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EX-32 - CERTIFICATION OF CEO AND CFO - Brookdale Senior Living Inc.exhibit32.htm
EX-4.4 - AMENDMENT NUMBER TWO TO STOCKHOLDERS AGREEMENT - Brookdale Senior Living Inc.exhibit4_4.htm
EX-10.1 - FIRST AMENDMENT TO OMNIBUS STOCK INCENTIVE PLAN - Brookdale Senior Living Inc.exhibit10_1.htm
EX-31.1 - CEO CERTIFICATION - Brookdale Senior Living Inc.exhibit31_1.htm
EX-31.2 - CFO CERTIFICATION - Brookdale Senior Living Inc.exhibit31_2.htm



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10-Q

 
T
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2009

or

 
£
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from _____________ to _____________

Commission File Number: 001-32641

BROOKDALE SENIOR LIVING INC.
(Exact name of registrant as specified in its charter)

Delaware
20-3068069
(State or other jurisdiction
of incorporation or organization)
(I.R.S. Employer Identification No.)

111 Westwood Place, Suite 200, Brentwood, Tennessee
37027
 
(Address of principal executive offices)
(Zip Code)
 

(615) 221-2250
(Registrant's telephone number, including area code)

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  T  No  £

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes  £  No  £

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

 
Large accelerated filer   T
Accelerated filer                   £
 
 
Non-accelerated filer     £ (Do not check if a smaller reporting company)
 
Smaller reporting company  £

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

 
 

 

As of October 30, 2009, 118,620,006 shares of the registrant’s common stock, $0.01 par value, were outstanding (excluding unvested restricted shares).
 
 



 
2

 

TABLE OF CONTENTS
BROOKDALE SENIOR LIVING INC.

FORM 10-Q

FOR THE QUARTER ENDED SEPTEMBER 30, 2009

 
PAGE
 
     
 
     
   
 
     
   
 
     
   
 
     
   
 
     
 
     
     
     
     
     
 
     
     
     
Item 5. Other Information  48
     
     
 
 


 
PART I.   FINANCIAL INFORMATION

Item 1.   Financial Statements

BROOKDALE SENIOR LIVING INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except stock amounts)

   
September 30,
2009
   
December 31,
2008
 
Assets
 
(Unaudited)
       
Current assets
           
Cash and cash equivalents
  $ 159,313     $ 53,973  
Cash and escrow deposits — restricted
    104,434       86,723  
Accounts receivable, net
    81,583       91,646  
Deferred tax asset
    14,677       14,677  
Prepaid expenses and other current assets, net
    46,195       33,766  
Total current assets
    406,202       280,785  
Property, plant and equipment and leasehold intangibles, net
    3,620,469       3,697,834  
Cash and escrow deposits — restricted
    66,971       29,988  
Investment in unconsolidated ventures
    22,180       28,420  
Goodwill
    109,967       109,967  
Other intangible assets, net
    206,438       231,589  
Other assets, net
    69,455       70,675  
Total assets
  $ 4,501,682     $ 4,449,258  
                 
Liabilities and Stockholders’ Equity
               
Current liabilities
               
Current portion of long-term debt
  $ 155,397     $ 158,476  
Current portion of line of credit
          4,453  
Trade accounts payable
    42,541       29,105  
Accrued expenses
    184,873       170,366  
Refundable entrance fees and deferred revenue
    256,061       253,647  
Tenant security deposits
    14,920       29,965  
Total current liabilities
    653,792       646,012  
Long-term debt, less current portion
    2,304,168       2,235,000  
Line of credit, less current portion
          155,000  
Deferred entrance fee revenue
    81,221       76,410  
Deferred liabilities
    145,998       135,947  
Deferred tax liability
    159,389       178,647  
Other liabilities
    55,460       61,641  
Total liabilities
    3,400,028       3,488,657  
Commitments and contingencies
               
                 
Stockholders’ Equity
               
Preferred stock, $0.01 par value, 50,000,000 shares authorized at September 30, 2009 and December 31, 2008; no shares issued and outstanding
           
Common stock, $0.01 par value, 200,000,000 shares authorized at September 30, 2009 and December 31, 2008; 124,386,194 and 106,467,764 shares issued and 123,174,893 and 105,256,463 shares outstanding (including 4,556,436 and 3,542,801 unvested restricted shares), respectively
    1,232       1,053  
Additional paid-in-capital
    1,876,783       1,690,851  
Treasury stock, at cost; 1,211,301 shares at September 30, 2009 and December 31, 2008
    (29,187 )     (29,187 )
Accumulated deficit
    (746,176 )     (700,720 )
Accumulated other comprehensive loss
    (998 )     (1,396 )
Total stockholders’ equity
    1,101,654       960,601  
Total liabilities and stockholders’ equity
  $ 4,501,682     $ 4,449,258  
See accompanying notes to condensed consolidated financial statements.


 
BROOKDALE SENIOR LIVING INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited, in thousands, except per share data)

   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Revenue
                       
Resident fees
  $ 503,856     $ 480,750     $ 1,499,544     $ 1,435,522  
Management fees
    1,987       1,527       5,002       5,604  
Total revenue
    505,843       482,277       1,504,546       1,441,126  
                                 
Expense
                               
Facility operating expense (excluding depreciation and amortization of $45,851, $45,670, $137,102 and $143,765, respectively)
    328,939       322,601       963,637       934,186  
General and administrative expense (including non-cash stock-based compensation expense of $7,869, $6,737, $21,549 and $23,368, respectively)
    34,720       32,948       100,148       109,633  
Hurricane and named tropical storms expense
          3,613             3,613  
Facility lease expense
    68,036       67,017       204,211       202,028  
Depreciation and amortization
    66,983       67,066       202,378       207,882  
Total operating expense
    498,678       493,245       1,470,374       1,457,342  
Income (loss) from operations
    7,165       (10,968 )     34,172       (16,216 )
                                 
Interest income
    623       1,383       1,771       6,169  
Interest expense
                               
Debt
    (30,574 )     (37,599 )     (96,845 )     (110,894 )
Amortization of deferred financing costs
    (2,167 )     (3,004 )     (7,099 )     (6,940 )
Change in fair value of derivatives and amortization
    (2,478 )     (8,454 )     1,137       (17,344 )
Loss on extinguishment of debt
    (1,178 )           (2,918 )     (3,052 )
Equity in earnings (loss) of unconsolidated ventures
    42       358       1,218       (750 )
Other non-operating (expense) income
    (52 )     69       4,172       (424 )
Loss before income taxes
    (28,619 )     (58,215 )     (64,392 )     (149,451 )
Benefit for income taxes
    7,329       22,338       18,936       54,996  
   Net loss
  $ (21,290 )   $ (35,877 )   $ (45,456 )   $ (94,455 )
                                 
Basic and diluted loss per share
  $ (0.18 )   $ (0.36 )   $ (0.42 )   $ (0.93 )
 
Weighted average shares used in
 computing basic and diluted loss per share
    118,455       101,398       108,807       101,748  
                                 
Dividends declared per share
  $     $ 0.25     $     $ 0.75  

See accompanying notes to condensed consolidated financial statements.


BROOKDALE SENIOR LIVING INC.
CONDENSED CONSOLIDATED STATEMENT OF EQUITY
 (Unaudited, in thousands)

   
Common Stock
                               
   
Shares
   
Amount
   
Additional
Paid-In-
Capital
   
Treasury Stock
   
Accumulated
Deficit
   
Accumulated Other Comprehensive Loss
   
Total
 
Balances at January 1, 2009
    105,256     $ 1,053     $ 1,690,851     $ (29,187 )   $ (700,720 )   $ (1,396 )   $ 960,601  
Compensation expense related to restricted stock and restricted stock unit grants
                21,549                         21,549  
Net loss
                            (45,456 )           (45,456 )
Issuance of common stock under Associate Stock Purchase Plan
    92       1       742                         743  
Restricted stock, net
    1,780       18       (18 )                        
Reclassification of net loss on derivatives into earnings
                                  369       369  
Amortization of payments from settlement of forward interest rate swaps
                                  282       282  
Issuance of common stock from equity offering, net
    16,047       160       163,667                         163,827  
Other
                    (8 )                     (253 )     (261 )
Balances at September 30, 2009
     123,175     $  1,232     $  1,876,783     $ (29,187 )   $ (746,176 )   $ (998 )   $  1,101,654  


See accompanying notes to condensed consolidated financial statements.
 


BROOKDALE SENIOR LIVING INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited, in thousands)

   
Nine Months Ended
September 30,
 
   
2009
   
2008
 
Cash Flows from Operating Activities
           
Net loss
  $ (45,456 )   $ (94,455 )
Adjustments to reconcile net loss to net cash provided by operating activities:
               
Loss on extinguishment of debt
    2,918       3,052  
Depreciation and amortization
    209,477       214,822  
Equity in (earnings) loss of unconsolidated ventures
    (1,218 )     750  
Distributions from unconsolidated ventures from cumulative share of net earnings
    455       1,918  
Amortization of deferred gain
    (3,259 )     (3,257 )
Amortization of entrance fees
    (16,084 )     (16,527 )
Proceeds from deferred entrance fee revenue
    23,225       15,210  
Deferred income tax benefit
    (19,440 )     (57,243 )
Change in deferred lease liability
    12,073       15,675  
Change in fair value of derivatives and amortization
    (1,137 )     17,344  
Gain on sale of assets
    (4,352 )      
Non-cash stock-based compensation
    21,549       23,368  
Changes in operating assets and liabilities:
               
Accounts receivable, net
    11,234       (18,165 )
Prepaid expenses and other assets, net
    (10,734 )     1,263  
Accounts payable and accrued expenses
    29,557       3,051  
Tenant refundable fees and security deposits
    (14,297 )     (439 )
Deferred revenue
    1,811       (3,392 )
Other
    (10,350 )     4,379  
Net cash provided by operating activities
    185,972       107,354  
                 
Cash Flows from Investing Activities
               
Decrease in lease security deposits and lease acquisition deposits, net
    2,071       2,416  
Increase in cash and escrow deposits — restricted
    (54,694 )     (7,795 )
Net proceeds from the sale of property, plant and equipment
    210        
Additions to property, plant and equipment and leasehold intangibles, net of related payables
    (87,507 )     (134,179 )
Acquisition of assets, net of related payables and cash received
    (1,227 )     (5,105 )
(Issuance of) payment on notes receivable, net
    (590 )     39,661  
Investment in unconsolidated ventures
    (1,246 )     (1,163 )
Distributions received from unconsolidated ventures
    969       300  
Proceeds from sale leaseback transaction
    9,166        
Proceeds from sale of unconsolidated venture
    8,831       4,165  
Net cash used in investing activities
    (124,017 )     (101,700 )
                 
Cash Flows from Financing Activities
               
Proceeds from debt
    67,986       467,769  
Repayment of debt and capital lease obligation
    (21,194 )     (229,210 )
Proceeds from line of credit
    60,446       264,757  
Repayment of line of credit
    (219,899 )     (378,000 )
Payment of dividends
          (103,696 )
Purchase of treasury stock
          (29,187 )
Payment of financing costs, net of related payables
    (7,258 )     (13,720 )
Proceeds from public equity offering, net
    163,827        
Other
    (713 )     (1,373 )
Refundable entrance fees:
               
      Proceeds from refundable entrance fees
    17,032       15,185  
      Refunds of entrance fees
    (16,842 )     (14,331 )
Recouponing and payment of swap termination
          (27,627 )
Cash portion of loss on extinguishment of debt
          (1,240 )
Net cash provided by (used in) financing activities
    43,385       (50,673 )
   Net increase (decrease) in cash and cash equivalents
    105,340       (45,019 )
   Cash and cash equivalents at beginning of period
    53,973       100,904  
   Cash and cash equivalents at end of period
  $ 159,313     $ 55,885  
See accompanying notes to condensed consolidated financial statements.



BROOKDALE SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)

1.  Description of Business

Brookdale Senior Living Inc. (“Brookdale”, “BSL” or the “Company”) is a leading owner and operator of senior living communities throughout the United States.  The Company provides an exceptional living experience through properties that are designed, purpose-built and operated to provide the highest quality service, care and living accommodations for residents.  The Company owns, leases and operates retirement centers, assisted living and dementia-care communities and continuing care retirement centers (“CCRCs”).

2.  Summary of Significant Accounting Policies

Basis of Presentation
 
The accompanying unaudited interim condensed consolidated financial statements have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission for quarterly reports on Form 10-Q. In the opinion of management, these financial statements include all adjustments necessary to present fairly the financial position, results of operations and cash flows of the Company as of September 30, 2009, and for all periods presented. The condensed consolidated financial statements are prepared on the accrual basis of accounting. All adjustments made have been of a normal and recurring nature. Certain information and footnote disclosures normally included in annual financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted. The Company believes that the disclosures included are adequate and provide a fair presentation of interim period results. Interim financial statements are not necessarily indicative of the financial position or operating results for an entire year. It is suggested that these interim financial statements be read in conjunction with the audited financial statements and the notes thereto, together with management’s discussion and analysis of financial condition and results of operations, included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, as filed with the Securities and Exchange Commission.

Revenue Recognition

Resident Fees

Resident fee revenue is recorded when services are rendered and consist of fees for basic housing, support services and fees associated with additional services such as personalized health and assisted living care. Residency agreements are generally for a term of 30 days to one year, with resident fees billed monthly in advance. Revenue for certain skilled nursing services and ancillary charges is recognized as services are provided and is billed monthly in arrears.

Entrance Fees

Certain of the Company’s communities have residency agreements which require the resident to pay an upfront fee prior to occupying the community.  In addition, in connection with the Company’s MyChoice program, new and existing residents are allowed to pay additional entrance fee amounts in return for a reduced monthly service fee.  The non-refundable portion of the entrance fee is recorded as deferred revenue and amortized over the estimated stay of the resident based on an actuarial valuation.  The refundable portion of a resident’s entrance fee is generally refundable within a certain number of months or days following contract termination or in certain agreements, upon the resale of the resident’s unit or a comparable unit or 12 months after the resident vacates the unit.  In such instances the refundable portion of the fee is not amortized and included in refundable entrance fees and deferred revenue.

Certain contracts require the refundable portion of the entrance fee plus a percentage of the appreciation of the unit, if any, to be refunded only upon resale of a comparable unit (“contingently refundable”).  Upon resale the Company may receive reoccupancy proceeds in the form of additional contingently refundable fees, refundable fees, or non-refundable fees.  The Company estimates the amount of reoccupancy proceeds to be received from additional


 
contingently refundable fees or non-refundable fees and records such amount as deferred revenue.  The deferred revenue is amortized over the life of the community and was approximately $62.2 million and $63.4 million at September 30, 2009 and December 31, 2008, respectively.  All remaining contingently refundable fees not recorded as deferred revenue and amortized are included in refundable entrance fees and deferred revenue.

All refundable amounts due to residents at any time in the future, including those recorded as deferred revenue, are classified as current liabilities.

The non-refundable portion of entrance fees expected to be earned and recognized in revenue in one year is recorded as a current liability.  The balance of the non-refundable portion is recorded as a long-term liability.

Community Fees

Substantially all community fees received are non-refundable and are recorded initially as deferred revenue.  The deferred amounts, including both the deferred revenue and the related direct resident lease origination costs, are amortized over the estimated stay of the resident which is consistent with the implied contractual terms of the resident lease.

Management Fees

Management fee revenue is recorded as services are provided to the owners of the communities. Revenues are determined by an agreed upon percentage of gross revenues (as defined).

Fair Value Measurements

Cash and cash equivalents, cash and escrow deposits-restricted and derivative financial instruments are reflected in the accompanying condensed consolidated balance sheets at amounts considered by management to reasonably approximate fair value.  Management estimates the fair value of its long-term debt using a discounted cash flow analysis based upon the Company’s current borrowing rate for debt with similar maturities and collateral securing the indebtedness.  The Company had outstanding debt with a carrying value of $2.5 billion and $2.6 billion as of September 30, 2009 and December 31, 2008, respectively.  The fair value of debt both as of September 30, 2009 and December 31, 2008 was $2.4 billion.

The Financial Accounting Standards Board (FASB) guidance on Fair Value Measurement establishes a three-level valuation hierarchy for disclosure of fair value measurements. The valuation hierarchy is based upon the transparency of inputs to the valuation of an asset or liability as of the measurement date. A financial instrument’s categorization within the valuation hierarchy is based upon the lowest level of input that is significant to the fair value measurement. The three levels are defined as follows:

Level 1 – Inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets.
Level 2 – Inputs to the valuation methodology include quoted prices for similar assets and liabilities in active markets, and inputs that are observable for the asset or liability, either directly or indirectly, for substantially the full term of the financial instrument.
Level 3 – Inputs to the valuation methodology are unobservable and significant to the fair value measurement.

The Company’s derivative positions are valued using models developed internally by the respective counterparty that use as their basis readily observable market parameters (such as forward yield curves) and are classified within Level 2 of the valuation hierarchy.

The Company considers its own credit risk as well as the credit risk of its counterparties when evaluating the fair value of its derivatives. Any adjustments resulting from credit risk are recorded as a change in fair value of derivatives and amortization in the current period statement of operations (Note 16).


 
Self-Insurance Liability Accruals

The Company is subject to various legal proceedings and claims that arise in the ordinary course of its business. Although the Company maintains general liability and professional liability insurance policies for its owned, leased and managed communities under a master insurance program, the Company’s current policies provide for deductibles for each claim ($3.0 million on or prior to December 31, 2008 and $250,000 effective January 1, 2009). As a result, the Company is, in effect, self-insured for most claims. In addition, the Company maintains a self-insured workers compensation program and a self-insured employee medical program for amounts below excess loss coverage amounts, as defined. The Company reviews the adequacy of its accruals related to these liabilities on an ongoing basis, using historical claims, actuarial valuations, third party administrator estimates, consultants, advice from legal counsel and industry data, and adjusts accruals periodically. Estimated costs related to these self-insurance programs are accrued based on known claims and projected claims incurred but not yet reported. Subsequent changes in actual experience are monitored and estimates are updated as information is available.

Treasury Stock

The Company accounts for treasury stock under the cost method and includes treasury stock as a component of stockholders’ equity.

New Accounting Pronouncements

The Company follows accounting standards set by the FASB.  The FASB sets generally accepted accounting principles (“GAAP”) that the Company follows to ensure consistent reporting of its financial condition, results of operations and cash flows.  References to GAAP issued by the FASB in these footnotes are to the FASB Accounting Standards Codification, sometimes referred to as the Codification or ASC.  The FASB finalized the Codification effective for periods ending on or after September 15, 2009.  The Codification does not change how the Company accounts for its transactions or the nature of related disclosures made.  

The FASB guidance on Business Combinations was effective for business combinations with an acquisition date on or after January 1, 2009 and is to be applied prospectively.  The guidance was issued to improve the relevance, representational faithfulness, and comparability of the information that a reporting entity provides in its financial reports about a business combination and its effects.  Itestablishes principles and requirements for how the acquirer recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, and any noncontrolling interest in the acquiree, recognizes and measures the goodwill acquired in the business combination or a gain from a bargain purchase and determines what information to disclose to enable users of the financial statements to evaluate the nature and financial effects of the business combination.  As of September 30, 2009, this guidance has not had a material impact on the condensed consolidated financial statements.    

The Company adopted the provisions of the FASB guidance on Consolidations relating to the accounting for noncontrolling interests on January 1, 2009.  This guidance amends previous authoritative guidance by requiring companies to report a noncontrolling interest in a subsidiary as equity in its consolidated financial statements.  Disclosure of the amounts of consolidated net income attributable to the parent and the noncontrolling interest are required.  This guidance also clarifies that transactions that result in a change in a parent’s ownership interest in a subsidiary that do not result in deconsolidation will be treated as equity transactions, while a gain or loss will be recognized by the parent when a subsidiary is deconsolidated.  Other than the required disclosures, the adoption had no impact on the condensed consolidated financial statements.

In February 2008, the FASB issued guidance which delays the effective date of the FASB guidance on Fair Value Measurements for all nonfinancial assets and liabilities, except those that are recognized or disclosed at fair value in the financial statements on a recurring basis (at least annually).  The guidance partially defers the effective date of the FASB guidance to fiscal years beginning after November 15, 2008 and as a result was effective for the Company beginning January 1, 2009.  The adoption of the guidance had no impact on the condensed consolidated financial statements.  

The Company adopted the provision of the FASB guidance on disclosures relating to Derivatives and Hedging on January 1, 2009.  This guidance requires entities to provide enhanced disclosures about how and why an entity uses derivative instruments, how derivative instruments and related hedge items are accounted for and how derivative

 
instruments and related hedged items affect an entity’s financial position, results of operations and cash flows.  Other than the required disclosures, the adoption had no impact on the condensed consolidated financial statements.

The Company adopted the provisions of the guidance relating to the Determination of the Useful Life of Intangible Assets on January 1, 2009.  This guidance amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset and provides for enhanced disclosures regarding intangible assets.  The intent of this guidance is to improve the consistency between the useful life of a recognized intangible asset and the period of expected cash flows used to measure the fair value of the asset.  The disclosure provisions are effective as of the adoption date and the guidance for determining the useful life applies prospectively to all intangible assets acquired after the effective date.  The adoption had no impact on the condensed consolidated financial statements.

The Company adopted the provisions of Emerging Issues Task Force (“EITF”) guidance on Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities on January 1, 2009.  The EITF provides that unvested share-based payment awards that contain nonforfeitable rights to dividends or dividend equivalents (whether paid or unpaid) are participating securities and shall be included in the computation of earnings per share.  The adoption did not have a material impact on the condensed consolidated financial statements.

The Company adopted the guidance relating to Interim Disclosures about Fair Value of Financial Instruments on June 1, 2009.  This guidance requires disclosures about fair value of financial instruments for interim periods of publicly traded companies as well as in annual financial statements.  Other than the required disclosures, the adoption had no impact on the condensed consolidated financial statements.
 
The Company adopted the guidance related to the Accounting for Assets Acquired and Liabilities Assumed in a Business Combination that Arise from Contingencies effective January 1, 2009.  The guidance amends and clarifies guidance previously issued on Business Combinations and addresses application issues on initial recognition and measurement, subsequent measurement and accounting, and disclosure of assets and liabilities arising from contingencies in a business combination.  The Company had no acquisitions during the nine months ended September 30, 2009; therefore, the adoption of the guidance had no impact on the condensed consolidated financial statements.
 
In May 2009, the FASB issued guidance on Subsequent Events.  This guidance establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but before the financial statements are issued or are available to be issued. Although the guidance is based on the same principles as those that currently exist in the auditing standards, it includes a new required disclosure of the date through which an entity has evaluated subsequent events. The Company adopted this guidance in June 2009 and other than the required disclosures, the adoption had no impact on the condensed consolidated financial statements.

In June 2009, the FASB issued guidance which amends previously issued guidance on the Consolidation of Variable Interest Entities.  This guidance changes how a company determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated.  The determination of whether a company is required to consolidate an entity is based on, among other things, an entity’s purpose and design and a company’s ability to direct the activities of the entity that most significantly impacts the entity’s economic performance.  The guidance is effective for the Company beginning January 1, 2010.  The Company is currently evaluating the impact its provisions will have on its condensed consolidated financial statements.

Dividends

On December 30, 2008, the Company’s board of directors voted to suspend the Company’s quarterly cash dividend indefinitely.
 
 
Reclassifications

Certain prior period amounts have been reclassified to conform to the current financial statement presentation, with no effect on the Company’s condensed consolidated financial position or results of operations.


 
3.  Earnings Per Share

Basic earnings per share (“EPS”) is calculated by dividing net income by the weighted average number of shares of common stock outstanding.  Diluted EPS includes the components of basic EPS and also gives effect to dilutive common stock equivalents.  For purposes of calculating basic and diluted earnings per share, vested restricted stock awards are considered outstanding.  Under the treasury stock method, diluted EPS reflects the potential dilution that could occur if securities or other instruments that are convertible into common stock were exercised or could result in the issuance of common stock.  Potentially dilutive common stock equivalents include unvested restricted stock and restricted stock units.

During the three and nine months ended September 30, 2009 and September 30, 2008, the Company reported a consolidated net loss.  As a result of the net loss, unvested restricted stock and restricted stock unit awards were antidilutive for each period and were not included in the computation of diluted weighted average shares.  The weighted average restricted stock and restricted stock unit grants excluded from the calculations of diluted net loss per share was 2.0 million and 1.4 million for the three months ended September 30, 2009 and 2008, respectively, and 1.2 million and 1.4 million for the nine months ended September 30, 2009 and 2008, respectively.

4.  Stock-Based Compensation

The Company recorded $7.9 million and $6.7 million of compensation expense in connection with grants of restricted stock and restricted stock units for the three months ended September 30, 2009 and 2008, respectively, and $21.5 million and $23.4 million of such expense for the nine months ended September 30, 2009 and 2008, respectively.  For the three and nine months ended September 30, 2009 and 2008, compensation expense was calculated net of forfeitures estimated from 0% - 6% of the shares granted.

For all awards with graded vesting other than awards with performance-based vesting conditions, the Company records compensation expense for the entire award on a straight-line basis over the requisite service period.  For graded-vesting awards with performance-based vesting conditions, total compensation expense is recognized over the requisite service period for each separately vesting tranche of the award as if the award is, in substance, multiple awards once the performance target is deemed probable of achievement.  Performance goals are evaluated quarterly.  If such goals are not ultimately met or it is not probable the goals will be achieved, no compensation expense is recognized and any previously recognized compensation expense is reversed.

During the current year, the Company issued restricted stock units to its Chief Executive Officer.  Under the terms of the award agreement, upon vesting, each restricted stock unit represents the right to receive one share of the Company’s common stock.

Current year grants of restricted shares and restricted stock units under the Company’s Omnibus Stock Incentive Plan were as follows (amounts in thousands except for value per share):

   
Shares / Restricted
Stock Units Granted
   
Value Per Share
   
Total Value
 
Three months ended March 31, 2009
    84     $ 3.48 – $6.15     $ 301  
Three months ended June 30, 2009
    2,562     $ 5.14 – $9.39     $ 24,030  
Three months ended September 30, 2009
    65     $ 9.83 – $10.71     $ 694  

The Company has an employee stock purchase plan for all eligible employees.  The plan became effective on October 1, 2008.  Under the plan, eligible employees of the Company can purchase shares of the Company’s common stock on a quarterly basis at a discounted price through accumulated payroll deductions.  Each eligible employee may elect to deduct up to 15% of his or her base pay each quarter.  Subject to certain limitations specified in the plan, on the last trading date of each calendar quarter, the amount deducted from each participant’s pay over the course of the quarter will be used to purchase whole shares of the Company’s common stock at a purchase price equal to 90% of the closing market price on the New York Stock Exchange on such date.  Initially, the Company has reserved 1,000,000 shares of common stock for issuance under the plan.  The employee stock purchase plan also contains an “evergreen” provision that automatically increases the number of shares reserved for issuance under the plan by 200,000 shares on the first day of each calendar year beginning January 1, 2010.  The impact on the Company’s current year condensed consolidated financial statements is not material.


 
5.  Goodwill and Other Intangible Assets, Net

There were no changes in the carrying amount of goodwill for the nine months ended September 30, 2009.  Goodwill by operating segment as of September 30, 2009 and December 31, 2008 was as follows (dollars in thousands):
 
   
Retirement
Centers
   
Assisted
Living
   
Total
 
Goodwill
  $ 7,155     $ 102,812     $ 109,967  

Goodwill is tested for impairment annually with a test date of October 1 or sooner if indicators of impairment are present.  No indicators of impairment were present during the nine months ended September 30, 2009.

Intangible assets with definite useful lives are amortized over their estimated lives and are tested for impairment whenever indicators of impairment arise. The following is a summary of other intangible assets at September 30, 2009 and December 31, 2008 (dollars in thousands):

   
September 30, 2009
   
December 31, 2008
 
   
Gross
Carrying
Amount
   
Accumulated
Amortization
   
Net
   
Gross
Carrying
Amount
   
Accumulated
Amortization
   
Net
 
Community purchase options
  $ 147,682     $ (9,245 )   $ 138,437     $ 147,682     $ (6,457 )   $ 141,225  
Management contracts and other
    158,041       (101,538 )     56,503       158,041       (77,807 )     80,234  
Home health licenses
    11,498             11,498       10,130             10,130  
Total
  $ 317,221     $ (110,783 )   $ 206,438     $ 315,853     $ (84,264 )   $ 231,589  

Amortization expense related to definite-lived intangible assets for the three months ended September 30, 2009 and 2008 was $8.7 million and $8.9 million, respectively, and $26.5 million and $26.7 million of amortization expense was recorded for the nine months ended September 30, 2009 and 2008, respectively.  Home health licenses were determined to be indefinite-lived intangible assets and are not subject to amortization.

6.  Property, Plant and Equipment and Leasehold Intangibles, Net
 
Property, plant and equipment and leasehold intangibles, net, which include assets under capital leases, consist of the following (dollars in thousands):

   
September 30,
2009
   
December 31,
2008
 
Land
  $ 252,297     $ 253,453  
Buildings and improvements
    2,736,184       2,626,079  
Furniture and equipment
    301,577       277,680  
Resident and operating lease intangibles
    625,228       607,256  
Construction in progress
    16,741       98,418  
Assets under capital and financing leases
    575,351       555,872  
      4,507,378       4,418,758  
Accumulated depreciation and amortization
    (886,909 )     (720,924 )
Property, plant and equipment and leasehold intangibles, net
  $ 3,620,469     $ 3,697,834  



 
7.  Sale-Leaseback Transaction
 
On March 2, 2009, the Company entered into a sale-leaseback transaction with a third party lessor for the sale and leaseback of one of its skilled nursing facilities.  The Company sold the facility for a total of $10.0 million and immediately leased the facility back.  Under the terms of the lease agreement, the Company will continue to operate the facility until December 31, 2019.  The lease is accounted for as an operating lease.

8.  Debt

Long-term Debt, Capital Leases and Financing Obligations

Long-term debt, capital leases and financing obligations consist of the following (dollars in thousands):

   
September 30,
2009
   
December 31,
2008
 
 
Mortgage notes payable due 2009 through 2039; weighted average interest rate of 4.64% for the nine months ended September 30, 2009 (weighted average interest rate of 5.33% in 2008)
  $ 1,325,029     $ 1,246,204  
 
$150,000 Series A notes payable, secured by five communities and by a $3.0 million letter of credit, bearing interest at LIBOR plus 0.88%, payable in monthly installments of interest only until August 2011 and payable in monthly installments of principal and interest through maturity in August 2013
    150,000       150,000  
 
Mortgages payable due 2012; weighted average interest rate of 5.64% for the nine months ended September 30, 2009 (weighted average interest rate of 5.64% in 2008), payable interest only through July 2010 and payable in monthly installments of principal and interest through maturity in July 2012, secured by the underlying assets of the portfolio
    212,407       212,407  
 
Variable rate tax-exempt bonds credit-enhanced by Fannie Mae; weighted average interest rate of 1.91% for the nine months ended September 30, 2009 (weighted average interest rate of 4.40% in 2008), due 2032, payable interest only until maturity, secured by the underlying assets of the portfolio
    100,841       100,841  
 
Capital and financing lease obligations payable through 2020; weighted average interest rate of 8.82% for the nine months ended September 30, 2009 (weighted average interest rate of 8.81% in 2008)
    323,474       318,440  
 
Mortgage note, bearing interest at a variable rate of LIBOR plus 0.70%, payable interest only through maturity in August 2012.  The note is secured by 15 of the Company’s communities and an $11.5 million guaranty by the Company
    315,180       315,180  
 
Construction financing due 2011 through 2023; weighted average interest rate of 7.63% for the nine months ended September 30, 2009 (weighted average interest rate of 6.02% in 2008)
    32,634       50,404  
 
Total debt
    2,459,565       2,393,476  
 
Less current portion
    155,397       158,476  
 
Total long-term debt
  $ 2,304,168     $ 2,235,000  
 

 
Although certain debt obligations are scheduled to mature on or prior to September 30, 2010, the Company has the option, subject to the satisfaction of customary conditions (such as the absence of a material adverse change), to extend the maturity of approximately $131.0 million of certain non-recourse mortgages payable until 2011, as the instruments associated with these mortgages payable provide that the Company can extend the respective maturity dates for one 12 month term each from the existing maturity dates.

Credit Facilities

On February 27, 2009, the Company entered into a Second Amended and Restated Credit Agreement with Bank of America, N.A., as administrative agent, Banc of America Securities LLC, as sole lead arranger and book manager, and the several lenders from time to time parties thereto. The amended credit agreement amended and restated the Company’s $245.0 million secured line of credit and terminated the associated $80.0 million letter of credit facility.

The amended credit agreement initially consisted of a $230.0 million revolving loan facility with a $25.0 million letter of credit sublimit and is scheduled to mature on August 31, 2010.

Pursuant to the terms of the amended credit agreement, certain of the Company’s subsidiaries, as guarantors, will guarantee obligations under the amended credit agreement and the other loan documents.  Further, in connection with the amended credit agreement, (i) the Company and certain guarantors executed and delivered a Pledge Agreement in favor of the administrative agent for the banks and other financial institutions from time to time parties to the amended credit agreement, pursuant to which such guarantors pledged certain assets for the benefit of the secured parties as collateral security for the payment and performance of the Company’s obligations under the amended credit agreement and the other loan documents and (ii) certain guarantors granted mortgages and executed and delivered a Security Agreement, in each case, in favor of the administrative agent for the banks and other financial institutions from time to time parties to the amended credit agreement encumbering certain real and personal property of such guarantors.  The collateral includes, among other things, certain real property and related personal property owned by the guarantors, equity interests in certain of the Company’s subsidiaries, all related books and records and, to the extent not otherwise included, all proceeds and products of any and all of the foregoing.

At the option of the Company, amounts drawn under the revolving loan facility initially bore interest at either (i) LIBOR plus a margin of 7.0% or (ii) the greater of (a) the Bank of America prime rate or (b) the Federal Funds rate plus 0.5%, plus a margin of 7.0%.  For purposes of determining the interest rate, in no event shall the base rate or LIBOR be less than 3.0%.  In connection with the loan commitments, the Company will pay a quarterly commitment fee of 1.0% per annum on the average daily amount of undrawn funds.  The Company was initially required to pay a fee equal to 7.0% of the amount of any issued and outstanding letters of credit; provided, with respect to drawable amounts that have been cash collateralized, the letter of credit fee shall be payable at a rate per annum equal to 2.0%.

The amended credit agreement contains typical representations and covenants for loans of this type, including restrictions on the Company’s ability to pay dividends, make distributions, make acquisitions, incur capital expenditures, incur new liens or repurchase shares of the Company’s common stock. The amended credit agreement also contains financial covenants, including covenants with respect to maximum consolidated adjusted leverage, minimum consolidated fixed charge coverage, minimum tangible net worth, and maximum total capital expenditures.  A violation of any of these covenants (including any failure to remain in compliance with any financial covenants contained therein) could result in a default under the amended credit agreement, which would result in termination of all commitments and loans under the amended credit agreement and all other amounts owing under the amended credit agreement and certain other loan agreements becoming immediately due and payable.

On June 1, 2009, in connection with the equity offering described in Note 15, the Company entered into the First Amendment to the Second Amended and Restated Credit Agreement (the “First Amendment”) pursuant to which the maximum revolving loans that can be outstanding at any time under the amended credit agreement was reduced to $75.0 million.  In addition, the interest rate margin on loans, as well as fees on letters of credit, as a result of the maximum amount of the facility having been reduced to $75.0 million, was reduced to 6.0%.

Pursuant to the First Amendment, the Company has been given greater flexibility to make acquisitions by increasing aggregate permitted cash consideration from $10.0 million to $100.0 million, to make capital expenditures up to $30.0 million per quarter and to incur an additional $20.0 million in liens and letters of credit.



As of September 30, 2009, the Company has an available secured line of credit of $75.0 million (including a $25.0 million letter of credit sublimit) and separate unsecured letter of credit facilities of up to $48.5 million in the aggregate.  As of September 30, 2009, there were no borrowings under the revolving loan facility, $23.7 million of letters of credit had been issued under the amended credit facility, and $48.5 million of letters of credit had been issued under the separate unsecured letter of credit facilities.

In late 2008, the Company began replacing some of its outstanding letters of credit with restricted cash in order to reduce the Company’s letter of credit needs.

Financings

On January 30, 2009, the Company amended and restated a $52.6 million first mortgage loan, secured by the underlying properties, which was payable interest only through maturity in March 2009.  Pursuant to the amendment, the maturity date has been extended to March 31, 2011.  The amended and restated loan bears interest at LIBOR plus 4.0% and requires principal amortization.  In connection with the amendment, the Company made a $3.0 million payment to reduce the outstanding principal amount of the loan.

On February 25, 2009, the Company amended a $41.0 million first mortgage loan, secured by the underlying properties, which was payable interest only through maturity in June 2009.  Pursuant to the amendment, the maturity date has been extended to June 2011.  The amended loan is evidenced by two promissory notes, the first of which is in the principal amount of $26.0 million and bears interest at LIBOR plus 3.0%.  The second promissory note is in the amount of $15.0 million and bears interest at LIBOR plus 5.6%.  Both notes require principal amortization.  In connection with the amendment, the Company made a $2.0 million payment to reduce the outstanding principal amount of the $26.0 million loan.

Effective May 11, 2009, the Company exercised its option to extend the maturity date of $131.0 million of mortgage notes from May 11, 2009 to May 11, 2010.  No other terms of the notes were changed in connection with the extension.

As of September 30, 2009, the Company is in compliance with the financial covenants of its outstanding debt and lease agreements.

Interest Rate Swaps and Caps

In the normal course of business, a variety of financial instruments are used to manage or hedge interest rate risk.  Interest rate protection and swap agreements were entered into to effectively cap or convert floating rate debt to a fixed rate basis, as well as to hedge anticipated future financing transactions.  Pursuant to the hedge agreements, the Company is required to secure its obligation to the counterparty if the fair value liability exceeds a specified threshold.  Cash collateral pledged to the Company’s counterparties was $18.1 million and $13.9 million as of September 30, 2009 and December 31, 2008, respectively.

All derivative instruments are recognized as either assets or liabilities in the condensed consolidated balance sheets at fair value.  The change in mark-to-market of the value of the derivative is recorded as an adjustment to income or other comprehensive loss depending on whether it has been designated and qualifies as an accounting hedge.

Derivative contracts are not entered into for trading or speculative purposes.  Furthermore, the Company has a policy of only entering into contracts with major financial institutions based upon their credit rating and other factors.  Under certain circumstances, the Company may be required to replace a counterparty in the event that the counterparty does not maintain a specified credit rating.

The following table summarizes the Company’s swap instruments at September 30, 2009 (dollars in thousands):
 
 
 
Current notional balance
  $ 351,840  
Highest possible notional
  $ 351,840  
Lowest interest rate
    3.24 %
Highest interest rate
    4.47 %
Average fixed rate
    3.74 %
Earliest maturity date
    2011  
Latest maturity date
    2014  
Weighted average original maturity
 
4.7 years
 
Estimated liability fair value (included in other liabilities at September 30, 2009)
  $ (19,564 )
Estimated asset fair value (included in other assets, net at September 30, 2009)
  $  

The following table summarizes the Company’s cap instruments at September 30, 2009 (dollars in thousands):

Current notional balance
  $ 734,621  
Highest possible notional
  $ 734,621  
Lowest interest rate
    4.96 %
Highest interest rate
    6.50 %
Average fixed rate
    5.97 %
Earliest maturity date
    2011  
Latest maturity date
    2012  
Weighted average original maturity
 
3.8 years
 
Estimated liability fair value (included in other liabilities at September 30, 2009)
  $  
Estimated asset fair value (included in other assets, net at September 30, 2009)
  $ 942  

During the three and nine months ended September 30, 2009, the fair value of the Company’s interest rate swaps and caps decreased $2.5 million and increased $1.1 million, respectively.  During the three and nine months ended September 30, 2008, the fair value of the Company’s interest rate swaps and caps decreased $8.5 million and $17.3 million, respectively.  This is included as a component of interest expense in the condensed consolidated statements of operations.

9.  Litigation

The Company has been and is currently involved in litigation and claims incidental to the conduct of its business which are comparable to other companies in the senior living industry. Certain claims and lawsuits allege large damage amounts and may require significant costs to defend and resolve. Similarly, the senior living industry is continuously subject to scrutiny by governmental regulators, which could result in litigation related to regulatory compliance matters. As a result, the Company maintains insurance policies in amounts and with coverage and deductibles the Company believes are adequate, based on the nature and risks of its business, historical experience and industry standards.  Effective January 1, 2009, the Company’s current policies provide for deductibles of $250,000 for each claim.  Accordingly, the Company is, in effect, self-insured for most claims.


 
10.  Supplemental Disclosure of Cash Flow Information

(dollars in thousands):
   
Nine Months Ended
September 30,
 
   
2009
   
2008
 
Supplemental Disclosure of Cash Flow Information:
           
Interest paid
  $ 99,460     $ 110,998  
Income taxes paid
  $ 1,846     $ 1,401  
                 
Supplemental Schedule of Non-cash Operating, Investing and Financing Activities:
               
Capital leases:
               
Property, plant and equipment and leasehold intangibles, net
  $ 18,236     $ 35,942  
Long-term debt
    (18,236 )     (35,942 )
Net
  $     $  
Lease Incentive:
               
Property, plant and equipment and leasehold intangibles, net
  $ 1,237     $  
Deferred liabilities
    (1,237 )      
Net
  $     $  
De-consolidation of an entity pursuant to FIN 46(R):
               
Accounts receivable
  $     $ 92  
Prepaid expenses and other current assets
          1,861  
Property, plant and equipment and leasehold intangibles, net
          35,268  
Other assets, net
          7  
Investment in unconsolidated ventures
          186  
Long-term debt
          (29,159 )
Accrued expenses
          (1,252 )
Trade accounts payable
          (20 )
Tenant security deposits
          (173 )
Refundable entrance fees and deferred revenue
          (89 )
Additional paid-in-capital
          (9,217 )
Accumulated deficit
          2,496  
Net
  $     $  
Acquisition of assets, net of related payables and cash received:
               
Other intangible assets, net
  $ 1,227     $ 5,105  
Reclassification of other intangibles, net
  $ 141     $  

11.  Facility Operating Leases

A summary of facility lease expense and the impact of straight-line adjustment and amortization of deferred gains are as follows (dollars in thousands):

   
Three Months Ended September 30,
   
Nine Months Ended September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Cash basis payment
  $ 65,331     $ 63,394     $ 195,397     $ 189,610  
Straight-line expense
    3,793       4,709       12,073       15,675  
Amortization of deferred gain
    (1,088 )     (1,086 )     (3,259 )     (3,257 )
Facility lease expense
  $ 68,036     $ 67,017     $ 204,211     $ 202,028  



 
12.  Other Comprehensive Loss, Net

The following table presents the after-tax components of the Company’s other comprehensive loss for the periods presented (dollars in thousands):

   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Net loss
  $ (21,290 )   $ (35,877 )   $ (45,456 )   $ (94,455 )
Reclassification of net loss (gains) on derivatives out of (into) earnings
    123       124       369       (492 )
Amortization of payments from settlement of forward interest rate swaps
    94       94       282       282  
Other
    (84 )     85       (253 )     422  
Total comprehensive loss
  $ (21,157 )   $ (35,574 )   $ (45,058 )   $ (94,243 )

13.  Income Taxes

The Company’s effective tax rates for the three months ended September 30, 2009 and 2008 are 25.6% and 38.4%, respectively, and for the nine months ended September 30, 2009 and 2008 are 29.4 % and 36.8%, respectively.  The difference in the effective rate between these periods is primarily due to the decrease in the calculated  annualized effective rate for 2009 based on projected improvements in the Company’s performance.  The rate was also impacted by the Company’s stock based compensation deduction as calculated under the FASB guidance on Share-Based Payment for 2009 due to the movements in the stock price between September 30, 2008 and September 30, 2009.

The Company recorded additional interest charges related to its tax contingency reserve and a new uncertain tax position for the nine months ended September 30, 2009.  During the three months ended September 30, 2009, the Company settled an uncertain tax position as a result of a state audit.  Tax returns for years 2005 through 2007 are subject to future examination by tax authorities.  In addition, tax returns are open from 1999 through 2004 to the extent of the net operating losses generated during those periods.
 
 
14.  Share Repurchase Program

On March 19, 2008, the Company’s board of directors approved a share repurchase program that authorized the Company to purchase up to $150.0 million in the aggregate of the Company’s common stock.  Purchases could be made from time to time using a variety of methods, which could include open market purchases, privately negotiated transactions or block trades, or by any combination of such methods, in accordance with applicable insider trading and other securities laws and regulations.  The size, scope and timing of any purchases was to be based on business, market and other conditions and factors, including price, regulatory and contractual requirements or consents, and capital availability.  The repurchase program did not obligate the Company to acquire any particular amount of common stock and the program could be suspended, modified or discontinued at any time at the Company’s discretion without prior notice. Shares of stock repurchased under the program were to be held as treasury shares.

On February 25, 2009, the Company’s board of directors terminated this share repurchase authorization.  In addition, the Company’s amended credit facility effectively prohibits the Company from repurchasing shares of its common stock, paying dividends or making distributions.


 
15.  Stockholders’ Equity

On June 8, 2009, the Company completed a public equity offering of 16,046,512 shares of common stock.  The offering yielded net proceeds of approximately $163.7 million which was used primarily to repay the $125.0 million of indebtedness which was outstanding under the Company’s amended credit facility.

16.  Fair Value Measurements

The following table provides the Company’s derivative assets and liabilities carried at fair value as measured on a recurring basis as of September 30, 2009 (dollars in thousands):

   
Total Carrying
Value at
September 30,
2009
   
Quoted prices
in active
markets
(Level 1)
   
Significant
other
observable
inputs
(Level 2)
   
Significant
unobservable
inputs
(Level 3)
 
Derivative assets
  $ 942     $     $ 942     $  
Derivative liabilities
    (19,564 )           (19,564 )      
    $ (18,622 )   $     $ (18,622 )   $  

The Company’s derivative assets and liabilities include interest rate swaps and caps that effectively convert a portion of the Company’s variable rate debt to fixed rate debt.  The derivative positions are valued using models developed internally by the respective counterparty that use as their basis readily observable market parameters (such as forward yield curves) and are classified within Level 2 of the valuation hierarchy.

The Company considers its own credit risk as well as the credit risk of its counterparties when evaluating the fair value of its derivatives. Any adjustments resulting from credit risk are recorded as a change in fair value of derivatives and amortization in the current period statement of operations.

17.  Segment Results

The Company currently has four reportable segments: retirement centers; assisted living; CCRCs; and management services.   These segments were determined based on the way that the Company’s chief operating decision makers organize the Company’s business activities for making operating decisions and assessing performance.

During the fourth quarter of 2008, five communities moved between segments to more accurately reflect their current underlying product offering.  The movement did not change the Company’s reportable segments, but it did impact the revenues and cost reported within each segment.  The net impact of the change was a decrease of one community to the CCRCs segment.

Retirement Centers.  Retirement center communities are primarily designed for middle to upper income senior citizens age 70 and older who desire an upscale residential environment providing the highest quality of service.  The majority of the Company’s retirement center communities consist of both independent living and assisted living units in a single community, which allows residents to “age-in-place” by providing them with a continuum of senior independent and assisted living services.

Assisted Living.  Assisted living communities offer housing and 24-hour assistance with activities of daily life to mid-acuity frail and elderly residents.  The Company’s assisted living communities include both freestanding, multi-story communities and freestanding single story communities.  The Company also operates memory care communities, which are freestanding assisted living communities specially designed for residents with Alzheimer’s disease and other dementias.

CCRCs.  CCRCs are large communities that offer a variety of living arrangements and services to accommodate all levels of physical ability and health.  Most of the Company’s CCRCs have retirement centers, assisted living and skilled nursing available on one campus, and some also include memory care and Alzheimer’s units.


 
Management Services.  The Company’s management services segment includes communities owned by others and operated by the Company pursuant to management agreements.  Under the management agreements for these communities, the Company receives management fees as well as reimbursed expenses, which represent the reimbursement of certain expenses it incurs on behalf of the owners.

The accounting policies of reportable segments are the same as those described in the summary of significant accounting policies.

The following table sets forth certain segment financial and operating data (dollars in thousands):

   
Three Months Ended September 30,
   
Nine Months Ended September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Revenue(1)
                       
Retirement Centers
  $ 135,664     $ 137,057     $ 405,507     $ 407,830  
Assisted Living
    217,843       211,888       653,052       631,682  
CCRCs
    150,349       131,805       440,985       396,010  
Management Services
    1,987       1,527       5,002       5,604  
    $ 505,843     $ 482,277     $ 1,504,546     $ 1,441,126  
Segment operating income(2)
                               
Retirement Centers
  $ 58,700     $ 55,748     $ 173,948     $ 172,423  
Assisted Living
    73,655       65,900       231,713       214,826  
CCRCs
    42,562       32,888       130,246       110,474  
Management Services
    1,391       1,069       3,501       3,923  
    $ 176,308     $ 155,605     $ 539,408     $ 501,646  
General and administrative (including non-cash stock-based compensation expense)(3)
  $ 34,124     $ 32,490     $ 98,647     $ 107,952  
Facility lease expense
    68,036       67,017       204,211       202,028  
Deprecation and amortization
    66,983       67,066       202,378       207,882  
Income (loss) from operations
  $ 7,165     $ (10,968 )   $ 34,172     $ (16,216 )
                                 
                                 
                   
As of
 
                   
September 30,
2009
   
December 31,
2008
 
Total assets
                               
Retirement Centers
                  $ 1,193,576     $ 1,233,268  
Assisted Living
                    1,273,855       1,393,223  
CCRCs
                    1,666,573       1,476,206  
Corporate and Management     Services
                    367,678       346,561  
                    $ 4,501,682     $ 4,449,258  
 
(1)
All revenue is earned from external third parties in the United States.
(2)
Segment operating income is defined as segment revenues less segment operating expenses (excluding depreciation and amortization).  Included in segment operating income is hurricane and named tropical storms expense of $3.6 million for the three and nine months ended September 30, 2008 consisting of $1.1 million in Retirement Centers, $1.3 million in Assisted Living and $1.2 million in CCRCs.
(3)
Net of general and administrative costs allocated to management services reporting segment.

18.  Subsequent Events

On October 7, 2009, the Company entered into an agreement with another senior housing company to acquire 21 senior living communities for an aggregate purchase price of $204.0 million.  The portfolio has a total of 1,389 units, comprised of 92 independent living units, 876 assisted living units and 421 Alzheimer’s units.  The Company


 
expects to finance the transaction with approximately $134.0 million of mortgage debt (substantially through the assumption of existing debt), with the balance of the purchase price to be paid from cash on hand.  The consummation of the transaction is subject to the satisfaction of certain closing conditions and contingencies and the receipt of certain lender approvals.  The transaction is expected to close in November 2009.

The Company has evaluated all events subsequent to September 30, 2009 through the time of filing on November 4, 2009 and determined that no events other than those noted above have occurred which would require additional disclosure.


 
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995

Certain statements in this Quarterly Report on Form 10-Q and other information we provide from time to time may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Those forward-looking statements include all statements that are not historical statements of fact and those regarding our intent, belief or expectations, including, but not limited to, statements regarding the consummation of the Sunrise portfolio acquisition and the related financing and our expectations regarding the future performance of the acquired communities and their effect on our financial results; statements relating to our operational initiatives and our expectations regarding their effect on our results; our expectations regarding occupancy, revenue, expense levels, the demand for senior housing, expansion activity, acquisition opportunities and asset dispositions; our belief regarding our growth prospects; our ability to secure financing or repay, replace or extend existing debt at or prior to maturity; our ability to remain in compliance with all of our debt and lease agreements (including the financial covenants contained therein); our expectations regarding liquidity; our plans to deleverage; our expectations regarding financings and refinancings of assets; our plans to generate growth organically through occupancy improvements, increases in annual rental rates and the achievement of operating efficiencies and cost savings; our plans to expand our offering of ancillary services (therapy and home health); our plans to expand existing communities; the expected project costs for our expansion program; our expected levels of expenditures and reimbursements (and the timing thereof); our expectations for the performance of our entrance fee communities; our ability to anticipate, manage and address industry trends and their effect on our business; our expectations regarding the payment of dividends; and our ability to increase revenues, earnings, Adjusted EBITDA, Cash From Facility Operations, and/or Facility Operating Income (as such terms are defined herein). Words such as “anticipate(s)”, “expect(s)”, “intend(s)”, “plan(s)”, “target(s)”, “project(s)”, “predict(s)”, “believe(s)”, “may”, “will”, “would”, “could”, “should”, “seek(s)”, “estimate(s)” and similar expressions are intended to identify such forward-looking statements. These statements are based on management’s current expectations and beliefs and are subject to a number of risks and uncertainties that could lead to actual results differing materially from those projected, forecasted or expected. Although we believe that the assumptions underlying the forward-looking statements are reasonable, we can give no assurance that our expectations will be attained. Factors which could have a material adverse effect on our operations and future prospects or which could cause actual results to differ materially from our expectations include, but are not limited to, our ability to satisfy the closing conditions and successfully complete the Sunrise portfolio acquisition; our ability to assume and obtain the mortgage debt financing for the Sunrise portfolio acquisition; the risk associated with the current global economic crisis and its impact upon capital markets and liquidity; our inability to extend (or refinance) debt as it matures or replace our amended credit facility when it matures; the risk that we may not be able to satisfy the conditions precedent to exercising the extension options associated with certain of our debt agreements; events which adversely affect the ability of seniors to afford our monthly resident fees or entrance fees; the conditions of housing markets in certain geographic areas; our ability to generate sufficient cash flow to cover required interest and long-term operating lease payments; the effect of our indebtedness and long-term operating leases on our liquidity; the risk of loss of property pursuant to our mortgage debt and long-term lease obligations; the possibilities that changes in the capital markets, including changes in interest rates and/or credit spreads, or other factors could make financing more expensive or unavailable to us; the risk that we may be required to post additional cash collateral in connection with our interest rate swaps; the risk that continued market deterioration could jeopardize the performance of certain of our counterparties’ obligations; changes in governmental reimbursement programs; our limited operating history on a combined basis; our ability to effectively manage our growth; our ability to maintain consistent quality control; delays in obtaining regulatory approvals; our ability to integrate acquisitions into our operations; competition for the acquisition of assets; our ability to obtain additional capital on terms acceptable to us; a decrease in the overall demand for senior housing; our vulnerability to economic downturns; acts of nature in certain geographic areas; terminations of our resident agreements and vacancies in the living spaces we lease; increased competition for skilled personnel; increased union activity; departure of our key officers; increases in market interest rates; environmental contamination at any of our facilities; failure to comply with existing environmental laws; an adverse determination or resolution of complaints filed against us; the cost and difficulty of complying with increasing and evolving regulation; and other risks detailed from time to time in our filings with the Securities and Exchange Commission, press releases and other communications, including those set forth under “Risk Factors” included in our Annual Report on Form 10-K for the year ended December 31, 2008 and in this Quarterly Report. Such forward-looking statements speak only as of the date of this Quarterly Report. We expressly disclaim any obligation to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations with regard thereto or change in events, conditions or circumstances on which any statement is based.



 
Executive Overview

During the third quarter of 2009, we continued to make progress in implementing the long-term growth objectives outlined in our most recent Annual Report on Form 10-K, in spite of the difficult operating environment.  The following is a summary discussion of our progress during the three and nine months ended September 30, 2009.

Our primary long-term growth objectives are to grow our revenues, Adjusted EBITDA, Cash From Facility Operations and Facility Operating Income primarily through a combination of: (i) organic growth in our core business, including expense control and the realization of economies of scale; (ii) continued expansion of our ancillary services programs (including therapy and home health services); and (iii) expansion of our existing communities.  Additionally, as opportunities arise, we may also grow through the selective acquisition and consolidation of additional communities, asset portfolios, home health agencies and other senior living companies, as well as through the acquisition of the fee interest in communities that we currently lease or manage.

Our operating results for the three and nine months ended September 30, 2009 were favorably impacted by an increase in our total revenues (primarily driven by an increase in average monthly revenue per unit/bed including an increase in our ancillary services revenue) and by the significant cost control measures that were implemented in recent periods.  The difficult operating environment during the first nine months of 2009 has resulted in slightly lower occupancy and diminished growth in the rates we charge our residents.  We responded by controlling our expenses and capital spending, and by increasing the reach of our ancillary services programs.  We also continue to aggressively focus on maintaining and increasing occupancy.

During the first half of the year, we took steps to preserve our liquidity and increase our financial flexibility.  For example, during the second quarter, we completed a public equity offering which yielded $163.7 million of net proceeds, which were primarily used to repay the $125.0 million of indebtedness which was outstanding under our credit facility.  Furthermore, we extended the maturity of a number of mortgage loans and, factoring in contractual extension options, have no mortgage debt maturities until 2011 (other than periodic, scheduled principal payments).  Finally, we took steps to reduce materially our exposure to collateralization requirements associated with interest rate swaps.  As a result of these steps and our operating performance during the nine months ended September 30, 2009, we ended the third quarter with $159.3 million of unrestricted cash and cash equivalents on our condensed consolidated balance sheet.
 
We recently entered into an agreement to acquire 21 senior living communities from affiliates of Sunrise Senior Living, Inc. for an aggregate purchase price of $204.0 million plus customary transaction expenses.  The portfolio has a total of 1,389 units, comprised of 92 independent living units, 876 assisted living units and 421 Alzheimer’s units.  We expect to finance the transaction with approximately $134.0 million of mortgage debt (substantially through the assumption of existing debt), with the balance of the purchase price to be paid from cash on hand.  The consummation of the transaction is subject to the satisfaction of certain closing conditions and contingencies and the receipt of certain lender approvals.  The transaction is expected to close in November 2009.

The tables below present a summary of our operating results and certain other financial metrics for the three and nine months ended September 30, 2009 and 2008 and the amount and percentage of increase or decrease of each applicable item (dollars in millions).

   
Three Months Ended
September 30,
   
Increase
(Decrease)
 
   
2009
   
2008(1)
   
Amount
   
Percent
 
Total revenues
  $ 505.8     $ 482.3     $ 23.5       4.9 %
Net loss
  $ (21.3 )   $ (35.9 )   $ 14.6       40.7 %
Adjusted EBITDA
  $ 85.6     $ 67.4     $ 18.2       27.0 %
Cash From Facility Operations
  $ 48.2     $ 22.5     $ 25.7       114.2 %
Facility Operating Income
  $ 169.2     $ 149.8     $ 19.4       13.0 %

   
Nine Months Ended
September 30,
   
Increase
(Decrease)
 
   
2009
   
2008(1)
   
Amount
   
Percent
 
Total revenues
  $ 1,504.5     $ 1,441.1     $ 63.4       4.4 %
Net loss
  $ (45.5 )   $ (94.5 )   $ 49.0       51.9 %
Adjusted EBITDA
  $ 263.6     $ 227.0     $ 36.6       16.1 %
Cash From Facility Operations
  $ 150.9     $ 97.7     $ 53.2       54.5 %
Facility Operating Income
  $ 519.8     $ 481.2     $ 38.6       8.0 %
________

(1)
The calculation of Adjusted EBITDA and Cash From Facility Operations for the three and nine months ended September 30, 2008 includes hurricane and named tropical storms expense totaling $3.6 million.

 

Adjusted EBITDA and Facility Operating Income are non-GAAP financial measures we use in evaluating our operating performance. Cash From Facility Operations is a non-GAAP financial measure we use in evaluating our liquidity. See “Non-GAAP Financial Measures” below for an explanation of how we define each of these measures, a detailed description of why we believe such measures are useful and the limitations of each measure, a reconciliation of net loss to each of Adjusted EBITDA and Facility Operating Income and a reconciliation of net cash provided by operating activities to Cash From Facility Operations.

Our revenues for the three months ended September 30, 2009 increased to $505.8 million, an increase of $23.5 million, or approximately 4.9%, over our revenues for the three months ended September 30, 2008.  For the nine months ended September 30, 2009, our revenues increased $63.4 million, or approximately 4.4%, to $1,504.5 million over the nine months ended September 30, 2008.  The increase in revenues in the current year period was primarily a result of an increase in the average revenue per unit/bed compared to the prior year period, including growing revenues from our ancillary services programs, partially offset by a decline in occupancy from the prior year period.  Our weighted average occupancy rate for the third quarter of 2009 was 89.0%, compared to 89.7% for the third quarter of 2008.

During the three months ended September 30, 2009, our Adjusted EBITDA, Cash From Facility Operations and Facility Operating Income increased by 27.0%, 114.2% and 13.0%, respectively, when compared to the three months ended September 30, 2008.  During the nine months ended September 30, 2009, our Adjusted EBITDA, Cash From Facility Operations, and Facility Operating Income increased by 16.1%, 54.5% and 8.0%, respectively, when compared to the nine months ended September 30, 2008.

During the three months ended September 30, 2009, we continued to expand our ancillary services offerings.  As of September 30, 2009, we offered therapy services to approximately 35,000 of our units and home health services to approximately 18,800 of our units.   We continue to see positive results from the maturation of previously-opened therapy and home health clinics.  We also expect to continue to expand our ancillary services programs to additional units and to open or acquire additional home health agencies.

During the third quarter of 2009, we opened two expansions with a total of 156 units.  Our expansion program currently has two projects under construction that will add an additional 205 units, which are expected to open in the fourth quarter.  Additionally, we recently opened the 240-unit independent living component of our new entry fee CCRC in the Villages, Florida.  The 72-bed skilled nursing unit will open in the fourth quarter.

We believe that the deteriorating housing market, credit crisis and general economic uncertainty have caused some potential customers (or their adult children) to delay or reconsider moving into our communities, resulting in a decrease in occupancy rates and occupancy levels when compared to the prior year period.  We remain cautious about the economy and the adverse credit and financial markets and their effect on our customers and our business.  In addition, we continue to experience volatility in the entrance fee portion of our business.  The timing of entrance fee sales is subject to a number of different factors (including the ability of potential customers to sell their existing homes) and is also inherently subject to variability (positively or negatively) when measured over the short-term.  These factors also impact our potential independent living customers to a significant extent.  We expect occupancy and entrance fee sales to normalize over the longer term.

Consolidated Results of Operations

Three Months Ended September 30, 2009 and 2008

The following table sets forth, for the periods indicated, statements of operations items and the amount and percentage of increase or decrease of these items. The results of operations for any particular period are not necessarily indicative of results for any future period. The following data should be read in conjunction with our condensed consolidated financial statements and the notes thereto, which are included herein.



(dollars in thousands, except average monthly revenue per unit/bed)

   
Three Months Ended
September 30,
             
   
2009
   
2008
   
Increase
(Decrease)
   
% Increase
(Decrease)
 
                         
Statement of Operations Data:
                       
Revenue
                       
Resident fees
                       
Retirement Centers
  $ 135,664     $ 137,057     $ (1,393 )     (1.0 %)
Assisted Living
    217,843       211,888       5,955       2.8 %
CCRCs
    150,349       131,805       18,544       14.1 %
Total resident fees
    503,856       480,750       23,106       4.8 %
Management fees
    1,987       1,527       460       30.1 %
Total revenue
    505,843       482,277       23,566       4.9 %
Expense
                               
Facility operating expense(1)
                               
Retirement Centers
    76,964       81,309       (4,345 )     (5.3 %)
Assisted Living
    144,188       145,988       (1,800 )     (1.2 %)
CCRCs
    107,787       98,917       8,870       9.0 %
Total facility operating expense
    328,939       326,214       2,725       0.8 %
General and administrative expense
    34,720       32,948       1,772       5.4 %
Facility lease expense
    68,036       67,017       1,019       1.5 %
Depreciation and amortization
    66,983       67,066       (83 )     (0.1 %)
Total operating expense
    498,678       493,245       5,433       1.1 %
Income (loss) from operations
    7,165       (10,968 )     18,133       165.3 %
Interest income
    623       1,383       (760 )     (55.0 %)
Interest expense
                               
Debt
    (30,574 )     (37,599 )     7,025       18.7 %
Amortization of deferred financing costs
    (2,167 )     (3,004 )     837       27.9 %
Change in fair value of derivatives and amortization
    (2,478 )     (8,454 )     5,976       70.7 %
Equity in earnings (loss) of unconsolidated ventures
    42       358       (316 )     (88.3 %)
Loss on extinguishment of debt
    (1,178 )           (1,178 )     (100.0 %)
Other non-operating (expense) income
    (52 )     69       (121 )     (175.4 %)
Loss before income taxes
    (28,619 )     (58,215 )     29,596       50.8 %
Benefit for income taxes
    7,329       22,338       (15,009 )     (67.2 %)
Net loss
  $ (21,290 )   $ (35,877 )   $ 14,587       40.7 %
                                 
Selected Operating and Other Data:
                               
Total number of communities (at end of period)
    547       550       (3 )     (0.5 %)
Total units/beds operated(2)
    52,268       51,933       335       0.6 %
Owned/leased communities units/beds
    47,836       47,640       196       0.4 %
 
 
 
Owned/leased communities occupancy rate (weighted average) (3)
    89.0 %     89.7 %     (0.7 %)     (0.8 %)
Average monthly revenue per unit/bed(4)
  $ 3,987     $ 3,786     $ 201       5.3 %
                                 
Selected Segment Operating and Other Data:
                               
Retirement Centers
                               
Number of communities (period end)
    85       87       (2 )     (2.3 %)
Total units/beds(2)
    15,255       15,710       (455 )     (2.9 %)
Occupancy rate (weighted average)
    89.1 %     90.6 %     (1.5 %)     (1.7 %)
Average monthly revenue per unit/bed(4)
  $ 3,347     $ 3,232     $ 115       3.6 %
Assisted Living
                               
Number of communities (period end)
    405       410       (5 )     (1.2 %)
Total units/beds(2)
    20,804       21,059       (255 )     (1.2 %)
Occupancy rate (weighted average)
    90.7 %