<PAGE> 1
________________________________________________________________________________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
_______________
For Quarter Ended June 30, 1995 Commission File Number 1-6249
------------- ------
First Union Real Estate Equity and Mortgage Investments
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Ohio 34-6513657
------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Suite 1900, 55 Public Square
Cleveland, Ohio 44113-1937
---------------------------------------- ------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (216) 781-4030
--------------------------------------------------------------------------------
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
18,435,037 Shares of Beneficial Interest outstanding as of June 30, 1995
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number of pages contained in this report: 12
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PART I - FINANCIAL INFORMATION
------------------------------
Item 1. Financial Statements.
------------------------------
The combined financial statements included herein have been prepared
by the registrant, without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations, although the registrant believes that
the disclosures contained herein are adequate to make the information presented
not misleading. It is suggested that these combined financial statements be
read in conjunction with the combined financial statements and the notes
thereto included in the registrant's latest annual report on Form 10-K.
The unaudited "Combined Balance Sheets" as of June 30, 1995 and
December 31, 1994 and "Combined Statements of Income and Combined Statements of
Changes in Cash" for the periods ended June 30, 1995 and 1994, of the
registrant, and "Notes to Combined Financial Statements," are included herein.
These financial statements reflect, in the opinion of the registrant, all
adjustments (consisting of normal recurring accruals) necessary to present
fairly the combined financial position and results of operations for the
respective periods in conformity with generally accepted accounting principles
consistently applied.
Item 2. Management's Discussion and Analysis of Financial Condition and
------- ---------------------------------------------------------------
Results of Operations.
----------------------
In January 1995, the registrant sold its 50% interests in two malls in
Wilkes-Barre, Pennsylvania and Fairmount, West Virginia for $29.5 million in
cash ($2 million was received in 1994), a $6 million mortgage note receivable
and the assumption by the purchaser of $4.7 million in mortgage debt, resulting
in a capital gain of approximately $29.9 million. The proceeds were invested
in short-term securities until tax-free exchange properties were acquired in
April 1995 and June 1995.
In April 1995, the registrant acquired Woodland Commons Shopping
Center in Buffalo Grove, Illinois, an upscale suburb of Chicago, with $21
million in cash. Additionally, the registrant acquired Steeplechase Apartments
in Cincinnati, Ohio for $11.9 million in cash on June 30, 1995. The purchases
were funded with the cash from the sale of the two malls and with bank loans
under the registrant's revolving credit agreement. In accordance with
provisions of the Internal Revenue Code, the registrant treated the sales and
purchases as "like-kind exchanges," and was not required to recognize or
distribute a gain for tax purposes, nor pay federal income taxes.
Income from operations was $1.620 million and $1.654 million for the
three months ended June 30, 1995 and 1994, respectively, and $3.260 million and
$3.266 million for the six months ended June 30, 1995 and 1994, respectively.
Income from property operations, which is rents less operating
expenses and real estate taxes, increased when comparing the second quarter and
six months of 1995 to the same periods of 1994. This increase was primarily
attributed to the acquisition of an apartment complex in August 1994, the
shopping center purchased in April 1995 and increased rental rates per unit for
the apartment complexes in the portfolio for all of 1995 and 1994. The
apartment complex acquired on June 30, 1995, had no effect on income from
property operations since it was acquired on the last day of the quarter.
Additionally, during the second quarter of 1995, favorable nonrecurring items
were recognized for a real estate tax refund in the office building portfolio
and several rent settlements with former tenants of the retail portfolio,
thereby increasing income from property operations when comparing the second
quarter and six months of 1995 to the same periods of 1994. However, these
increases were partially offset by the loss of property operating income from
the two malls sold in January 1995.
Mortgage interest income increased in the second quarter and six
months of 1995 as compared to the same periods of 1994 due to the $6 million
mortgage note receivable which was part of the consideration received in
January 1995 from the sale of the two malls.
Short-term investment interest decreased when comparing the same
periods of 1995 to that of 1994. During the second quarter and first six
months of 1994, the registrant had approximately $40 million invested in
short-term marketable securities versus approximately $8 million for the second
quarter of 1995 and $13 million for the first six months of 1995. In August
1994, the registrant used $19 million of the short-term
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investments to purchase an apartment complex. Also, in December 1994, the
registrant repaid $17 million under its bank lines of credit with short-term
investments. In the second quarter of 1995, the remaining short-term
investments from the sale of the two malls was used to purchase the shopping
center and apartment complex.
Depreciation and amortization expense increased when comparing the
second quarter and six months of 1995 to the same periods of 1994. The
property acquisitions in August 1994 and April 1995 and tenant construction
costs incurred in 1994 were the primary reasons for this increase.
Mortgage interest expense increased when comparing the second quarter
and six months of 1995 to the same periods of 1994. This increase was caused
by an increase of approximately three hundred basis points in the interest rate
on a variable rate mortgage loan secured by a shopping mall in St. Cloud,
Minnesota when comparing 1995 to 1994.
Bank loan interest expense increased when comparing the second quarter
and six months of 1995 to the same periods of 1994 due to an increase of three
hundred basis points in short-term interest rates when comparing 1995 to 1994.
The increase in interest rates was partially offset by the registrant repaying
$17 million under its bank lines of credit in December 1994.
Litigation and proxy expenses of $150,000 and $1.1 million were
incurred during the second quarter and six months of 1995, respectively. These
professional fees resulted from litigation and a proxy contest with a minority
shareholder. (See Part II, Item 1, Legal Proceedings.)
Net income was $1.470 million and $1.654 million for the second
quarter of 1995 and 1994, respectively, and $32.030 million and $3.266 million
for the six months ended June 30, 1995 and 1994, respectively. Capital gains
included in net income during the six months ended June 30, 1995 were $29.870
million from the sale of the two malls in January 1995.
Except as noted above, there has been no material change in the
registrant's financial condition from December 31, 1994.
PART II - OTHER INFORMATION
---------------------------
Item 1. Legal Proceedings.
------- ------------------
On February 3, 1995, the registrant filed a lawsuit in the United
States District Court ("District Court") for the northern District of Ohio (the
"Lawsuit") against, inter alia, Turkey Vulture Fund XIII, Ltd. (the "Fund"),
and its Managing Partner, Richard M. Osborne ("RMO"), who claimed to
beneficially own 9.3% of the outstanding shares of the registrant according to
Amendment No. 5 to Schedule 13D filed by the Fund with the Securities and
Exchange Commission (the "Commission") on or about May 9, 1995. The Lawsuit is
described in Part I, Item 3 of the registrant's Annual Report on Form 10-K
filed with the Commission on March 30, 1995. Since the initial filing, there
have been numerous motions and pleadings filed by the various parties and
discovery has been conducted.
On April 12, 1995, the District Court granted the registrant's motion
to amend its complaint. The defendants named in the registrant's First Amended
and Supplemental Complaint for Injunctive Relief, Damages, and Other Relief
("Amended Complaint") are The Wolstein Group, Bert Wolstein, Scott Wolstein,
Heritage Capital Corporation, and Developers Diversified Realty Corporation
(the "Wolstein Defendants"), and RMO, the Fund, and Mark P. Escaja (all
collectively the "Defendants"). The Amended Complaint is described in Part II,
Item 1 of the registrant's Form 10-Q filed with the Commission on May 15, 1995.
On July 3, 1995, the District Court granted the registrant's motion to
file its second amended complaint. The Defendants named in the registrant's
Second Amended and Supplement Complaint for Injunctive Relief, Damages and the
Other Relief are the same as those named in the First Amended Complaint. The
Second Amended Complaint alleges that the Defendants have, inter alia, (i)
filed a false and misleading Schedule 13D and amendments thereto, or failed to
file, in violation of Section 13(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), and the rules and regulations promulgated thereunder; (ii)
failed to comply with the federal and state requirements for commencing a
tender offer in violation of Sections 14(a) and 14(d) of the Exchange Act and
Section 1707.041 of the Ohio Revised Code; (iii) manipulated the market for the
registrant's securities in violation of Sections 10(b) and 14(e) of the
Exchange Act and Rule 10b-5; (iv) violated their
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obligations under the registrant's Declaration of Trust and By-Laws, and their
obligations of good faith and fair dealing to other shareholders of the
registrant; (v) disseminated false and misleading proxy statements and other
solicitation materials;(vi) that certain defendants and others dealt in the
registrant's shares while in possession of material, non-public information
relating to the commencement of a tender offer in violation of Section 14(e) of
the Exchange Act; (vii) that defendants RMO and The Fund tortuously interfered
with the registrant's business relations and business opportunities; and (viii)
that various Wolstein Defendants controlled persons committing the
aforementioned acts or were otherwise responsible for such actions of other
persons, in violation of Section 20(a) of the Exchange Act and the rules and
regulations promulgated thereunder. The Second Amended Complaint seeks
preliminary and permanent injunctive relief against the Defendants, damages in
the amount of $30 million, inter alia, for causing the registrant to defend
against an illegal proxy contest and distraction of management and business
disruption, and such other and further relief as may be just and proper.
On June 16, 1995, the District Court granted the Fund and RMO's
motion to file their second amended counterclaims (the "Osborne Second Amended
Claims") in the Lawsuit against the registrant and its board of trustees
alleging, inter alia, (i) violations of Section 14(a) under the Exchange Act
and the rules promulgated thereunder in connection with the solicitation of
proxies and the distribution of proxy materials by the registrant relating to
the registrant's annual meeting of shareholders held April 11, 1995 (the
"Annual Meeting"), and (ii) derivative claims for alleged breach by the
trustees of their fiduciary obligations. The Fund and RMO seek relief
including (a) invalidation of the results of the election of trustees at the
Annual Meeting, (b) an award of damages to the registrant from the trustees of
$5.45 million, and (c) an award of damages to the Fund and RMO from the
registrant and the trustees of $500,000 in compensatory damages and $2 million
in punitive damages.
The Wolstein Defendants have filed amended counterclaims (the "Wolstein
Amended Claims") against the registrant and James C. Mastandrea alleging tort
claims. The Wolstein Defendants seek compensatory damages in amounts not less
than $10 million for defendant Developers Diversified Realty Corporation
("DDRC") and $1 million for each of the Wolstein Defendants and punitive
damages in an amount not less than $20 million for defendant DDRC and $5
million for each of the other Wolstein Defendants. Defendant Escaja has also
filed a counterclaim for allged abuse of process. He seeks $500,000 in
compensatory damages and $500,000 in punitive damages.
The registrant denies that any of the counterclaims are entitled to
relief, has filed motions to dismiss all counterlaims, and is vigorously
defending against all counterclaims. The registrant has filed a motion for
summary judgement in its favor on certain of its claims against RMO and the
Fund. RMO, the Fund, the Wolstein defendants and Escaja have also filed
motions for summary judgment. On August 9, 1995, the District Court denied the
Wolstein Defendants' motion pertaining to First Union's claim that the Wolstein
Defendants are liable on controlling persons for the securities law violations
of their agent/employee defendent Escaja, under Section 20 of the Exchange Act
and common law principles of agency. The District Court granted the motion for
summary judgment, in part, that the Wolstein Defendents cannot be bound by the
registrant's Declaration of Trust and had no obligation to make filings under
the Exchange Act since there was no evidence that the Wolstein Defendants ever
owned any of the registrant's shares. DDRC was dismissed from the lawsuit.
Accordingly, the Wolstein Defendants with the exception of DDRC, remain parties
to this action with respect to the Claims described above. Trial is scheduled
to begin October 31, 1995.
Item 2. Changes in Securities.
------- ----------------------
None.
Item 3. Defaults Upon Senior Securities.
------- --------------------------------
None.
Item 4. Submission of Matters to a Vote of Security Holders.
------- ----------------------------------------------------
None.
Item 5. Other Information.
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None.
Item 6. Exhibits and Reports on Form 8-K.
------- ---------------------------------
(a) Exhibits:
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Exhibit (11) - Statements Re: Computation of Per Share Earnings.
Exhibit (20) - Financial Statements (Unaudited)
- Combined Balance Sheets as of June 30, 1995 and December
31, 1994
- Combined Statements of Income, for the Three and Six
Months ended June 30, 1995 and 1994
- Combined Statements of Changes in Cash, for the Three and
Six Months ended June 30, 1995 and 1994.
- Notes to Combined Financial Statements
Exhibit (27) - Financial Data Schedule
(b) Reports on Form 8-K:
-------------------
None.
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SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
First Union Real Estate Equity and
Mortgage Investments
----------------------------------
(Registrant)
Date: August 14, 1995 By: /s/ Gregory D. Bruhn
----------------- ----------------------------------
Gregory D. Bruhn, Executive
Vice President and Chief
Financial Officer
Date: August 14, 1995 By: /s/ John J. Dee
----------------- ----------------------------------
John J. Dee, Senior Vice
President-Controller (Principal
Accounting Officer)
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<TABLE>
Index to Exhibits
-----------------
<CAPTION>
Page
Number
------
<S> <C> <C>
Exhibit (11) - Statements Re: Computation of Per Share
Earnings .......................................... 8
Exhibit (20) - Financial Statements (unaudited)
Combined Balance Sheets as of June 30, 1995
and December 31, 1994.............................. 9
- Combined Statements of Income, for the Three
and Six Months ended June 30, 1995 and 1994........ 10
- Combined Statements of Changes in Cash, for the
Three and Six Months ended June 30, 1995 and 1994. 11
- Notes to Combined Financial Statements..................... 11
Exhibit (27) - Financial Data Schedule.................................... 12
</TABLE>
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<PAGE> 1
<TABLE>
Exhibit 11
----------
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS AND
-----------------------------------------------------------
FIRST UNION MANAGEMENT, INC.
----------------------------
Statements Re: Computation of Per Share Earnings
-------------------------------------------------
(In thousands, except per share data)
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ---------------
1995 1994 1995 1994
---- ---- ---- ----
<S> <C> <C> <C> <C>
Shares Outstanding
For computation of primary net
income per share -
Weighted average 18,151 18,109 18,152 18,109
======= ======= ======= =======
For computation of fully diluted
net income per share -
Weighted average, without
regard to exercise of shares
under share option, restricted
stock or employee incentive
plans 18,110 18,109 18,100 18,109
Weighted average of outstanding
shares issued under restricted
stock plan 41 --- 45 ---
Weighted average of shares
issued under employee incentive
plan --- --- 7 ---
------- ------- ------- -------
Adjusted shares outstanding 18,151 18,109 18,152 18,109
======= ======= ======= =======
Net Income $ 1,470 $ 1,654 $32,030 $ 3,266
------- ------- ------- -------
Per Share - Primary and fully diluted:
Income after litigation and proxy
expenses(1) $ .08 $ .09 $ .12 $ .18
Capital gains(2) --- --- 1.64 ---
------- ------- ------- -------
Net income $ .08 $ .09 $ 1.76 $ .18
======= ======= ======= =======
<FN>
(1) In the three and six months ended June 30, 1995, the registrant incurred
professional fees of $150,000, or $0.01 per share, and $1,100,000, or
$.06 per share, respectively, in regard to litigation and a proxy contest
with a minority shareholder.
(2) In January 1995, the registrant sold its 50% interests in two shopping
malls resulting in a gain of approximately $29.9 million.
</TABLE>
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<PAGE> 1
<TABLE>
Exhibit 20
----------
Combined Balance Sheets
<CAPTION>
Unaudited (In thousands, except shares) June 30, December 31,
1995 1994
---------- ----------
<S> <C> <C>
ASSETS
Investments in real estate
Land $ 52,747 $ 44,594
Buildings and improvements 407,004 391,800
---------- ----------
459,751 436,394
Less - Accumulated depreciation (109,479) (111,972)
---------- ----------
Total investments in real estate 350,272 324,422
Mortgage loans receivable 41,869 35,761
Other assets
Cash and cash equivalents 958 2,975
Accounts receivable 3,962 4,594
Deferred charges, net 4,566 3,488
Unamortized debt issue costs 4,704 4,949
---------- ----------
$ 406,331 $ 376,189
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities
Mortgage loans $ 85,128 $ 90,796
Senior notes 105,000 105,000
Bank loans 51,070 42,500
Accounts payable and accrued liabilities 15,323 16,686
Deferred obligations 10,593 10,522
Deferred capital gains and other income 7,743 7,745
Shareholders' equity, including shares of
beneficial interest, $1 par, unlimited
authorization, outstanding 1995--
18,435,037; 1994--18,262,725 131,474 102,940
---------- ----------
$ 406,331 $ 376,189
========== ==========
</TABLE>
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<TABLE>
Combined Statements of Income
<CAPTION>
Unaudited (In thousands, except per share data) Three Months Six Months
Ended June 30, Ended June 30,
-------------- --------------
1995 1994 1995 1994
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues
Rents $18,334 $17,391 $36,323 $35,042
Interest - Mortgage loans 1,121 981 2,193 1,956
- Investment interest 121 360 407 651
------ ------ ------ ------
19,576 18,732 38,923 37,649
====== ====== ====== ======
Expenses
Property operating 6,258 6,150 12,557 12,741
Real estate taxes 2,130 1,913 4,128 3,934
Depreciation and amortization 3,211 2,908 6,298 5,749
Interest--Mortgage loans 1,925 1,759 3,914 3,547
--Senior notes 2,325 2,325 4,652 4,652
--Bank loans and other 1,275 1,129 2,403 2,139
General and administrative 832 894 1,711 1,621
------ ------ ------ ------
17,956 17,078 35,663 34,383
------ ------ ------ ------
Income from operations 1,620 1,654 3,260 3,266
Litigation and proxy expenses 150 1,100
------ ------ ------ ------
Income after litigation and proxy expenses
and before capital gains 1,470 1,654 2,160 3,266
Capital gains 29,870
------ ------ ------ ------
Net income $ 1,470 $ 1,654 $32,030 $ 3,266
======= ======= ======= =======
Per share
Income from operations $ .09 $ .09 $ .18 $ .18
======= ======= ======= =======
Income after litigation and proxy expenses
and before capital gains $ .08 $ .09 $ .12 $ .18
Capital gains 1.64
------- ------ ------- ------
Net income $ .08 $ .09 $ 1.76 $ .18
======= ======= ======= =======
Dividends declared $ .10 $ .10 $ .20 $ .20
======= ======= ======= =======
Adjusted shares of beneficial interest 18,151 18,109 18,152 18,109
======= ======= ======= =======
</TABLE>
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<TABLE>
Combined Statements of Changes in Cash
<CAPTION>
Unaudited (In thousands) Three Months Six Months
Ended June 30, Ended June 30,
-------------- ---------------
1995 1994 1995 1994
---- ---- ---- ----
<S> <C> <C> <C> <C>
Cash provided by (used for) operations
Net income $1,470 $1,654 $32,030 $ 3,266
Adjustments to reconcile net income to net
cash provided by operations -
Depreciation and amortization 3,211 2,908 6,298 5,749
Capital gains (29,870)
Increase in deferred charges, net (540) (412) (1,209) (343)
Increase in deferred interest on
mortgage investments, net (96) (87) (186) (168)
Increase in deferred obligations 36 31 71 61
Net changes in other assets and liabilities (2,995) (2,118) 1,354 432
------- ------- ------- -------
Net cash provided by operations 1,086 1,976 8,488 8,997
-------- ------ ------- -------
Cash provided by (used for) investing
Principal received from mortgage investments 40 36 78 71
Proceeds from sale of properties 27,500
Investments in properties (37,854) (1,374) (41,187) (2,717)
-------- ------- -------- --------
Net cash used for investing (37,814) (1,338) (13,609) (2,646)
-------- ------- -------- --------
Cash provided by (used for) financing
Increase in short-term loans 7,418 4,600 8,570 4,600
Repayment of mortgage loans-Normal payments (890) (1,003) (1,845) (1,913)
-Balloon payments (2,225)
Issue of First Union shares 75
Dividends paid (1,828) (1,810) (3,654) (5,070)
Debt issue costs paid (38) (28) (38) (46)
Purchase of First Union shares (34) (34)
Other 13 (1) (4) (23)
------- -------- ------- --------
Net cash provided by (used for) financing 4,675 1,724 3,104 (4,711)
------- -------- ------ --------
Increase (decrease) in cash and cash equivalents (32,053) 2,362 (2,017) 1,640
Cash and cash equivalents at beginning of period 33,011 37,801 2,975 38,523
------- -------- ------ -------
Cash and cash equivalents at end of period $ 958 $ 40,163 $ 958 $40,163
======= ======== ====== =======
<FN>
Notes to Combined Financial Statements
1. Income per share of beneficial interest has been computed based on
weighted average shares and share equivalents outstanding for the
applicable periods.
2. In January 1995, the registrant sold its 50% interests in two malls
located in Wilkes-Barre, Pennsylvania and Fairmount, West Virginia
for $29.5 million in cash ($2 million was received in 1994), a $6
million mortgage note receivable and the assumption by the purchaser
of $4.7 million in mortgage debt, resulting in a capital gain of
approximately $29.9 million.
3. The registrant incurred certain professional fees in regard to
litigation and a proxy contest with a minority shareholder.
</TABLE>
11
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> JUN-30-1995
<CASH> 958,000
<SECURITIES> 0
<RECEIVABLES> 3,962,000
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 4,920,000
<PP&E> 459,751,00
<DEPRECIATION> (109,479,000)
<TOTAL-ASSETS> 406,331,000
<CURRENT-LIABILITIES> 15,323,000
<BONDS> 241,198,000
<COMMON> 131,474,000
0
0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 406,331,000
<SALES> 36,323,000
<TOTAL-REVENUES> 38,923,0000
<CGS> 0
<TOTAL-COSTS> 16,685,000
<OTHER-EXPENSES> 8,009,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,969,000
<INCOME-PRETAX> 32,030,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 3,260,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 32,030,000
<EPS-PRIMARY> 1.76
<EPS-DILUTED> 1.76
</TABLE>
