FORM 10-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
[] 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 0-827
EMPIRE STATE BUILDING ASSOCIATES
(Exact name of registrant as specified in its charter)
New York 13-6084254
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
60 East 42nd Street, New York, New York 10165
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 687-8700
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to section 12(g) of the Act:
$33,000,000 of Participations in Partnership Interests
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 reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes [x] No [ ]
An Exhibit Index is located on pages 47 through 48 of this report.
Number of pages (including exhibits) in this filing: 48
PART I
Item 1. Business.
(a) General
Registrant is a partnership which was organized on July 11, 1961.
Registrant holds the tenant's interest in a master operating leasehold of the
Empire State Building (the "Building") and of the land thereunder, located at
350 Fifth Avenue, New York, New York (collectively, the "Property"). The fee
owner of the Property is Trump Empire State Partners.
The master lease (the "Master Lease"), which commenced on December 27,
1961, currently expires on January 5, 2013. The Lease contains three 21-year
renewal options, which have not been exercised. If all of the options are
exercised, the Lease will expire on January 5, 2076. Registrant previously
exercised an option to renew the Lease for the term ending January 5, 2013.
Registrant does not operate the Property. It subleases the Building
to Empire State Building Company (the "Sublessee") pursuant to a net operating
sublease (the "Sublease") with a term and renewal options essentially
coextensive with those contained in the Master Lease. On January 30, 1989,
Sublessee exercised its option to renew the Sublease for the first renewal
term from January 4, 1992 to January 4, 2013.
Registrant's partners are Peter L. Malkin, Thomas N. Keltner, Jr. and
Richard A. Shapiro (individually, a "Partner" and, collectively, the "Partners")
each of whom also acts as an agent for holders of participations in their
respective partnership interests in Registrant (each holder of a participation,
individually, a "Participant" and, collectively, the "Participants").
Sublessee is a partnership in which Peter L. Malkin is a partner. The
partners in Registrant are also members of Wien & Malkin LLP, 60 East 42nd
Street, New York, New York, which provides supervisory and other services to
Registrant and to Sublessee (the "Supervisor"). See Items 10, 11, 12 and 13
hereof for a description of the ongoing services rendered by, and compensation
paid to, Supervisor and for a discussion of certain relationships which may
pose potential conflicts of interest among Registrant, Sublessee and certain
of their respective affiliates.
As of December 31, 1999, the Building was 96.28% occupied by
approximately 800 tenants who engage in various businesses, including the Boy
Scouts, the YMCA, the practice of law and accounting, ladies' and men's apparel,
and ladies' and men's shoes. Registrant does not maintain a full-time staff.
See Item 2 hereof for additional information concerning the Property.
(b) The Lease and Sublease
The annual rent payable by Registrant under the Lease is $1,970,000
from January 5, 1992 through January 5, 2013 and $1,723,750 annually during
the term of each renewal period thereafter.
Sublessee is required to pay annual basic rent (the "Basic Rent")
equal to $6,018,750 from January 5, 1992 through January 4, 2013, and
$5,895,625 from January 5, 2013 through the expiration of all renewal terms.
Sublessee is also required to pay overage rent (the "Overage Rent") equal to
50% of its net operating profit in excess of $1,000,000 in any year.
Overage Rent income is recognized when earned from the Sublessee,
at the close of the year ending December 31; such income is not determinable
until the Sublessee, pursuant to the Sublease, renders to Registrant a certified
report on the Sublessee's operation of the Property. The Sublease requires that
this report be delivered to Registrant annually within 60 days after the end of
each such fiscal year. Accordingly, all Overage Rent income and certain
supervisory services expense are reflected in the fourth quarter of each year.
The Sublease does not provide for the Sublessee to render interim reports to
Registrant. See Note 3 of Notes to Financial Statements filed under Item 8
hereof (the "Notes") regarding Overage Rent payments by Sublessee for the
fiscal years ended December 31, 1999, 1998, and 1997. There was Overage Rent of
$7,582,109 for the year ended December 31, 1999.
(c) Competition
Pursuant to tenant space leases at the Building, the average annual base
rental payable to Sublessee is approximately $37.02 per square foot (exclusive
of electricity charges and escalation). The asking rents for the building range
from $35 to $47 per square foot.
(d) Tenant Leases
Sublessee operates the Building free from any federal, state or local
government restrictions involving rent control or other similar rent regulations
which may be imposed upon residential real estate in Manhattan. Any increase or
decrease in the amount of rent payable by a tenant is governed by the provisions
of the tenant's lease.
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Item 2. Property.
Registrant owns the tenant's interest in a master operating leasehold
on the Building known as the Empire State Building and on the land thereunder
located at 350 Fifth Avenue in New York City. See Item 1 hereof. The Building,
erected in 1931 and containing 102 stories, a concourse and a lower lobby,
occupies the entire blockfront from 33rd Street to 34th Street on Fifth Avenue.
The Building has 72 passenger elevators and 4 freight elevators and is equipped
with air conditioning and individual air handling units. The Building is
subleased to Sublessee under the Sublease which expires on January 4, 2013 and
contains three 21-year renewal options. See Item 1 hereof for a description of
the terms of the Lease and Sublease.
Item 3. Legal Proceedings.
The Property of Registrant is the subject of the following pending
litigation:
Studley v. Empire State Building Associates: On October 21, 1991, in
an action entitled Studley v. Empire State Building Associates et al., the
holder of a $20,000 original participation in Registrant brought suit in New
York Supreme Court, New York County against the Agents for Registrant (Peter
L. Malkin, Donald A. Bettex and Alvin Silverman), in their individual capacities
and Wien, Malkin & Bettex (currently "Wien & Malkin LLP") Supervisor to
Registrant. The suit claimed that the defendants had engaged in breaches of
fiduciary duty and acts of self-dealing in relation to the Agents'
solicitation of consents and authorizations from the participants in
Registrant in September 1991 and in relation to other unrelated acts of the
Agents and the sublessee. By order dated July 14, 1997, and entered July 29,
1997, the Court granted defendants' motion for summary judgment and dismissal
of the action. The Plaintiff filed an appeal with respect to the foregoing
order. By decision and order entered April 2, 1998, the Appellate Court
unanimously affirmed the order dismissing the action. The Plaintiff has
been denied permission to appeal to the New York Court of Appeals. The
Plaintiff has filed a further Complaint alleging similar claims, purportedly
as a class action. Defendants' counsel filed a motion to dismiss the new
complaint based upon the Court's prior rulings and on other grounds. The
Court granted the motion to dismiss the new complaint in its entirety.
Plaintiff's appeal of the dismissal is pending.
Proceedings Involving Trump Empire State Partners: In December 1994,
Registrant received a notice of default from Trump. The Trump default notice
to Registrant claimed that Registrant was in violation of its master lease
because of extensive work which Sublessee had undertaken as part of an
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improvement program that commenced before Trump reportedly acquired its interest
in the property in 1994. Trump's notice also complained that the Building was in
need of repairs. On February 14, 1995, Registrant and Sublessee filed an action
("Action No. 1") in New York State Supreme Court against Trump for a declaratory
judgment that none of the matters set forth in the notice of default constitutes
a violation of the master lease or sublease, and that the notice of default is
entirely without merit. Registrant's and Sublessee's suit also seeks an
injunction to prevent Trump from implementing the notice of default. On March
24, 1995, the Court granted Registrant a preliminary injunction against Trump.
In 1996 the Court granted two additional preliminary injunctions against Trump
with respect to two additional default notices. The preliminary injunctions
prohibit Trump from acting on its notices of default to Registrant at any time,
pending the prosecution of claims by Registrant and Sublessee for a final
declaratory judgment and an injunction and other relief against the Trump
defendants. The Appellate Court has upheld and affirmed the granting of such
preliminary injunctions against the Trump defendants.
On February 15, 1995, Trump filed an action ("Action No. 2") against
Registrant, Sublessee, Supervisor, Harry B. Helmsley, a partner in Sublessee,
Helmsley-Spear, Inc. (the management company of the Empire State Building), and
the Agents for Registrant in New York State Supreme Court, alleging that the
notice of default is valid and seeking damages and related relief based thereon.
On October 24, 1996 the Court dismissed all of Trump's claims in their entirety
against all defendants in Action No. 2. Trump appealed this Order. The
Appellate Court has unanimously affirmed the dismissal of Trump's claims.
In May, 1995, Registrant and Sublessee filed a separate legal action
("Action No. 3") against Trump and various affiliated persons for breach of the
master lease and sublease, and disparagement of the property in violation of
Registrant' and Sublessee's leasehold rights. The action was amended to include
additional claims by Registrant and Sublessee (the "Ownership Claim") seeking a
declaratory judgment that they may act as an owner of the Property for purposes
of making applications and related activities pursuant to the New York City
Building Code. By decision and order dated October 24, 1996, the Court
sustained Registrant's and Sublessee's claims concerning the parties who may
act as owner of the Property under the Building Code, but dismissed Registrant's
and Sublessee's claims against Trump and co-defendants for money damages.
Registrant and Sublessee appealed that portion of the Court's order dismissing
their claims for money damages. The Appellate Court has affirmed that part of
the Court's order dismissing the claims for money damages.
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On March 16, 1999, the New York Supreme Court granted summary judgment
in Action Nos. 1 and 3 in favor of Registrant and the Sublessee and against the
Trump defendants as to most of the alleged lease defaults set forth in the Trump
default notice of December 1994, and as to the two additional Trump default
notices in their entirety and the Ownership Claim. The Appellate Division has
affirmed the summary judgment order.
New York Skyline Inc.: Registrant is a defendant in an action
instituted in the Supreme Court of the State of New York, County of New York,
entitled New York Skyline Inc. v. Empire State Building Company, Empire State
Building Associates, Nell H. Kessner, Helmsley-Spear, Inc. and Stephen A. Tole.
This lawsuit, which was brought by a tenant in the Building and was filed on
December 23, 1997, seeks at least $205,000,000 in damages. In its complaint,
plaintiff-tenant asserts thirteen causes of action (twelve of which are
against Sublessee) in connection with its leases and license agreements of
space in the Building and alleges that it is entitled to, among other things,
specific performance as to its alleged rights under its leases and licensing
agreements with Sublessee, a declaratory judgment as to the rights of the
parties under the leases and licensing agreements, any monies allegedly due
plaintiff under those agreements, as well as injunctive relief and additional
money damages. While the complaint includes Registrant as a named defendant,
it does not allege or identify any agreement between plaintiff and Registrant
or any other basis of liability on Registrant's part to plaintiff. On or about
February 5, 1998, plaintiff served an amended complaint which, among other
things, added Kessner & Cyruli, f/k/a Nell H. Kessner & Associates, former
landlord-tenant counsel for the Building, and Eileen Aluska, a former Helmsley-
Spear, Inc. employee, as party defendants. The amended complaint asserts eleven
causes of action, similar to those asserted in the original complaint. On March
16, 1998, Registrant filed an answer to the amended complaint denying all
allegations of liability. On December 30, 1999 the action was settled and
discontinued without any payment or other contribution by Registrant to the
settlement.
Wien & Malkin LLP, et. al. v. Helmsley-Spear, Inc., et. al. On June
19, 1997 Wien & Malkin LLP and Peter L. Malkin filed an action in the Supreme
Court of the State of New York, against Helmsley-Spear, Inc. and Leona Helmsley
concerning various partnerships which own, lease or operate buildings managed
by Helmsley-Spear, Inc., including Registrant's property. In their complaint,
plaintiffs sought the removal of Helmsley-Spear, Inc. as managing and leasing
agent for all of the buildings. Plaintiffs also sought an order precluding
Leona Helmsley from exercising any partner management powers in the
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partnerships. In August, 1997, the Supreme Court directed that the foregoing
claims proceed to arbitration. As a result, Mr. Malkin and Wien & Malkin LLP
filed an arbitration complaint against Helmsley-Spear, Inc. and Mrs. Helmsley
before the American Arbitration Association. Helmsley-Spear, Inc. and Mrs.
Helmsley served answers denying liability and asserting various affirmative
defenses and counterclaims; and Mr. Malkin and Wien & Malkin LLP filed a reply
denying the counterclaims. By agreement dated December 16, 1997, Mr. Malkin and
Wien & Malkin LLP (each for their own account and not in any representative
capacity) reached a settlement with Mrs. Helmsley of the claims and
counterclaims in the arbitration and litigation between them. Mr. Malkin and
Wien &Malkin LLP are continuing their prosecution of claims in the arbitration
for reliefagainst Helmsley-Spear, Inc., including its termination as the leasing
and managing agent for various entities and properties, including the
Registrant's Sublessee.
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PART II
Item 5. Market for Registrant's Common Equity
and Related Security Holder Matters.
Registrant is a partnership organized pursuant to a partnership agreement
dated as of July 11, 1961.
Registrant has not issued any common stock. The securities registered by
it under the Securities Exchange Act of 1934, as amended, consist of
participations in the partnership interests of the Partners in Registrant (the
"Participations") and are not shares of common stock nor their equivalent. The
Participations represent each Participant's fractional share in a Partner's
undivided interest in Registrant and are divided approximately equally among
the Partners. A full unit of the Participations was offered originally at a
purchase price of $10,000; fractional units were also offered at proportionate
purchase prices. Registrant has not repurchased Participations in the past
and is not likely to change that policy in the future.
(a) The Participations neither are traded on an established
securities market nor are readily tradable on a secondary market or the
substantial equivalent thereof. Based on Registrant's transfer records,
Participations are sold by the holders thereof from time to time in
privately negotiated transactions and, in many instances, Registrant is not
aware of the prices at which such transactions occur. During the past year
there were 188 transfers. In ten instances, the indicated purchase price was
equal to 2.25 times the face amount of the Participation transferred. In two
instances, the indicated purchase price was equal two times the face amount
of the participation transferred. In all other cases, no consideration was
indicated.
(b) As of December 31, 1999, there were 2,634 holders of
Participations of record.
(c) Registrant does not pay dividends. During the year ended
December 31, 1999, Registrant made regular monthly distributions of $98.21
for each $10,000 Participation. There was Overage Rent payable of $7,582,109
for the year ended December 31, 1999 and Registrant made additional
distributions for each $10,000 Participation of $2,006.12 on February 29, 2000.
See Item 1 hereof. There are no restrictions on Registrant's present or future
ability to make distributions; however, the amount of such distributions,
particularly distributions of Overage Rent, depends solely on Sublessee's
ability to make payments of Basic Rent and Overage Rent to Registrant. See
Item 1 hereof. Registrant expects to make monthly distributions in the
future so long as it receives the payments provided for under the Sublease.
See Item 7 hereof.
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[SELECTED FINANCIAL DATA]
Item 6.
EMPIRE STATE BUILDING ASSOCIATES
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Year ended December 31,
1999 1998 1997 1996 1995
<S> <C> <C> <C> <C> <C>
Basic rent income...... $ 6,018,750 $ 6,018,750 $6,018,750 $6,018,750 $6,018,750
Overage rent income.... 7,582,109 4,109,852 2,401,300 0 0
Dividend income........ 144,690 84,615 10,377 8,647 35,556
Total revenues...... 13,745,549 7,507,228 4,752,560 3,689,511 3,716,420
Net income............. $10,901,065 $ 7,507,228 $4,752,560 $3,689,511 $3,716,420
Earnings per $10,000
participation unit,
based on 3,300
participation units
outstanding during
the year...... ........$ 3,303 $ 2,275 $ 1,440 $ 1,118 $ 1,126
Total assets............$13,253,481 $ 8,787,638 $5,930,702 $3,727,494 $3,927,316
Long-term obligations...$ - 0- $ - 0 - $ -0- $ -0- $ -0-
Distributions per $10,000
participation unit, based
on 3,300 participation
units outstanding
during the year:
Income...............$ 2,033 $ 1,500 $ 1,179 $ 1,118 $ 1,126
Return of capital.... - 0 - - 0 - -0- 61 1,089
Total distributions..$ 2,033 $ 1,500 $ 1,179 $ 1,179 $ 2,215
</TABLE>
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Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations.
Registrant was organized solely for the purposes of owning the Property
described in Item 2 hereof subject to the Sublease. Registrant is required to
pay from Basic Rent the amounts due for supervisory services and to distribute
the balance of such rental payments to Participants. Registrant is required to
pay from Overage Rent additional amounts for supervisory services and then to
distribute the balance of such Overage Rent to the Participants. Pursuant to
the Sublease, Sublessee has assumed sole responsibility for the condition,
operation, repair, maintenance and management of the Building. Registrant
need not maintain substantial reserves or otherwise maintain liquid assets
to defray any operating expenses of the Property.
The supervisory services provided to Registrant by Supervisor include
real estate supervisory, legal, administrative and financial services. The
services include, but are not limited to, providing or coordinating with counsel
to Registrant, maintaining all of its partnership records, performing physical
inspections of the Building, reviewing insurance coverage and conducting annual
partnership meetings. Financial services include monthly receipt of rent from
the Sublessee, payment of monthly rent to the fee owner, payment of monthly and
additional distributions to the Participants, payment of all other
disbursements, confirmation of the payment of real estate taxes, and active
review of financial statements submitted to Registrant by the Sublessee and
financial statements audited by and tax information prepared by Registrants'
independent certified public accountant, and distribution of such materials
to the Participants. Supervisor also prepares quarterly, annual and other
periodic filings with the Securities and Exchange Commission and applicable
state authorities and distributes to the Participants quarterly source of
distribution reports.
Registrant's results of operations are affected primarily by the
amount of rent payable to it under the Sublease. The amount of Overage Rent
payable to Registrant is affected by (i) the New York City economy and real
estate rental market and (ii) the cost of the Property improvement program
described herein under Other Information. It is difficult for management to
forecast the New York City economy and real estate market over the next few
years.
As compared with the prior year, a decrease in Overage Rent in any
year reduces the distributions made to the Participants and the expenditure
for supervisory services. Reductions in the amount of Overage Rent paid to
Registrant in the future will not have any other impact on Registrant.
See paragraph 1 of Item 7 hereof and Notes 3, 4, 5, and 7 of the Notes.
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The following summarizes the material factors affecting Registrant's
results of operations for the three preceding years:
(a) Total income increased for the year ended December 31, 1999 as
compared with the year ended December 31, 1998. Such increase resulted from
an increase in Overage Rent in the year 1999 and an increase in dividend
income earned as compared with the year ended December 31, 1998. Total
income increased for the year ended December 31, 1998 as compared with the
year ended December 31, 1997. Such increase resulted from an increase in
Overage Rent in the year 1998 and an increase in dividend income earned as
compared with the year ended December 31, 1997. See Note 3 of the Notes.
(b) Total expenses increased for the year ended December 31, 1999 as
compared with the year ended December 31, 1998. Such increase is the result
of an increase in additional payment for supervisory services. Total expenses
decreased for the year ended December 31, 1998 as compared with the year ended
December 31, 1997. Such decrease was the net result of an increase in
additional payment for supervisory services and a decrease in legal fees. See
Notes 3, 5 and 9 of the Notes.
The State of New York has asserted utility tax deficiencies through
December 31, 1992 in connection with water, steam and non-metered electricity
rent inclusion charges to tenants, plus estimated accrued interest. The
Supreme Court, New York County, granted summary judgment in favor of the State,
which ruling was affirmed by the Appellate Division, First Department, holding
that the State utility tax applies to such inclusion charges. Pursuant to the
terms of the settlement agreement, Sublessee agreed to pay the State's
assessed tax in the sum of $979,109, plus interest of approximately $605,000
through July 31, 1996. The State has agreed to payment of the aforesaid
liability over a period of four years, commencing August, 1996, in equal
monthly installments of $40,000, including interest on the unpaid balance
at the statutory rate. The State has asserted additional tax for the years
1993 through 1995 of $243,270 plus accrued interest of $114,918 through
December 31, 1999. It is anticipated that New York State will seek to
impose liability on Sublessee for State utility tax for periods after
December 31, 1995 through December 31, 1997. The amount of such additional
tax has yet to be determined. The imposition of both New York state and
New York City utility taxes on non-metered electricity rent inclusion
charges was repealed effective January 1, 1998. The City of New York has
asserted a utility tax deficiency in the amount of $277,125 against
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Sublessee, through December 31, 1994 in connection with water, steam and non-
metered electricity rent inclusion charges to tenants, plus accrued interest of
approximately $315,610 through December 31, 1999. Sublessee is contesting the
calculation of the City's proposed utility tax deficiency before the New York
City Tax Appeals Tribunal. The final outcome of Sublessee's appeal cannot
presently be determined. Under a settlement proposed by New York City for
all taxpayers, Sublessee will settle utility taxes for all open years by paying
the tax only for the year 1997. The imposition of New York State and New
York City utility taxes on Sublessee impacts Registrant only to the extent
it reduces Overage Rent payable to Registrant under the Sublease.
Liquidity and Capital Resources
There has been no significant change in Registrant's liquidity or
capital resources for the fiscal year ended December 31, 1999 as compared
with the fiscal year ended December 31, 1998.
Inflation
Inflationary trends in the economy do not directly impact Registrant's
operations. As noted above, Registrant does not actively engage in the
operation of the Property. Inflation may impact the operations of the
Sublessee. The Sublessee is required to pay the Basic Rent regardless of the
results of its operations. Inflation and other operating factors affect the
amount of Overage Rent payable by the Sublessee, which is based on the
Sublessee's net operating profit.
Other Information
The Sublessee maintains the Building as a high-class office building
as required by the terms of the Sublease.
In 1990, the Sublessee commenced its latest improvement program which
is estimated to be completed in 2000 at a total cost of approximately
$68,000,000. Under this program, approximately 6,400 windows are being
replaced and this portion of the program is completed. In addition, the
elevators have been upgraded through installation of a computerized control
system and the replacement of all electrical and mechanical equipment.
The elevator modernization program has increased elevator speed from 800 to
950 feet per minute to 1200 feet per minute. Also included is waterproofing
the Building's exterior, resetting and repairing the limestone facade,
upgrading the Building's security system, upgrading and replacing the Building's
fire safety system and making substantial further improvement to the air-
conditioning, domestic pump and water systems, waterproofing the mooring
mast and installing a new observation deck ticket office.
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The Sublessee anticipates that the costs of improvements to be
incurred will reduce Overage Rent during the year 2000 but should have no
effect on the payment of Basic Rent.
Under Sublessee's management, the Building recently won three
awards from the Building Owners and Management Association ("BOMA")
(BOMA/NY Award 1989; BOMA Middle Atlantic Region Award 1990/91 and the
BOMA International Award for excellence 1992/93). The New York Landmarks
Conservancy recently awarded a Merit Citation to the Building. In 1994,
Metaloptics recognized the Building for excellence in lighting efficiency.
In December 1994, Energy User News, a national publication, awarded a
Certificate of Merit in the lighting category for excellence and innovation
in energy efficiency and management of the Building.
Item 8. Financial Statements and Supplementary Data.
The financial statements, together with the accompanying report by,
and the consent to the use thereof by J.H. Cohn LLP and McGrath, Doyle & Phair,
immediately following, are being filed in response to this item.
Item 9. Disagreements on Accounting and Financial Disclosure.
Not applicable.
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PART III
Item 10.Directors and Executive Officers of Registrant.
Registrant has no directors or officers or any other centralization
of management. There is no specific term of office for any Partner. The
table below sets forth as to each Partner as of December 31, 1999 the following:
name, age, nature of any family relationship with any other Partner, business
experience during the past five years and principal occupation and
employment during such period, including the name and principal business of
any corporation or any organization in which such occupation and employment
was carried on and the date such individual became a Partner:
Principal Date
Nature of Occupation Individual
Family Business and became
Name Age Relationship Experience Employment Partner
Peter L. Malkin 66 None Real Estate Senior Partner 1961
Supervision and Chairman
and Law Wien & Malkin
LLP
Thomas N. Keltner,
Jr. 53 None Real Estate Partner 1998
Supervision Wien & Malkin
and Law LLP
Richard A. Shapiro
54 None Real Estate Partner 1998
Supervision Wien & Malkin
and Law LLP
As stated above, all three of the Partners are members of Supervisor.
See Items 1, 11, 12 and 13 hereof for a description of the services rendered
by, and the compensation paid to, Supervisor and for a discussion of certain
relationships which may pose actual or potential conflicts of interest among
Registrant, Sublessee and certain of their respective affiliates.
The names of entities which have a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934 or are subject
to the requirements of Section 15(d) of that Act, and in which the Partners
are either a director, joint venturer or general partner are as follows:
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Peter L. Malkin is a joint venturer in 250 West 57th St. Associates and
Navarre-500 Building Associates and a general partner in Garment Capitol
Associates and 60 East 42nd St. Associates.
Thomas N. Keltner, Jr. is a joint venturer in Navarre-500 Building
Associates; and a general partner in Garment Capitol Associates and 60 East
42nd St. Associates.
Richard A. Shapiro is a general partner in Garment Capitol Associates and
60 East 42nd St. Associates.
Item 11.Executive Compensation.
As stated in Item 10 hereof, Registrant has no directors or officers
or any other centralization of management.
No remuneration was paid during the current fiscal year ended December
31, 1999 by Registrant to any of the Partners as such. Registrant pays
Supervisor, for supervisory services and disbursements, fees of $100,000 per
annum plus 6% of all sums distributed to the Participants in excess of 9% per
annum on their original cash investment. Pursuant to such arrangements
described herein, Registrant paid Supervisor a total of $581,983 (consisting
of $100,000 as an annual basic payment for supervisory services and $481,983
as an additional payment for supervisory services) for supervisory services
rendered during the fiscal year ended December 31, 1999. The supervisory
services include, among other items, the preparation of certain reports
required by the Securities and Exchange Commission, the monitoring or
coordination of certain other areas of legal compliance, the preparation of
certain financial reports, as well as the supervision of accounting and other
documentation related to the administration of Registrant's business. See
Item 7 hereof. Out of its fees, Supervisor paid all disbursements and costs
of regular accounting services. As noted in Items 1 and 10 of this report,
the Partners are also members of Supervisor.
Item 12. Security Ownership of Certain Beneficial Owners
and Management.
(a) Registrant has no voting securities. See Item 5 hereof. At
December 31, 1999, no person owned of record or was known by Registrant to
own beneficially more than 5% of the outstanding Participations.
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(b) At December 31, 1999, the Partners (see Item 10 hereof)
beneficially owned, directly or indirectly, the following Participations:
Name & Address Amount of
of Beneficial Beneficial Percent
Title of Class Owners Ownership of Class
Participations Thomas N. Keltner, Jr. $ 5,000 .0152%
in Partnership 60 East 42nd Street
Interests New York, NY 10165
Richard A. Shapiro $ 5,000 .0152%
60 East 42nd Street
New York, NY 10165
At such date, certain of the Partners (or their respective spouses)
held additional Participations as follows:
Richard A. Shapiro owned of record as custodian but not beneficially
$12,500 of Participations. Mr. Shapiro disclaims any beneficial
ownership of such Participations.
Peter L. Malkin owned of record as trustee or co-trustee but not
beneficially, $255,000 of Participations. Mr. Malkin disclaims any
beneficial ownership of such Participations.
Entities for the benefit of members of Peter L. Malkin's family owned of
record and beneficially $546,250 of Participations. Mr. Malkin
disclaims any beneficial ownership of such Participations, except that
related Trusts are required to complete scheduled payments to Mr.
Malkin.
(c) Not applicable.
Item 13. Certain Relationships and Related Transactions.
(a) As stated in Item 1 hereof, Mr. Peter L. Malkin, Mr. Keltner and
Mr. Shapiro are the three Partners of Registrant and also act as agents for the
Participants in their respective partnership interests. Mr. Malkin is also a
partner in Sublessee. As a consequence of one of the three Partners being a
partner in Sublessee, and all of the Partners being current members of
Supervisor (which supervises Registrant and Sublessee), certain actual and
potential conflicts of interest may arise with respect to the management and
administration of the business of Registrant. However, under the respective
participating agreements pursuant to which the Partners act as agents for
the Participants, certain transactions require the prior consent from
Participants owning a specified interest under the agreement in order for
the agents to act on their behalf. Such transactions include modifications
and extensions of the Sublease, or a sale or other disposition of the Property
or substantially all of Registrant's other assets.
-15-
Reference is made to Items 1 and 2 hereof for a description of the
terms of the Sublease between Registrant and Sublessee. The respective
interests of the Partners in Registrant and in the Sublease arise solely from
ownership of their respective participations in Registrant and, in the case of
Mr. Malkin, his ownership of a partnership interest in Sublessee. The
Partners receive no extra or special benefit not shared on a pro rata basis
with all other security holders of Registrant or partners in Sublessee.
However, the Partners, by reason of their respective interest in Supervisor,
are entitled to receive their pro rata share of any supervisory, service,
legal or other remuneration paid to Supervisor for services rendered to
Registrant and Sublessee. See Item 11 hereof for a description of the
remuneration arrangements between Registrant and Supervisor relating to
supervisory services provided by Supervisor.
Reference is also made to Items 1 and 10 hereof for a description of
the relationship between Registrant and Supervisor, of which two of the
Partners are among its current members. The interest of each Partner in any
remuneration paid or given by Registrant to Supervisor arise solely from the
ownership of such Partner's interest in Supervisor. See Item 11 hereof for
a description of the remuneration arrangements between Registrant and
Supervisor relating to supervisory services provided by Supervisor.
(b) Reference is made to Paragraph (a) above.
(c) Not applicable.
(d) Not applicable.
-16-
PART IV
Item 14. Exhibits, Financial Statement Schedules and
Reports on Form 8-K.
(a)(1) Financial Statements:
Consent of J.H. Cohn LLP, Certified Public Accountants, dated February 23,
2000.
Accountant's Report of J.H. Cohn LLP, Certified Public Accountants, dated
February 23, 2000.
Balance Sheets at December 31, 1999 and at December 31, 1998 (Exhibit A).
Statements of Income for the fiscal years ended December 31, 1999, 1998,
and 1997 (Exhibit B).
Statement of Partners' Capital for the fiscal year ended December 31, 1999
(Exhibit C-1).
Statement of Partners' Capital for the fiscal year ended December 31, 1998
(Exhibit C-2).
Statement of Partners' Capital for the fiscal year ended December 31, 1997
(Exhibit C-3).
Statements of Cash Flows for the fiscal years ended December 31, 1999,
1998, and 1997 (Exhibit D).
Notes to Financial Statements for the fiscal years ended December 31, 1999,
1998, and 1997.
Consent of McGrath, Doyle & Phair, Certified Public Accountnats, dated
March 16, 2000.
Accountant's Comparative Combined Statement of Income (Subleasee) of McGrath,
Doyle & Phair, Certified Public Accountants, dated March 16, 2000.
(2) Financial Statement Schedules:
List of Omitted Schedules.
Real Estate and Accumulated Depreciation - December 31, 1999 (Schedule
III).
(3) Exhibits: See Exhibit Index.
(b) No Form 8-K was filed by Registrant for the final quarter of 1999.
-17-
[LETTERHEARD OF J.H. COHN LLP
ACCOUNTANTS & CONSULTANTS]
February 23, 2000
Empire State Building Associates
New York, N. Y.
We consent to the use of our independent accountants' report dated February 23,
2000 covering our audits of the accompanying financial statements of Empire
State Building Associates in connection with and as part of your December 31,
1999 annual report (Form 10-K) to the Securities and Exchange Commission.
J.H. Cohn LLP
New York, N.Y.
-18-
INDEPENDENT ACCOUNTANTS' REPORT
To the participants in Empire State Building Associates
(a Partnership)
New York, N. Y.
We have audited the accompanying balance sheets of Empire State Building
Associates ("Associates") as of December 31, 1999 and 1998, and the related
statements of income, partners' capital and cash flows for each of the three
years in the period ended December 31, 1999, and the supporting financial
statement schedule as contained in Item 14(a)(2) of this Form 10-K. These
financial statements and schedule are the responsibility of Associates'
management. Our responsibility is to express an opinion on these financial
statements and financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Empire State Building
Associates as of December 31, 1999 and 1998, and the results of its operations
and its cash flows for each of the three years in the period ended December 31,
1999 in conformity with generally accepted accounting principles, and the
related financial statement schedule, when considered in relation to the basic
financial statements, presents fairly, in all material respects, the information
set forth therein.
As discussed in Note 9 to the financial statements, Associates has been included
as a defendant in actions with other related parties, including the Agents for
Associates and Empire State Building Company, the sublessee.
J.H. Cohn LLP
New York, N. Y.
February 23, 2000
-19-
EXHIBIT A
EMPIRE STATE BUILDING ASSOCIATES
BALANCE SHEETS
A S S E T S
<TABLE>
<CAPTION>
December 31,
1999 1998
<S> <C> <C>
Current assets:
Cash and cash equivalents (Note 12):
The Chase Manhattan Bank....................... $ 4,249 $ 4,525
Distribution account held by
Wien & Malkin LLP............................. 324,111 324,111
Fidelity U.S. Treasury Income Portfolio........ 9,209,075 4,906,745
9,537,435 5,235,381
Additional rent due from Empire State
Building Company, a related party............... 982,109 609,852
Prepaid rent..................................... 23,831 23,831
TOTAL CURRENT ASSETS....................... 10,543,375 5,869,064
Real estate (Note 2):
Leasehold on Empire State Building,
350 Fifth Avenue, New York, N. Y................ 39,000,000 39,000,000
Less: Accumulated amortization................ 36,289,894 36,081,426
2,710,106 2,918,574
TOTAL ASSETS............................... $13,253,481 $ 8,787,638
LIABILITIES AND PARTNERS' CAPITAL
Current liabilities:
Accrued legal fees, to a related party (Note 10). $ 1,491,886 $ 1,460,341
Accrued supervisory services, to a related party
(Note 5) ...................................... 422,566 180,000
TOTAL LIABILITIES.......................... 1,914,452 1,640,341
Contingencies (Notes 9 and 11).....................
Partners' capital (Exhibit C)..................... 11,339,029 7,147,297
TOTAL LIABILITIES AND PARTNERS' CAPITAL... $13,253,481 $ 8,787,638
</TABLE>
See accompanying notes to financial statements.
-20-
EXHIBIT B
EMPIRE STATE BUILDING ASSOCIATES
STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Year ended December 31,
1999 1998 1997
<S> <C> <C> <C>
Revenues:
Rent income, from a related party
(Note 3)............................ $13,600,859 $10,128,602 $8,420,050
Dividend income........................ 144,690 84,615 10,377
13,745,549 10,213,217 8,430,427
Expenses:
Leasehold rent (Note 4)............... 1,970,000 1,970,000 1,970,000
Supervisory services, to a related
party (Note 5)......................... 581,983 339,417 227,161
Legal fees, to a related party (Note 10). 84,033 188,104 1,272,237
Amortization of leasehold (Note 2)...... 208,468 208,468 208,469
2,844,484 2,705,989 3,677,867
NET INCOME, CARRIED TO PARTNERS'
CAPITAL (NOTE 8)................ $10,901,065 $ 7,507,228 $4,752,560
Earnings per $10,000 participation unit, based
on 3,300 participation units outstanding
during each year.................... $ 3,303 $ 2,275 $ 1,440
</TABLE>
See accompanying notes to financial statements.
-21-
EXHIBIT C-1
EMPIRE STATE BUILDING ASSOCIATES
STATEMENT OF PARTNERS' CAPITAL
YEAR ENDED DECEMBER 31, 1999
<TABLE>
<CAPTION>
Capital Capital
January 1, Share of December 31,
1999 net income Distributions 1999
<S> <C> <C> <C> <C>
Richard A. Shapiro Group.. $2,382,433 $ 3,633,688 $2,236,444 $ 3,779,677
Thomas N. Keltner Group... 2,382,432 3,633,689 2,236,445 3,779,676
Peter L. Malkin Group.... 2,382,432 3,633,688 2,236,444 3,779,676
$7,147,297 $10,901,065 $6,709,333 $11,339,029
</TABLE>
See accompanying notes to financial statements.
-22-
EXHIBIT C-2
EMPIRE STATE BUILDING ASSOCIATES
STATEMENT OF PARTNERS' CAPITAL
YEAR ENDED DECEMBER 31, 1998
<TABLE>
<CAPTION>
Capital Capital
January 1, Share of December 31,
1998 net income Distributions 1998
<S> <C> <C> <C> <C>
Richard A. Shapiro Group
(formerly
John L. Loehr Group).... $1,530,241 $2,502,409 $1,650,217 $2,382,433
Thomas N. Keltner Group
(formerly Stanley
Katzman Group).......... 1,530,240 2,502,410 1,650,218 2,382,432
Peter L. Malkin Group..... 1,530,240 2,502,409 1,650,217 2,382,432
$4,590,721 $7,507,228 $4,950,652 $7,147,297
</TABLE>
See accompanying notes to financial statements.
-23-
EXHIBIT C-3
EMPIRE STATE BUILDING ASSOCIATES
STATEMENT OF PARTNERS' CAPITAL
YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
Capital Capital
January 1, Share of December 31,
1997 net income Distributions 1997
<S> <C> <C> <C> <C>
John L. Loehr Group...$1,242,498 $1,584,187 $1,296,444 $1,530,241
Stanley Katzman Group..1,242,498 1,584,187 1,296,445 1,530,240
Peter L. Malkin Group..1,242,498 1,584,186 1,296,444 1,530,240
$3,727,494 $4,752,560 $3,889,333 $4,590,721
</TABLE>
See accompanying notes to financial statements.
-24-
EXHIBIT D
EMPIRE STATE BUILDING ASSOCIATES
STATEMENTS OF CASH FLOWS
Year ended December 31,
1999 1998 1997
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Cash flows from operating activities:
Net income.......................... $10,901,065 $ 7,507,228 $ 4,752,560
Adjustments to reconcile net income to net
cash provided by operating activities:
Amortization of leasehold............ 208,468 208,468 208,469
Changes in operating assets
and liabilities:
Additional rent due from Empire State
Building Company, a related party.. (372,257) (608,552) (1,300)
Accrued supervisory services,
to a related party.................. 242,566 112,256 67,744
Accrued legal fees, to a related
party............................. 31,545 188,104 1,272,237
Net cash provided by
operating activities........... 11,011,387 7,407,504 6,299,710
Cash flows from financing activities:
Cash distributions.................... (6,709,333) (4,950,652) (3,889,333)
Net cash used in financing
activities..................... (6,709,333) (4,950,652) (3,889,333)
Net increase in cash
and cash equivalents........... 4,302,054 2,456,852 2,410,377
Cash and cash equivalents, beginning of
year................................ 5,235,381 2,778,529 368,152
CASH AND CASH EQUIVALENTS, END OF YEAR. $ 9,537,435 $ 5,235,381 $ 2,778,529
</TABLE>
See accompanying notes to financial statements.
-25-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
1. Business Activity
Empire State Building Associates ("Associates") is a general partnership which
holds the tenant's position in the master leasehold of the Empire State
Building (the "Building"), located at 350 Fifth Avenue, New York City.
Associates subleases the property to Empire State Building Company ("Company").
2. Summary of Significant Accounting Policies
a. Cash and Cash Equivalents:
Cash and cash equivalents include investments in money market funds
and all highly liquid debt instruments purchased with a maturity of
three months or less.
b. Real Estate and Amortization of Leasehold:
Real estate, consisting of a leasehold, is stated at cost. Amortization
of the leasehold is being computed through its first renewal term by the
straight-line method over its estimated useful life of 25 years, from
January 1, 1988 to January 5, 2013 (see Note 4).
c. Use of Estimates:
In preparing financial statements in conformity with generally accepted
accounting principles, management makes estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosures of
contingent assets and liabilities at the date of the financial statements,
as well as the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
3. Related Party Transactions - Rent Income
Rent income for the years ended December 31, 1999, 1998 and 1997 totalling
$13,600,859, $10,128,602 and $8,420,050, respectively, consists of the
minimum annual rent plus additional rent under an operating sublease dated
December 27, 1961, as modified February 15, 1965, with Company (the
"Sublessee"), as follows:
Year ended December 31,
1999 1998 1997
Minimum net basic rent...... $ 6,018,750 $6,018,750 $ 6,018,750
Additional rent earned...... 7,582,109 4,109,852 2,401,300
$13,600,859 $10,128,602 $ 8,420,050
-26-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
3. Related Party Transactions - Rent Income (continued)
The sublease provides for the same initial term and renewal options as the
leasehold (see Note 4), less one day. In January 1989, the Sublessee
exercised its option to renew the sublease for the first renewal period
from January 4, 1992 to January 4, 2013. The annual minimum net basic
rent during the first renewal term was reduced to $6,018,750, and is to be
further reduced to $5,895,625 during each of three remaining renewal
terms.
Additional rent earned is equal to fifty percent of the Sublessee's annual
net income (as defined in the sublease) in excess of $1,000,000.
A partner in Associates is also a partner in the Sublessee.
4. Leasehold Rent
Leasehold rent represents the net basic rent of $1,970,000 per annum under
an operating lease dated December 27, 1961, as modified February 15, 1965,
with The Prudential Insurance Company of America ("Prudential").
Associates exercised its first renewal option in 1988, and the current
leasehold rent remains unchanged throughout the first renewal term of the
lease, which ends on January 5, 2013.
The lease contains options for Associates to renew the leasehold for an
additional 3 successive periods of 21 years each. The basic rent is to be
further reduced to $1,723,750 per annum during each of the remaining three
renewal terms.
On November 27, 1991, Prudential sold the property to E.G. Holding Co.,
Inc. which, through merger and conveyance, transferred its interest as
lessor to Trump Empire State Partners (see Note 9b). Associates' rights
under the master leasehold remain unchanged.
5. Related Party Transactions - Supervisory Services
Supervisory services (including disbursements and cost of regular
accounting services) during the years ended December 31, 1999, 1998 and
1997, totalling $581,983, $339,417 and $227,161, respectively, represent
fees incurred by the firm of Wien & Malkin LLP. Some members of that firm
are partners in Associates.
Fees for supervisory services are paid pursuant to an agreement, which
amount is based on a rate of return of investment achieved by the
participants in Associates each year.
-27-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
6. Number of Participants
There were approximately 2,620 participants in the participating groups at
December 31, 1999, 1998 and 1997.
7. Determination of Distributions to Participants
Distributions to participants in 1999, 1998 and 1997 of $6,709,333, $4,950,652
and $3,889,333, respectively, represented the following:
<TABLE>
<CAPTION>
1999 1998 1997
<S> <C> <C> <C> <C> <C> <C>
Minimum annual rent.. $6,018,750 $6,018,750 $6,018,750
Additional rent,
earned in
previous year,
distributed in
current year........ 4,109,852 2,401,300 -
Dividend income
earned in previous
year, distributed
in current year...... 84,615 10,377 -
10,213,217 8,430,427 6,018,750
Less:
Leasehold rent
expense.......... $1,970,000 $1,970,000 $1,970,000
Supervisory
services incurred
in previous year. 339,417 227,161 159,417
Legal fees incurred
in previous year. 188,104 1,272,237 -
Amount held in
reserve to fund
payment of accrued
legal fees....... 1,006,363 10,377 -
3,503,884 3,479,775 2,129,417
Distributions
to participants..... $6,709,333 $4,950,652 $3,889,333
</TABLE>
-28-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
8. Distributions and Amount of Income per $10,000 Participation Unit
Distributions per $10,000 participation unit during the years 1999, 1998
and 1997 based on 3,300 participation units outstanding during each year,
consisted of the following:
Year ended December 31,
1999 1998 1997
Income........................ $2,033 $1,500 $1,179
Return of capital............. - - -
TOTAL DISTRIBUTIONS....... $2,033 $1,500 $1,179
Net income is computed without regard to income tax expense since
Associates does not itself pay a tax on its income; instead, any such
taxes are paid by the participants in their individual capacities.
9. Litigation and Subsequent Events
a. On October 21, 1991, in an action entitled Studley v. Empire State
Building Associates et al., the holder of a $20,000 original
participation in Associates brought suit in New York Supreme Court,
New York County against the Agents for Associates (Peter L. Malkin,
Donald A. Bettex and Alvin Silverman), in their individual capacities
and Wien, Malkin & Bettex (currently "Wien & Malkin LLP"), supervisor
to Associates. The suit claims that the defendants had engaged in
breaches of fiduciary duty and acts of self-dealing in relation to the
Agents' solicitation of consents and authorizations from the
participants in Associates in September 1991 and in relation to other
unrelated acts of the Agents and the Sublessee. By order dated July
14, 1997, the Court granted defendants' application for summary
judgment and dismissal of the action. The Plaintiff applied for
permission to appeal the Appellate Divisions determination to the New
York Court of Appeals, and that application was denied by both the
Appellate Division and the Court of Appeals. Thereafter, the
Plaintiff filed a second complaint, which alleges claims similar to
those asserted in the previously dismissed complaint. The defendants
applied for dismissal of the second complaint based on the prior
dismissal orders and on other grounds. The Court dismissed the second
complaint, and Plaintiff has appealed that dismissal to the Appellate
Division. It is not possible at this time to predict the outcome or
range of potential loss, if any, which might result from this action.
No provision for any liability that may result upon adjudication has
been made in the accompanying financial statements.
-29-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
9. Litigation and Subsequent Events (continued)
b. In December 1994, Associates received a notice of default from Trump
Empire State Partners ("Trump"). The Trump default notice to
Associates claims that Associates was in violation of its master lease
because of extensive work which Company, the Sublessee, had undertaken
as part of an improvement program that commenced before Trump
reportedly acquired its interest in the property in 1994. Trump's
notice also complains that the Building is in need of repairs. On
February 14, 1995, Associates and Company filed an action (the
"Action") in New York State Supreme Court against Trump for a
declaratory judgment that none of the matters set forth in the notice
of default constitutes a violation of the master lease or sublease,
and that the notice of default is entirely without merit. Associates'
and Company's suit also seeks an injunction to prevent Trump from
implementing the notice of default ("Notice I"). On March 24, 1995,
the Court granted Associates a preliminary injunction against Trump.
In 1996 the Court granted two additional injunctions against Trump
with respect to two additional default notices ("Notices II and III").
The preliminary injunctions prohibit Trump from acting on its notices
of default to Associates at any time, pending the prosecution of
claims by Associates and Company for a final declaratory judgment and
an injunction and other relief against the Trump defendants. The
Appellate Court has upheld and affirmed the granting of such
preliminary injunctions against the Trump defendants.
On June 5, 1998 Company and Associates filed a motion for summary
judgment in the Action in a companion action (the "Companion Action")
entitled Empire State Building Associates and Empire State Building
Company v. Donald Trump et. al., in which plaintiffs seek related
declaratory and injunctive relief against Trump and its affiliates
with respect to plaintiffs' rights to act as owner of the Building in
dealings with the New York City Department of Buildings.
In a decision and order dated March 10, 1999, the Court awarded
partial summary judgment to Associates and Company in the Action,
declaring that Notices II and III were invalid and of no force and
effect, and further declaring that there was no legal or factual basis
for many of the defaults alleged in Notice I. The Court also awarded
summary judgment to Associates in the Companion Action, declaring that
Associates is entitled to act as "owner" of the Building for purposes
of dealing with the New York City Department of Buildings and
enjoining Trump from interfering with such right.
In May 1999, plaintiffs renewed their motion for summary judgment in
the Action. At that time, the Trump defendants also filed notices of
appeal from the Court's March 10, 1999 decision and order in the
Action and Companion Action.
In a further decision dated December 16, 1999 and entered as final
judgment on January 12, 2000, the Court granted plaintiffs' renewed
motion for summary judgment in the Action, declaring that the
remaining claims of default asserted by Trump were without merit and
that plaintiffs were not in default under the master lease.
-30-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
9. Litigation and Subsequent Events (continued)
On January 31, 2000, the Trump defendants filed a notice of appeal
from the January 12, 2000 final judgment entered in the Action. No
briefing or other proceedings have yet taken place at the appellate
level.
Plaintiffs intend to challenge any future claims of default by Trump
and, if appropriate, to renew their motion for summary judgment. No
provision for any liability that may result upon adjudication has been
made in the accompanying financial statements.
10. Related Party Transactions - Legal Fees
The accompanying statements of income reflect legal fees paid or owed to
Wien & Malkin LLP, a related party (Note 5), as follows:
1999 1998 1997
Reimbursement owing to Agents
of their legal and accounting
expenses relating to Studley
and Trump Suits (Note 9) $39,670 $179,979 $1,272,237
Other payments made or accrued 44,363 8,125 -
$84,033 $188,104 $1,272,237
The reimbursement owing to Agents of their legal and accounting expenses
relating to the Studley and Trump Suits consisted of the following:
1999 1998 1997
Studley Suit:
Advances by Wien & Malkin LLP,
to third party professional firms $39,670 $179,979 $647,761
Accumulated professional time of
Wien & Malkin LLP - - 312,304
Trump Suits:
Accumulated professional time of
Wien & Malkin LLP - - 312,172
$39,670 $179,979 $1,272,237
-31-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
10. Related Party Transactions - Legal Fees (continued)
Counsel advises that substantial additional legal and accounting costs may
be incurred in both suits.
The determination of the allocable share of the net legal and accounting
costs and disbursements accrued by Associates that are chargeable to
Company involve complex issues of fact and law. Therefore, although
Associates may be entitled to indemnification from Company, because of
uncertainties concerning these issues, amounts for professional fees to be
reimbursed to Associates cannot be estimated, and consequently, have not
been provided for in the accompanying financial statements.
11. Contingencies
Wien & Malkin LLP and Peter L. Malkin are engaged in a dispute with
Helmsley-Spear, Inc., the building manager of the Empire State Building,
concerning the management, leasing and supervision of the property being
net leased to the Sublessee. In this connection, certain legal and
professional fees and other expenses have been paid and incurred and
additional costs are expected to be incurred. Associates' allocable share
of such costs cannot as yet be determined. Accordingly, Associates has
not provided for the expense and related liability with respect to such
costs in the accompanying financial statements.
12. Concentration of Credit Risk
Associates maintains cash balances in a bank, money market funds (Fidelity
U.S. Treasury Income Portfolio) and a distribution account held by Wien &
Malkin LLP. The bank balance is insured by the Federal Deposit Insurance
Corporation up to $100,000, and at December 31, 1999 was completely
insured. The cash in the money market funds and the account held by Wien
& Malkin LLP are not insured. The funds held in the distribution account
were paid to the participants on January 1, 2000.
-32-
EMPIRE STATE BUILDING ASSOCIATES
OMITTED SCHEDULES
The following schedules have been omitted as not applicable in the present
instance:
SCHEDULE I - Condensed financial information of registrant.
SCHEDULE II - Valuation and qualifying accounts.
SCHEDULE IV - Mortgage loans on real estate.
-33-
SCHEDULE III
EMPIRE STATE BUILDING ASSOCIATES
Real Estate and Accumulated Depreciation
December 31, 1999
<TABLE>
<CAPTION>
<S> <C> <C>
Column
A Description Leasehold on Empire State Building
located at 350 Fifth Avenue,
New York, New York.
B Encumbrances............................................. None
C Initial cost to company
Leasehold.............................................. $39,000,000
D Cost capitalized subsequent to acquisition............... None
E Gross amount at which carried at
close of period
Leasehold............................................. $39,000,000(a)
F Accumulated amortization................................ $36,289,894(b)
G Date of construction 1931
H Date acquired December 27, 1961
I Life on which leasehold amortization in
latest income statements is computed 25 years from January 1, 1988 (see
Note 2 of Notes to Financial
Statements).
</TABLE>
(a) There have been no changes in the carrying values of real estate for the
years ended December 31, 1999, December 31, 1998 and December 31, 1997. The
costs for federal income tax purposes are the same as for financial statement
purposes.
(b) Accumulated amortization
Balance at January 1, 1997 $35,664,489
Amortization:
F/Y/E 12/31/97 $208,469
12/31/98 208,468
12/31/99 208,468 625,405
Balance at December 31, 1999 $36,289,894
-34-
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
The individual signing this report on behalf of Registrant is Attorney-
in-Fact for Registrant and each of the Partners in Registrant, pursuant to
Powers of Attorney, dated August 6, 1996 and May 14, 1998 (collectively,
the "Power").
EMPIRE STATE BUILDING REGISTRANT
(Registrant)
By /s/Stanley Katzman
Stanley Katzman, Attorney-in-Fact
Date: April 14, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following person as Attorney-in-Fact
for each of the Partners in Registrant, pursuant to the Power, on behalf of
Registrant and as a Partner in Registrant on the date indicated.
By /s/ Stanley Katzman
Stanley Katzman, Attorney-in-Fact*
Date: April 14, 2000
_________________________________
* Mr. Katzman supervises accounting functions for Registrant.
-35-
[LETTERHEAD OF MCGRATH, DOYLE & PHAIR
CERTIFIED PUBLIC ACCOUNTANTS]
March 16, 2000
Empire State Building Company
New York, N.Y.
We consent to the use of our independent accountants' report dated
March 16, 2000 covering our audits of the Comparative Combined
Statement of Income of Empire State Building and Observatory in
connection with and as part of your December 31, 1999 annual
report (Form 10-K) to the Securities and Exchange Commission.
McGrath, Doyle & Phair
New York, N.Y.
-36-
[LETTERHEAD OF MCGRATH, DOYLE & PHAIR
CERTIFIED PUBLIC ACCOUNTANTS]
Empire State Building Company
60 East 42nd Street
New York, NY 10165
We have audited the accompanying Comparative Combined Statement
of Income of Empire State Building and Observatory for the years ended
December 31, 1999 and 1998 for the purpose of determining "Net Operating
Profit" and "Overage Rent" as those terms are defined in Section 2.05 of
Agreement of Sublease dated December 27, 1961. During the years ended
December 31, 1999 and 1998, the entire building, with the exception of
the Observatory, was operated by Empire State Building Company and the
Observatory was operated by Empire State Building, Inc. The Combined
Statement of Income is the responsibility of the management of Empire
State Building Company and Empire State Building, Inc. Our responsibility
is to express an opinion on the Combined Statement of Income based on our
audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the Combined Statement of Income
is free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the statement.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
presentation of the Combined Statement of Income. We believe that our audit
provides a reasonable basis for our opinion.
In our opinion, the accompanying Comparative Combined Statement of
Income of Empire State Building and Observatory presents fairly, in all
material respects, the Net Operating Profit and Overage Rent for the years
ended December 31, 1999 and 1998, in conformity with Section 2.05 of the
aforementioned Agreement dated December 27, 1961.
As discussed in Note 2 to the Combined Statement of Income, the
Empire State Building Company and other related parties have been named as
defendants in legal actions. All defendants have denied all material
allegations. It is not possible at this time to predict the outcome or
range of potential loss, if any, which might result from those actions. No
provision for any loss has been made in the accompanying Combined Statement
of Income.
McGrath, Doyle & Phair
New York, NY
March 16, 2000
-37-
Empire State Building and Observatory
COMPARATIVE COMBINED STATEMENT OF INCOME
Increase
1999 1998 (Decrease)
INCOME
Rent, including electricity $59,755,165 55,110,840 $4,644,325
Observatory admissions 18,420,734 17,803,746 616,988
Other observatory income 1,149,970 1,228,170 (78,200)
Antenna rent 5,334,395 5,348,547 (14,152)
Lease cancellation 0 19,184 (19,184)
Percentage rent 691,441 676,098 15,343
Net credit on water charges (Note 4) 0 366,094 (366,094)
Other 840,707 739,511 101,196
Total income 86,192,412 81,292,190 4,900,222
OPERATING EXPENSES
Rent 6,018,750 6,018,750 0
Real estate taxes 19,542,337 19,367,733 174,604
Wages, contract cleaning and protection ser 12,625,802 12,386,259 239,543
Electricity 5,101,519 4,857,861 243,658
Tenants' and building alterations, repairs 10,555,096 11,157,243 (602,147)
Management fees and leasing commissions 2,872,316 3,252,369 (380,053)
Observatory:
Wages 1,863,183 1,786,158 77,025
Contracted labor 2,179,869 2,212,386 (32,517)
Advertising and public relations 187,103 379,065 (191,962)
Payroll taxes and other labor cost 656,856 656,879 (23)
Other taxes and expenses 188,767 247,833 (59,066)
Steam 1,172,078 1,205,017 (32,939)
Professional fees (Note 1) 1,423,216 2,474,890 (1,051,674)
Payroll taxes and other labor costs 3,560,811 2,980,013 580,798
Insurance 334,288 540,241 (205,953)
Water (Note 4) 453,032 0 453,032
Rubbish removal 189,003 399,546 (210,543)
Advertising 430,427 339,632 90,795
Telephone 56,730 84,702 (27,972)
Sprinkler alarm service 102,558 63,618 38,940
Directory service 17,235 9,219 8,016
Interest on NYS utility tax (Note 3) 50,192 340,453 (290,261)
Utility taxes (Note 3) 0 968,729 (968,729)
Paging and other intercommunication 110,028 86,578 23,450
Dues 44,478 35,403 9,075
Licenses and permits 0 4,372 (4,372)
Other expenses 292,520 217,537 74,983
Total expenses before overage rent 70,028,194 72,072,486 (2,044,292)
NET OPERATING PROFIT $16,164,218 $9,219,704 $6,944,514
OVERAGE RENT, 50% OF NET OPERATING PROFIT
IN EXCESS OF $1,000,000 $7,582,109 $4,109,852 $3,472,257
-38-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
1. Professional fees include payments to Wien & Malkin LLP. A partner in
Wien & Malkin LLP is a partner in Company.
2. Litigation
(a) On October 21, 1991, Julien J. Studley ("Studley"), the holder of a $20,000
original participation in Empire State Building Associates ("Associates"), the
master lessee of the Empire State Building, brought suit against the Agents for
Associates (Peter L. Malkin, Donald A. Bettex and Alvin Silverman); Company;
Harry B. Helmsley, a partner in Company; and Wien, Malkin & Bettex, supervisor
to Associates. The suit claimed that the defendants have engaged in breaches of
fiduciary duty and acts of self-dealing in relation to the Agents' solicitation
of consents and authorizations of the Participants in Associates in September,
1991, and in relation to other unrelated acts of the Agents and the Sublessee.
The suit is styled as a class action, but the Court was not asked to grant class
certification. The suit seeks relief including an injunction and an accounting.
In 1994, the action was dismissed against Company and Mr. Helmsley. In 1995,
the plaintiff amended the complaint to allege, amongst other things, the
underpayment by Company of overage rent due to Associates. In June 1996,
plaintiff applied for partial summary judgment. In September 1996, defendants
applied for summary judgment and dismissal of the action in its entirety. By
order and decision dated July 14, 1997, the Court denied the plaintiff's motion
for partial summary judgment, granted the defendants' motion for summary
judgment, and dismissed the action. The plaintiff filed an appeal with respect
to the foregoing order. By decision and order entered April 2, 1998, the
Appellate Division of the Supreme Court unanimously affirmed the order
dismissing the action. The plaintiff has applied for permission to appeal the
Appellate Division's determination to the New York Court of Appeals, and that
application has been denied by both the Appellate Division and the Court of
Appeals. The plaintiff has filed a new complaint, which alleges claims similar
to those asserted in the previously dismissed complaint. The defendants have
applied for dismissal of the new complaint based on the prior dismissal orders
and on other grounds. In April 1999, the Court granted defendants motion to
dismiss the complaint. In May 1999, the plaintiff filed a Notice of Appeal.
It is not possible at this time to predict the outcome or range of potential
loss, if any, which results from this action. No provision for any liability
that may result upon adjudication has been made in the accompanying financial
statements.
(b) In December 1994, Empire State Building Associates ("Associates") received
a notice of default ("Notice I") from Trump Empire State Partners ("Trump"). The
Trump default notice to Associates claims that Associates is in violation of its
master lease because of extensive work Company has undertaken as part of an
improvement program that commenced before Trump reportedly acquired its interest
in the property in 1994. Trump's notice also complains that the building is in
need of repairs.
-39-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
2. Litigation - Continued
On February 14, 1995, Associates and Company filed an action in the New York
State Supreme Court against Trump for a declaratory judgment that none of the
matters set forth in the notice of default constitutes a violation of the
master lease or sublease, and that the notice of default is without merit.
Associates' and Company's suit also seeks an injunction to prevent Trump from
implementing the notice of default.
On March 24, 1995, the New York State Supreme Court, in the foregoing action,
granted Associates a preliminary injunction against Trump. Trump, thereafter,
served two additional default notices ("Notices II and III") for which the
Court had granted additional injunctions against Trump.
The injunctions prohibit Trump from acting on its notices of default to
Associates, at any time, pending the prosecution of claims by Associates and
Company for a final judgment granting a permanent injunction and other relief
against the Trump defendants. On April 8, 1996, the Court granted Associates
additional injunctions against Trump, which further prohibit Trump from seeking
to terminate Associates' Master Lease. On August 19, 1996, the Court denied a
motion by Trump to set aside the injunction granted in favor of Associates and
against Trump on March 24, 1995. The Court has directed the parties in the
foregoing action to proceed with pretrial discovery. Trump has appealed the
Court's injunction orders, and the Appellate Court has unanimously affirmed
the appealed orders.
On February 15, 1995, Trump filed an action against Associates, Company, Wien
& Malkin LLP, Harry B. Helmsley, Helmsley Spear, Inc. (the management company
of the Building engaged by Company), and the Partners, in New York State Supreme
Court, alleging that the notice of default is valid and seeking damages and
related relief based thereon. On October 24, 1996, the Court dismissed all of
Trump's claims in their entirety as against Associates and all other defendants
in the foregoing action. Trump appealed this ruling and the Appellate Court
unanimously affirmed dismissal of Trump's claims.
In May 1995, Associates and Company filed a separate legal action against Trump
and various affiliated persons for breach of the Master Lease and Sublease and
for disparagement of the property in violation of Associates' and Company's
leasehold rights. The action was amended to include additional claims by
Associates and Company seeking a declaratory judgment that they may act as an
owner of the Property for purposes of making applications and related activities
pursuant to the New York City Building Code. Trump moved to dismiss the claims
concerning the Building Code. By decision and order of October 24, 1996, the
Court rejected Trump's motion and sustained Associates' and Company's claims
concerning the parties who may act as owner of the Property under the Building
Code. The Court directed that the claims should proceed to trial. At the same
time, the Court dismissed Associates' and Company's claims against Trump and
co-defendants for money damages. The Appellate Court has affirmed that portion
of the Court's order dismissing the claims for money damages.
-40-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
2. Litigation - Continued
On June 5, 1998, Associates and Company filed a motion for summary judgment
against Trump and various affiliates that they may act as owner of the
Property in dealing with the New York City Department of Buildings.
In a decision and order dated March 10, 1999, the court awarded partial summary
judgment to Associates and Company in the action, declaring that Notices II and
III were invalid and of no force and effect, and further declaring that there
was no legal or factual basis for many of the defaults alleged in Notice I.
The court also stated that Trump appeared to concede that many of the remaining
defaults alleged in Notice I had been corrected, and that Trump would be
permitted to inspect the Building within 30 days of the date of the order to
determine whether these claimed violations had in fact been corrected. Finally,
the court directed Trump to notify plaintiffs, within 30 days of the completion
of its inspection, as to which defaults it claims still exist, and the court
granted plaintiffs' permission to renew their motion for summary judgment with
respect to any such remaining claims of default within 30 days of the receipt
of Trump's notice. Plaintiffs intend to challenge any such claims of default
by Trump and, if appropriate, to renew their motion for summary judgment.
In its March 10, 1999 decision and order, the Court also awarded summary
judgment to Associates in the Companion Action, declaring that Associates is
entitled to act as "owner" of the Building for purposes of dealing with the
Buildings Department and enjoining Trump from interfering with such right.
On December 16, 1999, the New York State Supreme Court dismissed entirely the
attempt by Trump to terminate the leasehold. The dismissal order was entered
on January 12, 2000. Trump has appealed the Supreme Court's decision.
In connection with the Studley and Trump litigations, Associates may be entitled
to reimbursement of its legal and accounting expenses from Company. Through
December 31, 1999, such legal and accounting expenses in connection with the
Studley suit have amounted to $1,179,714, of which $867,410 has been advanced
by Wien & Malkin LLP (a related party) to third-party professional firms, and
$312,304 represents accumulated professional time of Wien & Malkin LLP. In
addition, through December 31, 1999 the accrual for accumulated professional
time by Wien & Malkin LLP amounted to $312,172 in connection with the Trump
suits. Substantial additional legal and accounting costs may be incurred in
both cases.
The determination of the allocable share of the net legal and accounting costs
and disbursements chargeable to Company involve complex issues of fact and law.
Because of uncertainties concerning these issues, an amount for professional
fees payable by Company cannot be estimated, and therefore, have not been
provided for. Resolutions unfavorable to Company could result in material
liabilities and charges which have not been reflected in the accompanying
financial statements.
-41-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
2. Litigation - Continued
(c) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled Robert D. Gould P.C. v.
Empire State Building Company, et al. This lawsuit, which is brought by a tenant
in the building, seeks $5,000,000 in damages for an alleged breach of lease and
tortious conduct. The Supreme Court entered an order precluding plaintiff from
proving damages by reason of its failure to serve an adequate bill of
particulars. Plaintiff's motion to vacate the order of preclusion was denied,
and its time to appeal from the order of preclusion expired. The action has
been transferred to the New York City Civil Court. Plaintiff has taken no step
to prosecute the case subsequent to the transfer. The case has been dormant
since 1996.
(d) Company is a defendant in an action pending in the United States District
Court for the Southern District of New York, entitled R. Gene Smith and Turbo
Vision Limited Partnership vs. Neil H. Kessner, Richard C. O'Conor, Neil H.
Kessner and Associates, Steven M. Durels, The Empire State Building Company and
Stephen A. Tole. This lawsuit, which is brought by the principals of a tenant
in the Empire State Building, alleges various claims for damages against the six
named defendants in connection with plaintiffs' alleged construction and
operation of an entertainment facility in the building. As against the Company,
plaintiffs allege fraudulent inducement in connection with matters pertaining
to the making of a lease agreement in connection with the foregoing
entertainment facility, and to the construction and operation of the foregoing
entertainment facility; and breach of the covenant of quiet enjoyment contained
in the lease, which was entered into in connection with the foregoing
entertainment facility. Plaintiffs allege that they expended funds and incurred
future liabilities in connection with the construction and operation of the
foregoing entertainment facility, and on each of their claims against the
Company, plaintiffs allege damages in an amount not less than $5,000,000 and
punitive damages in an amount not less that $10,000,000 (together with interest,
attorney's fees, and the costs and disbursements of the action).
The Company has denied the material allegations of the complaint against it and
has asserted various affirmative defenses. The Company has also asserted a
cross-claim against defendant Stephen A. Tole for indemnification and/or
contribution for the entire amount of any damages awarded in plaintiffs' favor
against the Company, as well as a cross-claim against defendants Tole, Neil H.
Kessner, Richard C. O'Conor, Steven M. Durels and Neil H. Kessner and
Associates, jointly and severally, for contribution and/or indemnification for
part or all of any such damages. The Company has furthermore filed a third-
party complaint against Helmsley-Spear, Inc., as an agent of the Company and
the employer of defendant Tole, asserting claims for indemnification,
contribution and/or respondeat superior for the entire amount, or part thereof,
of any damages awarded in plaintiffs' favor against the Company. The co-
defendants and the third-party defendant have denied the material allegations
of the cross-claims and third-party complaint.
By a Stipulation and Order of Dismissal filed April 10, 1998, the Federal Court
Action was dismissed, without prejudice, as against Company. (Because of that
dismissal, certain cross-claims and a third-party complaint asserted by Company
were also dismissed without prejudice.) Accordingly, the Federal Court Action
is no longer pending against Company.
-42-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
2. Litigation - Continued
On April 23, 1998, certain of the plaintiffs in the Federal Court Action
(together with other parties) filed a new complaint in New York State court
against Company, which was principally the same as the complaint originally
filed in the Federal Court Action. Plaintiffs never served that state court
complaint on Company and have not prosecuted that action.
In August 1999, Company moved to dismiss the complaint as against it in its
entirety. By order dated November 9, 1999, the Supreme Court granted Company's
motion and dismissed the complaint. On December 8, 1999, plaintiffs filed a
Notice of Appeal of the dismissal order.
The Company intends, and has begun, to defend the action vigorously. The action
is presently at a discovery stage, and counsel is not able to express an opinion
as to the likely outcome or to estimate amounts or a range of potential losses
or gains.
(e) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled New York Skyline Inc. v.
Empire State Building Company, Empire State Building Associates, Neil H.
Kessner, Helmsley-Spear, Inc. and Stephen A. Tole. This lawsuit which is
brought by a tenant in the building and commenced on December 23, 1997 seeks at
least $205,000,000 in damages. In its complaint, plaintiff-tenant asserts
thirteen causes of action (twelve of which are against the Company) in
connection with its leases and license agreements of space in the Building and
alleges that it is entitled to, among other things, specific performance as to
its alleged rights under its leases and licensing agreements with the Company,
a declaratory judgment as to the rights of the parties under the leases and
licensing agreements as well as any monies allegedly due plaintiff under those
agreements, as well as injunctive relief and additional money damages.
On or about February 5, 1998, plaintiff served an amended complaint which, among
other things, added Kessner & Cyruli, f/n/a Neil H. Kessner & Associates, former
landlord-tenant counsel for the building, and Eileen Aluska, a former Helmsley-
Spear, Inc. employee and Peter L. Malkin, as third party-defendants. The
amended complaint asserted eleven causes of action against the Company, similar
to those asserted in the original complaint.
By order and decision dated April 3, 1998 (the "April 3, 1998 Order"), the Court
granted plaintiff a Yellowstone injunction on the condition that plaintiff pay
$878,000 in back rent to the Company and ordered that a hearing be held to
determine the amount due on disputed rent and license fees. Plaintiff made
timely payment of the $878,000 to the Company. The hearing to determine the
amount due on disputed rent and license fees has not yet been held.
On March 16, 1998 the Company moved to dismiss the second, third, fifth, sixth,
eighth, ninth and eleventh causes of action with respect to the amended
complaint. By decision and order dated February 25, 1999, the Court granted
the Company's motion to dismiss the second, fifth, sixth, eighth, ninth and
eleventh causes of action, and denied the Company's motion to dismiss the
third cause of action.
-43-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
2. Litigation - Continued
By order to show cause dated December 22, 1998, plaintiff moved for a temporary
restraining order and preliminary injunction preventing the Company from seeking
to enforce a Notice of Default that the Company had served on plaintiff with
respect to certain space leased to plaintiff under the lease dated as of March
1996 covering Rooms 209-214, 233-250 and 340-346 in the Building. The Company
has opposed the motion and oral argument on the motion has not yet taken place.
Company and plaintiff entered into a settlement agreement (the "Settlement
Agreement") dated as of December 30, 1999. Pursuant to the Settlement
Agreement, the parties entered into a stipulation dismissing with prejudice
the plaintiff's action against Company and all of the other defendants.
Under the Settlement Agreement, plaintiff and each of the defendants in the
Action exchanged mutual general releases. In particular, the release from
Company released plaintiff from, among other things, "any and all claims for
rent, additional rent and/or license fees due through December 1999 under
[Skyline's] leases and license agreements with Company". The amount Company
claimed was owed from plaintiff through December 1999 exceeded $1.5 million.
The Company release to plaintiff does not cover plaintiff 's rent and license
obligations on a going forward basis under plaintiff 's remaining leases and
license agreement with Company. Those obligations continue.
Simultaneously with entering into the Settlement Agreement, Company and
plaintiff entered into a Surrender Agreement (dated as of December 30, 1999)
pursuant to which plaintiff surrendered to Company space it had leased on the
2nd and 3rd floor of the Empire State Building under a lease running through
July 2016.
As a further part of the Settlement Agreement, Company and plaintiff entered
into a Second Modification of License Agreement which changed certain of the
parties' obligations to each other under the existing license agreement and
may, under certain circumstances, lead to additional license fees being paid
to Company.
Finally, as part of the Settlement Agreement, Company and plaintiff entered
into a Third Amendment of Lease which changed an additional rent escalation
clause from an operating expense calculation to one using the Consumer Price
Index.
-44-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
2. Litigation - Continued
(f) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled Magnifique Parfumes And
Cosmetics, Inc. d/b/a Perfumania v. Empire State Building Inc.
This is an action commenced on or about October 15, 1998 against Company
(incorrectly named in the action as "Empire State Building, Inc.").
This lawsuit which is brought by a tenant in the building seeks at least
$700,000 in damages. In its complaint, plaintiff-tenant alleges that the
Company breached its lease with plaintiff by, among other things, charging
plaintiff for electricity on a submetering basis at a rate which far exceeds
the rate permissable under the lease.
On or about February 2, 1999, the Company served an answer to the complaint.
The answer denied the material allegations of the complaint and asserted eight
affirmative defenses.
On or about February 22, 1999, the Company served an amended answer and
counterclaim. The amended answer denied the material allegations of the
complaint and asserted nine affirmative defenses.
The counterclaim against plaintiff and Perfumania, Inc. (as guarantor) alleges
that plaintiff breached certain obligations under the lease to pay certain rent,
electricity and operating expense charges and owes the Company $37,312.11 in
arrears under the lease.
The Company intends to contest the case vigorously.
(g) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled Duane Reade v. Walgreen Co.
and Empire State Building. This is an action which is brought by a tenant in
the building and commenced on February 14, 2000.
Plaintiff alleges, among other things, that Company misled plaintiff in
negotiations for a renewal of its current lease that expires on April 30, 2000,
and wrongfully entered into a lease with Walgreen for the space currently
occupied by plaintiff.
The complaint seeks no money damages, but instead seeks a judgment declaring
that the lease between Walgreen and Company be deemed a renewal of the lease
between Company and plaintiff, and that plaintiff be substituted for Walgreen
as the tenant under the Walgreen lease. Alternatively, the complaint seeks a
judgment declaring that the Walgreen lease is a graft upon plaintiff's
existing lease for it's use and benefit and that plaintiff have all rights of
the tenant under the Walgreen lease.
Company's time to move or answer in response to the complaint has been extended
by written stipulation to March 20, 2000. Company intends to contest the case
vigorously.
-45-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Liabilities
The State of New York has asserted utility tax deficiencies of $1,528,816
through December 31, 1992 in connection with water, steam and non-metered
electricity rent inclusion charges to tenants, plus estimated accrued interest
of $797,713.
The Supreme Court, New York County granted summary judgment in favor of the
State, holding that the State utility tax applies to such rent inclusion
charges. The ruling was affirmed by the Appellate Division. Company sought
permission to appeal the Appellate Division's decision and order to the Court
of Appeals. The Court of Appeals denied Company's motion. In May, 1996,
Company entered into a settlement agreement with the State. Pursuant to the
terms of the settlement agreement, Company agreed to pay the State $979,109,
plus interest of approximately $605,000 through July 31, 1996. The State has
agreed to payment of the aforesaid liability over a period of four years,
commencing August, 1996, in equal monthly installments of $40,000, including
interest on the unpaid balance at the statutory rate. Installment payments to
the State of $40,000 per month have been made by Company commencing on August
1, 1996. Company also is liable for New York State Utility Tax for periods
after December 31, 1992. The state has asserted tax for the years 1993
through 1995, in the sum of $243,270 plus interest of $114,918 through December
31, 1999. Company is currently negotiating a payment schedule for the aforesaid
liability. It is anticipated that New York State will seek to impose liability
on Company for state utility tax for periods after December 31, 1995 through
December 31, 1997. The amount of such additional tax has yet to be determined.
The imposition of both New York State and New York City utility taxes on non-
metered electricity rent inclusion charges was repealed effective January 1,
1998.
The City of New York has asserted a utility tax deficiency in the amount of
$277,125 against Company, through December 31, 1994, in connection with water,
steam and non-metered electricity rent inclusion charges to tenants, plus
accrued interest of approximately $315,610 through December 31, 1999. Company
is contesting the calculation of the City's proposed utility tax deficiency
before the New York City Tax Appeals Tribunal. The final outcome of Company's
appeal cannot presently be determined. Under a settlement proposed by New York
City for all taxpayers, Company will settle utility taxes for all open years by
paying the tax for only the year 1997, the determination of which is pending.
Wien & Malkin LLP and Peter L. Malkin are engaged in a dispute with Helmsley
Spear, Inc. concerning the management, leasing and supervision of the Company's
property. In this connection, certain legal and professional fees and other
expenses have been paid and incurred and additional costs are expected to be
incurred. The Company's allocable share of such costs is as yet undetermined.
Accordingly, the Company has not provided for the expense and related liability
with respect to such cost in these financial statements.
4. Net credit re water charges
Prior to 1998, The City of New York had rendered estimated water charges for
approximately one and one-half years because it had not read the various water
meters. During 1997, Company had received charges which were in excess of
previously rendered charges and Company then retained a water consultant.
The consultant determined that Company had been overcharged in prior years;
accordingly, the City of New York rendered credits, attributable to prior years,
which exceed the 1998 water expense.
-46-
EXHIBIT INDEX
Number Document Page*
3(a) Registrant's Partnership Agreement dated July 11,
1961, filed as Exhibit No. 1 to Registrant's Registration
Statement on Form S-1 as amended (the "Registration
Statement") by letter dated August 8, 1962 and assigned
File No. 2-18741, is incorporated by reference as an
exhibit hereto.
3(b) Amended Business Certificate of Registrant filed with
the Clerk of New York County on August 7, 1998 reflecting
a change in the Partners of Registrant which was filed as
Exhibit 3(b) to Registrant's 10-Q-A for the quarter ended
September 30, 1998 and is incorporated by reference as
an exhibit hereto.
4 Registrant's form of Participating Agreement, filed as Exhibit
No. 6 to the Registration Statement by letter dated August 8,
1962 and assigned File No. 2-18741, is incorporated by reference
as an exhibit hereto.
10(a) Mortgage dated December 21, 1951 from Imperium Corporation to
Prudential Insurance Company of America ("Prudential"), filed by
letter dated March 31, 1981 (Commission File No. 0-827) as
Exhibit 10(a) to Registrant's Form 10-K for the fiscal year
ended December 31, 1980, is incorporated by reference as an
exhibit hereto.
10(b) Modification of Indenture of Lease dated December 27, 1961
between Prudential and Registrant filed by letter dated March
31, 1981 (Commission File No. 0-827) as Exhibit 10(b) to
Registrant's Form 10-K for the fiscal year ended December 31,
1980, is incorporated by reference as an exhibit hereto.
____________________________________________
* Page references are based on sequential numbering system.
-47-
10(e) Modification and Extension Agreement, dated October 26, 1964
between The Bowery Savings Bank and Celeritas Realty Corp.,
filed by letter dated March 31, 1981 (Commission File No. 0-827)
as Exhibit 10(e) to Registrant's Form 10-K for the fiscal year
ended December 31, 1980, is incorporated by reference as an
exhibit hereto.
13(a) Letter to Participants dated April 10, 2000 and supplementary
financial reports for the fiscal year ended December 31, 1999.
The foregoing material shall not be deemed "filed" with the
Commission or otherwise subject to the liabilities of Section 18
of the Securities Exchange Act of 1934 and is incorporated by
reference as an exhibit hereto.
24 Powers of Attorney dated August 6,1996 and May 14, 1998, between
the Partners of Registrant and Richard A. Shapiro and Stanley
Katzman, filed as Exhibit 24 to Registrant's 10-Q for the
quarter ended March 31, 1998 and is incorporated by reference
as an exhibit hereto.
27 Financial Data Schedule of Registrant for the fiscal year
ended December 31, 1999, filed as Exhibit 27 to Registrant's
Form 10-K for the fiscal year ended December 31, 1999, is
incorporation by reference as an exhibit hereto.
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