section 1350, as adopted, pursuant to Section 906 of the Sarbanes–Oxley Act of 2002, of David J. Neithercut, Chief Financial Officer of the Company.

 

 

^		Included as Appendix A in the Company’s Form S-4 filed on September 14, 1998.
^^		Included as Appendix B in the Company’s Form S-4 filed on September 14, 1998.
^^^		Included as Appendix A in the Company’s Form S-4 filed on July 23, 1999.
^^^^		Included as an exhibit to the Company’s Form 8-K dated October 1, 1999, filed on October 5, 1999.
^^^^^		Included as Appendix A to the Company’s Form S-4, Registration No. 333-44576, filed on July 23, 2000.
+		Included as an exhibit to the Company’s Form 8-K dated May 30, 1997, filed on June 5, 1997.
++		Included as an exhibit to the Company’s Form 8-A filed September 19, 1997.
+++		Included as an exhibit to the Company’s Form 8-A filed October 16, 1998.
++++		Included as an exhibit to the Company’s Form 10-Q for the quarterly period ended June 30, 2001.
*		Included as an exhibit to the Operating Partnership’s Form 10/A, dated December 12, 1994, File No. 0-24920, and incorporated herein by reference.
**		Included as an exhibit to the Operating Partnership’s Form 8-K/A dated July 23, 1998, filed on August 18, 1998.
***		Included as an exhibit to the Company’s Form S-11 Registration Statement, File No. 33-63158, and incorporated herein by reference.
****		Included as an exhibit to the Company’s Form 10-K for the year ended December 31, 1999.
*****		Included as an exhibit to the Company’s Form 10-K for the year ended December 31, 2000.
•		Included as an exhibit to the Company’s Form 10-K for the year ended December 31, 2001.
••		Included as an exhibit to the Company’s Form 10-Q for the quarterly period ended June 30, 2002.
•••		Included as an exhibit to the Company’s Form S-8 filed on January 21, 2003.
••••		Included as an exhibit to the Company’s Form 10-Q for the quarterly period ended March 31, 2002.
•••••		Included as an exhibit to the Company’s Form 8-A dated and filed on June 19, 2003.
#		Included as an exhibit to the Company’s Form 10-K for the year ended December 31, 2002.
(b)	Reports on Form 8-K:  None.
(c)	Exhibits:  See Item 15(a)(3) above.
(d)	Financial Statement Schedules:  See Index to Financial Statements attached hereto on page F-1 of this Form 10-K.

 

52

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on behalf by the undersigned thereunto duly authorized.

 

				EQUITY RESIDENTIAL
Date:	March 12, 2004			By:		/s/		Bruce W. Duncan
								Bruce W. Duncan
						President, Chief Executive Officer,
								and Trustee
Date:	March 12, 2004			By:		/s/		David J. Neithercut
								David J. Neithercut
						Executive Vice President, Corporate Strategy and
							Chief Financial Officer
Date:	March 12, 2004			By:		/s/		Michael J. McHugh
								Michael J. McHugh
				Executive Vice President, Chief Accounting
					Officer, Treasurer and *Attorney-in-fact

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the following persons on behalf of the registrant and in the capacities and on the dates indicated have signed this report below.

 

Date:

March 12, 2004

By:

/s/

Samuel Zell*

Samuel Zell

Chairman of the Board of Trustees

Date:

March 12, 2004

By:

/s/

Gerald A. Spector*

Gerald A. Spector

Executive Vice President, Chief Operating Officer and Trustee

Date:

March 12, 2004

By:

/s/

Sheli Z. Rosenberg*

Sheli Z. Rosenberg

Trustee

Date:

March 12, 2004

By:

/s/

James D. Harper*

James D. Harper

Trustee

Date:

March 12, 2004

By:

/s/

John W. Alexander*

John W. Alexander

Trustee

 

53

 

Date:

March 12, 2004

By:

/s/

B. Joseph White*

B. Joseph White

Trustee

Date:

March 12, 2004

By:

/s/

Charles L. Atwood*

Charles L. Atwood

Trustee

Date:

March 12, 2004

By:

/s/

Desiree G. Rogers*

Desiree G. Rogers

Trustee

Date:

March 12, 2004

By:

/s/

Stephen O. Evans*

Stephen O. Evans

Trustee

Date:

March 12, 2004

By:

/s/

Boone A. Knox*

Boone A. Knox

Trustee

Date:

March 12, 2004

By:

/s/

Michael N. Thompson*

Michael N. Thompson

Trustee

* By:

/s/  Michael J. McHugh

Michael J. McHugh

as Attorney-in-fact

 

54