<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [NO FEE REQUIRED]
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
Commission File No. 1-8815
EQK REALTY INVESTORS I
----------------------
(Exact name of Registrant as specified in its Charter)
MASSACHUSETTS 23-2320360
---------------------------------------- -------------------------------------
(State or other jurisdiction (I.R.S.Employer Identification No.)
of incorporation or organization)
2810 Spring Road, Suite 106, Atlanta, GA 30339
---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code) (770) 433-9400
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
------------------------------------ -----------------------------------------
Shares of Beneficial Interest OTC Bulletin Board System
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by checkmark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this form 10-K. / /
Indicate by checkmark 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 / /
The aggregate market value of Shares of Beneficial Interest held by
non-affiliates of the Registrant, based on the closing price of the Shares on
May 19, 2000 on the OTC Bulletin Board System of $.04 per share, is $385,057. As
of May 19, 2000, 9,632,212 Shares of Beneficial Interest were outstanding.
Officers and Trustees of the Trust (and certain of their family members) are
treated as affiliates for the purposes of this computation, with no admission
being made that such people or entities are actually affiliates.
DOCUMENTS INCORPORATED BY REFERENCE.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Part I
Item 1. Business 1
Item 2. Properties 8
Item 3. Legal Proceedings 13
Item 4. Submission of Matters to a Vote of Security Holders 14
Part II
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters 15
Item 6. Selected Financial Data 16
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 16
Item 7A. Quantitative and Qualitative Disclosures About Market Risk 19
Item 8. Financial Statements and Supplementary Data 19
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure 19
Part III
Item 10. Directors and Executive Officers of the Registrant 19
Item 11. Executive Compensation 22
Item 12. Security Ownership of Certain Beneficial Owners
and Management 23
Item 13. Certain Relationships and Related Transactions 24
PART IV
Item 14. Exhibits, Financial Statement Schedules, and
Reports on Form 8-K 25
</TABLE>
i
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PART I
ITEM 1. BUSINESS.
GENERAL DEVELOPMENT OF BUSINESS
EQK Realty Investors I, a Massachusetts business trust (the "Trust"),
was formed pursuant to an Amended and Restated Declaration of Trust dated
February 27, 1985, as amended on March 5, 1986 (the "Declaration of Trust"). On
December 14, 1999, the Trust filed a voluntary petition in the United States
Bankruptcy Court for the Middle District of Pennsylvania (the "Bankruptcy
Court") because the Trust was unable to repay certain mortgage indebtedness upon
the December 15, 1999 expiration date of forbearance and extension agreements
with its lenders. The Trust is now operating as a "debtor-in-possession"
pursuant to Chapter 11 of the U.S. Bankruptcy Code. On April 10, 2000, the Trust
and the Mortgage Note Lender (as hereinafter defined) filed a Joint Plan of
Reorganization in the Bankruptcy Court. See "Item 3-Legal Proceedings."
Newleaf Corporation (the "Advisor") became the advisor to the Trust
pursuant to an Advisory Agreement dated January 18, 2000. Gregory Greenfield &
Associates, Ltd. ("Greenfield") served as advisor for the period December 13,
1999 to January 18, 2000, and Lend Lease Portfolio Management, Inc. ("Lend
Lease") and its predecessor companies served as the Trust's advisor from the
Trust's inception to December 13, 1999. Jones Lang LaSalle Americas, Inc. and
its predecessor companies (the "Property Manager") currently serves, and has
served since June 1, 1990, as the property manager for the Trust's sole
remaining real estate asset, Harrisburg East Mall (the "Mall"). The principal
executive offices of the Trust and the Advisor are located at 2810 Spring Road,
Suite 106, Atlanta, Georgia, 30339, and their telephone number is (770)
433-9400.
The Trust has adopted a fiscal and taxable year ending December 31. The
Trust has transacted its affairs so as to qualify as, and has elected to be
treated as, a real estate investment trust under applicable provisions of the
Internal Revenue Code. Under the Internal Revenue Code, a real estate investment
trust that meets applicable requirements is not subject to Federal income tax on
that portion of its taxable income that is distributed to its shareholders.
The Trust consummated the public offering of its Shares of Beneficial
Interest (the "Shares") on March 12, 1985. The net proceeds to the Trust from
such offering, net of underwriting discount, amounted to $170,856,000 before
deducting offering expenses of $1,062,000. Certain of those proceeds aggregating
$167,032,000 were expended to acquire certain properties on March 13, 1985
(which were comprised of the Mall as described below under "Narrative
Description of Business," as well as two properties subsequently sold: Castleton
Park or "Castleton," an office park in Indianapolis, Indiana, which was sold in
transactions in 1991 and 1995, and Peachtree Dunwoody Pavilion, or "Peachtree,"
an office complex in Atlanta, Georgia, which was sold in transactions in 1992
and 1993).
As discussed more completely hereinafter under "Harrisburg East Mall
Disposition Plan" and "Mortgage Debt," Management intends, subject to Bankruptcy
Court approval, to dispose of its remaining real estate investment, the Mall, in
connection with its bankruptcy proceedings.
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The Declaration of Trust provided for the Trust's existence and a
maximum holding period for its real estate investments of 14 years. The
Declaration of Trust further provided that this 14 year term may be extended by
up to two years upon the recommendation of the Trustees and the affirmative vote
of a majority of its shareholders. Recognizing that the disposition of the Mall
would not be completed prior to the initial March 5, 1999 maturity date of the
Trust's term, the Board of Trustees recommended a two year extension of the
Trust's life through March 5, 2001. This recommendation was approved by the
shareholders at a Special Meeting of Shareholders held on February 23, 1999.
Trading in the Trust's Shares on the New York Stock Exchange ("NYSE")
terminated on May 4, 1998, as the Trust did not meet the NYSE's continued
listing criteria. The Trust's Shares are currently traded on the OTC Bulletin
Board System.
PROPOSED MERGER WITH AMERICAN REALTY TRUST
Effective December 23, 1997, the Trust entered into an Agreement and
Plan of Merger (the "Merger Agreement"), pursuant to which an affiliate of
American Realty Trust, Inc. ("ART") agreed to merge with and into the Trust (the
"Merger"), with the Trust being the surviving entity. The Merger Agreement
contemplated, among other things, an additional 20-year extension of the life of
the Trust. The Merger Agreement was amended on August 25, 1998 and further
amended on April 22, 1999 and June 4, 1999, (the "Revised Merger Agreement") to
provide for, among other matters, the right of the Trust to sell the Mall and
distribute proceeds of such sale to the Trust's shareholders prior to completing
the Merger and a corresponding reduction in the Merger consideration to be paid
to the Trust's shareholders. The Revised Merger Agreement was approved by the
Trust's shareholders on August 3, 1999.
The Revised Merger Agreement provided for Merger consideration to be
comprised entirely of ART Series F Cumulative Convertible Preferred Stock with a
par value of $2.00 per share and a liquidation value of $10.00 per share ("ART
Preferred Shares"). The Revised Merger Agreement provided for the Merger to be
effected by (i) ART's acquisition of 4,376,056 Shares held by four of the
Trust's shareholders (the "Selling Shareholders") and (ii) ART's receipt of
673,976 shares newly issued by the Trust, the combined effect of which would
give ART an approximate 49% interest in the Trust. The Selling Shareholders
would receive for each Share sold 0.030 of an ART Preferred Share with a
corresponding liquidation value of $0.30 per Share sold. The remaining
shareholders would be entitled to retain their Shares at the time of the Merger,
but would be compensated for the dilution in their percentage ownership interest
through the receipt of 0.014 of an ART Preferred Share with a corresponding
liquidation value of $0.14 per Share held. In addition, ART intended (but was
not legally obligated) to acquire the remaining Shares from such other
shareholders at some time after the third anniversary of the consummation of the
Merger for not less than 0.0486 of an ART Preferred Share with a liquidation
value of $0.486 for each Share tendered.
According to the terms of the Revised Merger Agreement, upon completion
of the sale of the Mall and receipt of shareholder approval, the Merger would be
completed. Immediately prior to the closing of the Merger, ART would convey one
of its properties to the Trust. The total consideration paid by the Trust to ART
for this property would be a $1,250,000 non-recourse five-year promissory note
and the assumption of approximately $1,500,000 of existing debt.
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ART had agreed to permit the Trust to continue to solicit or respond to
offers from third parties to acquire or merge with the Trust. In the event the
Trust accepted an offer from a party other than ART and elected not to proceed
with the Merger, the Trust generally would be obligated to pay ART a break-up
fee of $200,000 plus its share of transaction expenses (collectively, the
"Break-Up Consideration").
Because the Merger was not completed by December 15, 1998, the Revised
Merger Agreement became terminable by either ART or the Trust. The Revised
Merger Agreement also provided for termination by the Trust if: (i) the Trust
secured a more favorable offer from another party, subject to the payment of the
Break-Up Consideration; or (ii) the Revised Merger Agreement in any way impaired
or delayed the sale of the Mall, or was likely to result in a material reduction
in proceeds.
In view of the Trust's bankruptcy filing, the Trust will not be able to
consummate the Merger in accordance with the terms of the Revised Merger
Agreement nor to make any distributions to its shareholders without Bankruptcy
Court approval. Although management has had continuing discussions with
representatives of ART on terms and conditions of a transaction with ART and/or
its affiliates, no assurances can be provided that a new agreement will be
reached or, if reached, would be approved by the Bankruptcy Court. See "Item
3-Legal Proceedings."
HARRISBURG EAST MALL DISPOSITION PLAN
Management commenced marketing and sales activities relating to the
Mall during the second quarter of 1998, which included the retention of an
outside broker. Since the commencement of sales activities, changing conditions
in the capital markets have had an adverse effect on the market for real estate,
and especially on the market for regional shopping malls. This unfavorable
environment has been characterized by a reduction in available sources of
financing for real estate transactions, an increase in the cost of capital, and
by a reduction in purchasing interest on the part of many traditional buyers,
including many of the public real estate investment trusts. As a consequence,
the Trust was unable to consummate a sale of the Mall prior to the December 15,
1999 expiration date of forbearance and extension agreements with its lenders.
Subsequent to the filing of the bankruptcy petition, the Trust, with
approval of the Bankruptcy Court, entered into an agreement dated February 17,
2000 with the previously retained outside broker to market the Mall for sale.
Subject to Bankruptcy Court approval, Management plans to sell the Mall under
the auspices of the Bankruptcy Court in the second or third quarter of 2000.
In connection therewith, the Trust entered into a Purchase and Sale
Agreement dated effective as of May 16, 2000, with Uni-Invest (U.S.A.)
Partnership, L.P. ("Uni-Invest") to sell the Mall for a purchase price of
$46,500,000. Uni-Invest has deposited $250,000 of earnest money with an escrow
agent, and if Uni-Invest elects not to terminate the Purchase and Sale Agreement
within two days following the expiration of a thirty day inspection period, then
the initial $250,000 deposit becomes non-forfeitable, and Uni-Invest must
deposit an additional $750,000 with the escrow agent. The Purchase and Sale
Agreement is subject to Bankruptcy Court approval and is subject to higher and
better offers at an auction of the Mall which the Trust intends to conduct on
July 18, 2000, under the auspices of, and subject to the approval of, the
Bankruptcy Court. In the event that Uni-Invest should not be the successful
bidder at the auction, the Purchase and Sale Agreement provides for
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Uni-Invest to receive a refund of the earnest money and an expense reimbursement
of $300,000.
MORTGAGE DEBT
Since December 15, 1992, the Trust has had in place a "Mortgage Note"
with The Prudential Insurance Company of America ("Mortgage Note Lender"), which
had an initial balance of $75,689,000 and an original maturity date of December
15, 1995. The interest rates on the Mortgage Note averaged 9.79% over its
initial three-year term. However, the Mortgage Note required monthly payments of
interest only at the rate of 8.54% per annum. The additional interest charges
were accrued and added to principal over this initial term of the Mortgage Note.
Absent any prepayments of debt arising from property dispositions, the
amount of principal due on the original maturity date of December 15, 1995 would
have been $78,928,000. In December 1995, the Trust used net proceeds from the
sale of Castleton to retire a portion of the Mortgage Note. The remaining
principal balance of the Mortgage Note following such partial pay down as of
December 15, 1995, was $44,125,000.
In connection with the December 15, 1992 debt financings, the Trust
issued 1,675,000 previously repurchased Shares to Lend Lease for consideration
of $6,700,000, or $4.00 per Share. The Trust currently has available for
re-issuance an additional 423,343 Shares previously repurchased. Any issuance of
Shares in excess of the Shares previously repurchased would require Bankruptcy
Court approval and possibly shareholder approval.
Under the terms of the Mortgage Note, the Mortgage Note Lender received
warrants to purchase 367,868 Shares of the Trust for $.0001 per Share. On March
19, 1998, the Mortgage Note Lender exercised its warrants for 367,868 Shares at
$.0001 per Share. Such Shares were issued to the Mortgage Note Lender on May 7,
1998 which brought the total number of issued and outstanding Shares of the
Trust to 9,632,212.
The Trust also has had a term loan (the "Term Loan") with PNC Bank N.A.
("Term Loan Lender") in place since December 15, 1992, initially bearing
interest at 8.33% per annum and requiring payments at the same annual rate of
8.54% as was required under the Mortgage Note. The Term Loan is collateralized
by a subordinate lien on the Mall. The payments made in excess of the interest
rate were applied to the principal balance of the Term Loan such that the
original principal balance of $2,859,000 would have been reduced over its three
year term to $2,839,000, absent any prepayments arising from property
dispositions. In December 1995, the Trust used proceeds from the sale of
Castleton to retire a portion of the Term Loan. The remaining principal balance
of the Term Loan following such pay down was $1,587,000 as of December 15, 1995.
The Mortgage Note Lender and Term Loan Lender agreed to extend the
maturity date of these loans twice: first, for a period of one year through
December 15, 1996; and second, for a period of 18 months through June 15, 1998.
The Mortgage Note remains collateralized by a first mortgage lien on the Mall,
an assignment of leases and rents, and certain restricted cash balances. The
Term Loan remains collateralized by a subordinate lien on the Mall.
Following the June 15, 1998 scheduled maturity date, the Mortgage Note
Lender granted three six-month forbearance arrangements (through December 15,
1998, then through June 15, 1999,
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and then through December 15, 1999) wherein it agreed not to exercise remedies
for non-payment of the outstanding principal balance. The Term Loan Lender also
granted three six-month extensions of its maturity dates so as to coincide with
such forbearance periods. The forbearance and extension arrangements were
conditioned upon, among other things, the Trust continuing to make timely debt
service payments in monthly amounts equal to those amounts stipulated in the
December 1996 debt extension agreements. The expiration date of these final
forbearance and extension arrangements was December 15, 1999. Inasmuch as the
Trust was unable to obtain from its lenders additional forbearance and extension
arrangements on economically acceptable terms, the Trust filed a voluntary
bankruptcy petition on December 14, 1999.
The Mortgage Note was amended effective December 16, 1996 to provide
for monthly payments of interest only accruing at the rate of 8.88% per annum or
approximately $324,000 per month. This interest rate reflects an increase from
the 8.54% interest rate in effect during the initial extension period (December
16, 1995 to December 15, 1996).
The Term Loan reflects the same pay rate of 8.88%, effective December
16, 1996, that is applicable to the Mortgage Note, but accrues interest at a
rate that re-sets periodically. The accrual rate is computed at the Trust's
discretion at either 2 5/8% above the Euro-Rate 1-1/8% above the Prime Rate, as
such terms are defined in the Term Loan documents. The accrual rate currently in
effect is 8.90%. The excess of the interest accrued over the interest paid is
included in the principal balance of the Term Loan.
The Mortgage Note Lender has asserted that it is entitled to be paid
interest at the default rate (which is 5.04% in excess of the above 8.88%
stated rate) for all periods following June 15, 1998, due to the Trust's
failure to pay the Mortgage Note on the December 15, 1999, expiration date of
the forbearance agreement. The Term Loan Lender may assert that it is
likewise entitled to default rate interest at 5.00% in excess of the stated
Term Loan rate from the December 15, 1999, extended maturity date of the Term
Loan. Accordingly, the Trust has recorded accrued and unpaid interest in its
financial statements at December 31, 1999, at amounts which include the
accrual of default rate interest for such periods. The Trust has been advised
that it may have defenses to the Mortgage Note Lender's claim for default
rate interest for all periods prior to December 15, 1999. There can, however,
be no assurance that any such defenses would be successful.
In consideration for the extension of the maturity date of the Mortgage
Note through June 15, 1998, the Trust paid an up-front application fee of
$165,000 and agreed to pay a back-end fee of $272,900, plus interest thereon at
the contract rate of 8.88% at maturity. On June 15, 1998, the Trust paid the
back-end fee plus interest in the aggregate amount of $309,200 to the Mortgage
Note Lender. In consideration for the extension of the maturity date of the Term
Loan, the Trust paid an extension fee of $23,800 in 1997, and paid additional
loan fees of $88,100 to the Term Loan Lender on June 15, 1998.
In consideration for the extension of the forbearance agreement
relating to the Mortgage Note through June 15, 1999 and December 15, 1999, the
Trust paid extension fees of $25,000 for each extension. In consideration for
the extension of the maturity date of the Term Loan through June 15, 1999 and
December 15, 1999, the Trust paid extension fees of $8,000 and $15,700,
respectively.
OTHER MATTERS
The funding of the Trust's operations, debt service payments, and
its normal working
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capital needs currently are being provided pursuant to orders of the Bankruptcy
Court which authorize Trust borrowings under a post-petition secured loan by its
lenders, or alternatively, authorize the Trust to use cash collateral. This
funding is based on budgets attached to the orders which permit the Trust to
operate the Mall and to make certain capital expenditures in the ordinary course
of business required to maintain or enhance the value of the Mall, including
tenant allowances associated with leasing activity.
The Declaration of Trust prohibits the Trust's aggregate borrowings
from exceeding 75% of its total asset value, as defined.
NARRATIVE DESCRIPTION OF BUSINESS
As stated above, the Trust has completed the disposition of two of its
three real estate investments. The office buildings comprising Peachtree were
sold in three separate transactions in 1992 and 1993. Two of the office
buildings at Castleton were sold in 1991. The remaining office buildings at
Castleton were sold in 1995. The Trust's remaining real estate investment is a
regional mall located in Harrisburg, Pennsylvania. As discussed above,
Management is pursuing the disposition of the Mall, subject to the approval of
the Bankruptcy Court. The Trust anticipates making certain capital expenditures
in the ordinary course of business in order to maintain or enhance the value of
the Mall, as approved by the Bankruptcy Court.
HARRISBURG EAST MALL
LOCATION AND AREA OVERVIEW. The Mall is located in Dauphin County,
Pennsylvania, near the intersection of Paxton Street (U.S. Route 322) and
Interstate 83. The property is adjacent to Pennsylvania Route 441, approximately
five miles from the Pennsylvania Turnpike and three miles from the central
business district of Harrisburg. Access to the site from Interstate 83, the
major north-south traffic corridor serving Harrisburg, is provided by the Paxton
Street interchange. Access from the Pennsylvania Turnpike, the major east-west
traffic corridor serving Harrisburg, is provided by the Interstate 283
interchange.
TENANTS. At December 31, 1999, the Mall had 80 in-line mall and
outparcel tenants (excluding anchor store tenants) occupying approximately
272,000 square feet of gross leasable area, representing an occupancy rate of
approximately 81%. Other than the anchor store spaces, which are occupied by JC
Penney, Hecht's and Lord & Taylor, only Toys 'R' Us, which occupies
approximately 45,950 square feet of space as the anchor tenant in the Mall's
outparcel building, occupies more than five percent of the gross leasable area
of the Mall. Other than The Limited Inc., which operates seven stores at the
Mall and which contributed 13.7% of the Mall's 1999 rental revenues, no other
tenants, or group of affiliated tenants, contribute more than 10% to the Mall's
total rental revenues.
ANCHOR DEPARTMENT STORES. The Mall has three anchor department stores:
JC Penney and two divisions of May Department Stores Co. ("May Company"),
Hecht's and Lord & Taylor. Hecht's replaced Hess' in October 1995. Lord & Taylor
opened on March 10, 1997, replacing John Wanamaker, which had closed in October
1995 following Woodward & Lothrop's (the owner of John Wanamaker) sale of
certain department stores in its retail chain to May Company pursuant to an
August 1995 bankruptcy court auction.
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COMPETITION. The following table provides selected information with
respect to the Mall's primary competitors. Each of these properties is located
within eight miles of the Mall.
<TABLE>
<CAPTION>
Gross Leasable Anchor
Shopping Center Type of Center Area (Sq. Ft.) Stores
--------------- -------------- --------------- -------
<S> <C> <C> <C>
Colonial Park Mall Enclosed one- 765,000 Sears
level regional mall Bon-Ton
Boscov's
Capital City Mall Enclosed one- 722,000 Sears
level regional mall Hecht's
JC Penney
Camp Hill Shopping Enclosed one- 506,000 Boscov's
Center level mall Montgomery Ward
Giant (Grocery Store)
Union Square Power Center 309,000 Dunham's Sports
Office Max
Gabriel Bros.
Weis
Chuck E. Cheese's
Colonial Commons Power Center 433,000 Giant (Grocery Store)
Service Merchandise
Montgomery Ward
AMC Theater
RX Place
Point Shopping Center Power Center 277,000 U.S. Factory Outlet
Burlington Coat Factory
Lone Star Steakhouse
</TABLE>
COMPETITION ANALYSIS. The boundaries of the trade area for the Mall are
influenced by the existence of natural boundaries, competing developments, and
demographic characteristics. The Susquehanna River splits the Mall's market in
two, creating the East and West shores. The Mall is located in Dauphin County in
the East shore area. Its primary trade area consists of all of Dauphin County,
while the secondary trade area includes sections of Lebanon and Lancaster
counties on the East shore and sections of Perry and Cumberland counties on the
West shore.
Primary competition for the Mall consists of the three regional centers
identified in the table above located in the Harrisburg trade area: Colonial
Park Mall, Capital City Mall, and Camp Hill Shopping Center.
Colonial Park Mall, which opened in 1960, is located approximately five
miles north of the
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Mall in the primary trade area. It contains 765,000 square feet of gross
leasable area, 90 mall stores, and is anchored by Bon-Ton, Sears, and Boscov's.
This center was renovated and expanded with a food court and some specialty
shops during 1990. In addition, new skylights and some exterior redesign have
enhanced Colonial Park's appeal. Colonial Park continues to be the Mall's
primary competitor due to the strength of Boscov's and its in-line tenant mix,
which is comparable to that found at the Mall. The occupancy percentage for this
property is approximately 94%.
Capital City Mall, located ten miles to the west of the Mall's
secondary trade area, contains approximately 722,000 square feet of gross
leasable area and 94 mall stores. This center opened in 1974 and is anchored by
Hecht's, JC Penney, and Sears. The center was first renovated in 1986 and a
second renovation, completed in May 1998, included new flooring, plantings,
seating, skylights, and a food court area. This current occupancy of this center
is approximately 98%.
Camp Hill Shopping Center, a former community center, was originally
constructed in 1958 and completely enclosed and renovated in 1986. This center
is located approximately ten miles west of the Mall in the secondary trade area,
and contains approximately 506,000 square feet of gross leasable area and 70
mall stores. The center is anchored by Boscov's, Montgomery Ward, and Giant
Grocery Store. The current occupancy is approximately 65%.
ITEM 2. PROPERTIES.
HARRISBURG EAST MALL
GENERAL. The Mall is a two-level enclosed regional shopping mall
located approximately three miles from the central business district of
Harrisburg, Pennsylvania, the state capitol. It contains approximately 836,000
gross leasable square feet and is anchored by three major department stores: JC
Penney, Hecht's, and Lord & Taylor. The Mall is located on a site of
approximately 64 acres with paved surface parking for approximately 4,933
automobiles (5.9 spaces per 1,000 gross leasable square feet).
The total building area of the Mall is allocated as shown in the table
below.
<TABLE>
<CAPTION>
Gross % of
Number of Leasable Total
Store Spaces Area Building Occupancy at
December 31, 1999 (Sq.Ft.) Area December 31, 1999
------------------ --------- ----------- ------------------
<S> <C> <C> <C> <C>
Gross leasable area
Anchor Stores 3 498,948 50.8% 100.0%
Mall Stores 106 284,650 29.0 79.5
Free-standing building 3 52,345 5.3 87.8
------- ------- ---- ------
Total gross leasable area 112 835,943 85.1 92.2%
------ ------- ---- ======
Common area 146,371 14.9
------- ----
Total building area 982,314 100.0%
======= =====
</TABLE>
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OCCUPANCY DATA AND AVERAGE EFFECTIVE ANNUAL RENT. Information regarding
occupancy rates and average effective annual rent for the Mall, including anchor
and outparcel tenants, is set forth below:
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Occupancy Rate (a) 92.2% 93.6% 92.8% 93.7% 73.6%
===== ===== ===== ===== =====
Rent (b) $5,211,956 $5,146,957 $5,005,603 $4,902,122 $5,110,162
Total Percentage
Rent 244,847 272,421 122,298 179,474 269,558
------- ------- ------- ------- -------
Total Annual Effective
Rent 5,456,803 $5,419,378 $5,127,901 $5,081,596 $5,379,720
Average Annual Rent
Per Square Foot: (c)
Mall Anchor Tenants $1.30 $1.30 $1.29 $1.37 $1.32
Outparcel Stores $8.12 $8.12 $7.38 $7.44 $6.91
Mall Tenants $17.92 $18.44 $18.18 $17.08 $16.46
All Tenants $6.70 $6.91 $6.58 $6.26 $6.44
</TABLE>
------------------
(a) Occupancy rate at December 31, 1995 reflects vacancy of the former John
Wanamaker anchor space. Excluding the effect of the vacancy, the occupancy rate
on a pro forma basis at December 31, 1995 was 95.8%. On May 13, 1996, the Trust
and May Company executed a lease agreement that provided for the opening of a
Lord & Taylor department store. The December 31, 1996 occupancy rate includes
the contractual occupancy of Lord & Taylor, which opened for business on March
10, 1997.
(b) Total minimum annual rent represents actual tenant rental income for each
calendar year, and does not include non-cash adjustments for stipulated rent
increases in accordance with Generally Accepted Accounting Principles.
(c) Anchor and outparcel rent per square foot data is based on actual leased
square footage during each calendar year presented. Mall tenant rent per square
foot data is based on leased square footage at December 31 of each year
presented.
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LEASE EXPIRATIONS. The lease expiration schedule for Mall (non-anchor) and
outparcel stores as of December 31, 1999 is shown below:
<TABLE>
<CAPTION>
Percentage
1999 of 1999
Number Gross Minimum Minimum
of Leases Leased Annual Annual
Expiring(1) Area (Sq.Ft.) Rent Rent
---------- ------------- ------- -----------
<S> <C> <C> <C> <C>
Month to month 2 5,730 $ 102,630 2.0%
2000 10 21,268 524,266 10.0%
2001 13 27,806 584,741 11.2%
2002 7 6,143 129,279 2.5%
2003 13 30,541 684,433 13.1%
2004 4 7,914 209,970 4.0%
2005 9 75,987 692,613 13.3%
2006 6 24,874 467,420 9.0%
2007 4 7,361 135,693 2.6%
2008 7 11,787 198,703 3.8%
2009 and
thereafter 5 52,774 489,478 9.4%
------ ---------- ---------- ---------
TOTAL 80 272,185 $4,219,226 80.9%
======= ======== ========== =========
</TABLE>
----------------
(1) Assumes no renewal options will be exercised, and therefore presents the
earliest point of termination of the leases.
10
<PAGE>
ANCHOR TENANTS. The following chart presents tenants that occupy
more than 10% of the Mall's rentable square footage, along with certain
provisions contained in their leases:
<TABLE>
<CAPTION>
Leased Area Rent Lease
Tenant (Sq. Ft.) Per Annum Expiration Date Renewal Options (1)
------ ---------------- --------- --------------- -------------------
<S> <C> <C> <C> <C>
Hecht's 187,280 $200,000 1/31/2007 3-10 Year Options
J.C. Penney 153,770 $300,000 3/31/2001 (2) 6-5 Year Options
Lord & Taylor 157,898 $150,000 10/31/2005 3-10 Year Options
</TABLE>
----------------
(1) Hecht's and Lord & Taylor leases have operating covenants that require them
to continue to remain open and operate through December 2004 and October
2005, respectively. J.C. Penney's operating covenant has expired.
(2) The J.C. Penney lease requires J.C. Penney to give the Trust notice by
March 31, 2000, if it elects to exercise the option contained in its lease
to renew for a five-year term commencing April 1, 2001. J.C. Penney has
requested a six-month extension of time to September 30, 2000, to exercise
such renewal option, and the Trust has granted such extension.
DEBT. As discussed under Item 1 - Business, the Mortgage Note and Term
Loan facilities provided for an original maturity of December 15, 1995. The
Trust's Mortgage Note Lender and Term Loan Lender agreed to extend the maturity
date of these loans twice; first, for a period of one year through December 15,
1996, and second, for a period of 18 months through June 15, 1998. Following the
June 15, 1998 scheduled maturity date, the Mortgage Note Lender granted three
six-month forbearance arrangements (through, respectively, December 15, 1998,
June 15, 1999, and December 15, 1999). The Term Loan Lender also granted three
extensions of its maturity dates so as to coincide with the forbearance periods.
The expiration date of the Trust's final forbearance and extension
arrangements was December 15, 1999. Inasmuch as the Trust was unable to obtain
from its lenders additional forbearance and extension arrangements on
economically acceptable terms, the Trust filed a voluntary bankruptcy petition
on December 14, 1999.
11
<PAGE>
The following table sets forth certain information regarding the
Trust's outstanding mortgage debt.
<TABLE>
<CAPTION>
Annual Principal at
Pay December 31, Annual Debt
Loan Rate 1999 Service
---- ---- --------- -----------
(Amounts in thousands)
<S> <C> <C> <C>
Mortgage Note 8.88%(1) $43,794 $3,888
Term Loan 8.88%(2) 1,580 141
</TABLE>
---------------------------
(1) The Mortgage Note requires monthly interest only payments of $324,000, at an
annual stated interest rate of 8.88%. The Mortgage Note Lender has asserted that
it is entitled to be paid default rate interest from June 15, 1998 at a rate
which is 5.04% in excess of the stated rate.
(2) The Term Loan provides for the accrual interest rate to be re-set
periodically, and is computed at the Trust's discretion at either 2 5/8% above
the Euro-Rate (as defined) or 1 1/8% above the Prime Rate, as such terms are
defined in the Term Loan documents. The stated annual accrual interest rate in
effect as of March 15, 2000 was 8.90 %. The principal balance of the Term Loan
is increased for the excess of the interest accrued over the interest paid at
the annual pay rate of 8.88%. The Term Loan Lender may assert that it is
entitled to be paid default rate interest at 5.00% in excess of the stated Term
Loan rate from the December 15, 1999, extended maturity date of the Term Loan.
DEPRECIATION. The Trust depreciates its assets for Federal income tax
purposes under the Accelerated Cost Recovery System and the Modified Accelerated
Cost Recovery System. The income tax basis and related accumulated depreciation
amounts of its assets as of December 31, 1998, are as follows:
<TABLE>
<S> <C>
Buildings:
Gross Federal Income Tax Basis $50,527,000
Accumulated Depreciation $17,028,000
Depreciation Method Straight Line
Depreciable Life 40 Years
Land Improvements:
Gross Federal Income Tax Basis $ 3,020,000
Accumulated Depreciation $ 318,000
Depreciation Method Straight Line
Depreciable Life 40 Years
Personal Property:
Gross Federal Income Tax Basis $ 185,000
Accumulated Depreciation $ 128,000
Depreciation Method Straight Line*
Depreciable Life 10 Years*
</TABLE>
-----------
*Except for automobiles which are depreciated over a range of 3 to 7
years using the double declining balance method.
12
<PAGE>
REAL ESTATE TAXES. Real estate taxes are levied for county, township,
and school tax purposes. County and township taxes are payable March 31, and
school taxes are payable on August 31. The Trust paid $1,006,508 in real estate
taxes in 1999. The millage rate for 1999 was 29.38. Through an appeal with
Dauphin County, the assessed value of the Mall was lowered in 1998. The decrease
in tax expense associated with the lower assessed value was reflected in the
1999 real estate tax invoices. Real estate taxes are substantially reimbursed by
the Mall's tenants through real estate tax recovery billings.
PHYSICAL IMPROVEMENTS. Since acquiring the Mall in 1985, the Trust has
undertaken several physical improvement programs. In 1987, the Trust converted
approximately 51,400 square feet of space in the basement of the former Hess's
department store space into Mall tenant space, at which time it was leased to
Toys ' R' Us. During 1988, a new food court with approximately 13,000 square
feet of gross leasable area was added. In 1991, the Trust completed the
conversion of 47,960 square feet of space previously occupied by JC Penney into
approximately 31,500 square feet of new leasable area which has been leased at
substantially higher rates.
In conjunction with the JC Penney conversion, the remaining area of the
JC Penney store was remodeled. In addition, the terms of the amended JC Penney
lease required the Trust to renovate the common areas and the exterior facade of
the Mall. This renovation was completed in 1993 at a cost of approximately
$4,000,000. The renovation project included a complete refurbishment of the
Mall's interior common area, including new floors, finishes, and lighting
throughout.
Upon the expansion of Hecht's into the basement space previously
occupied by Toys 'R' Us in 1995 (approximately 51,400 square feet), the Trust
renovated the Mall's out-parcel building (approximately 52,000 square feet) to
accommodate the relocation of Toys 'R' Us at a cost of approximately $3,440,000.
In addition to the expansion of the anchor tenant space, Hecht's performed an
interior renovation of its new department store space.
Lord & Taylor opened in March 1997 in the former John Wanamaker anchor
tenant space. May Company (Lord & Taylor's parent company) undertook and
completed a major renovation of this anchor store location. The Trust believes
that May Company spent approximately $10,000,000 on renovations and
improvements.
ITEM 3. LEGAL PROCEEDINGS.
As discussed in Item 1 hereof, the Trust filed a voluntary petition in
the United States Bankruptcy Court for the Middle District of Pennsylvania on
December 14, 1999 because the Trust was unable to repay certain mortgage
indebtedness upon the December 15, 1999 expiration date of forbearance and
extension agreements with its lenders. The Trust is now operating as a
"debtor-in-possession" pursuant to Chapter 11 of the U.S. Bankruptcy Code.
On April 10, 2000, the Trust and the Mortgage Note Lender filed a Joint
Plan of Reorganization (the "Plan") in the Bankruptcy Court. The Plan provides
for the allowance of a secured claim of the Mortgage Note Lender in the amount
of approximately $47,478,000 plus legal fees, which amount includes accrued and
unpaid interest at the default rate from June 15, 1998 to the bankruptcy
petition date in the approximate amount of $3,360,000. The Plan further provides
that the Mortgage Note Lender will waive its entitlement to default rate
interest if by certain specified
13
<PAGE>
dates in July, 2000: (a) a Plan confirmation order is entered by the Bankruptcy
Court or the Mall is sold pursuant to order of the Bankruptcy Court; (b) the
general unsecured creditors (including Lend Lease--see Item 13 "Certain
Relationships and Related Transactions" hereof for a description of the Trust's
liabilities to Lend Lease) and the Term Loan Lender vote to accept the Plan; and
(c) closing of a sale of the Mall takes place or the Mortgage Note Lender is
conveyed title to the Mall property.
Upon the closing of the sale or conveyance of the Mall, the Plan
provides that the Mortgage Note Lender will receive payment of its secured claim
first from the restricted cash accounts which are held in trust and secondly
from the sales proceeds of the Mall. The Trust will deliver to an escrow agent a
deed in lieu of foreclosure in favor of the Mortgage Note Lender which shall be
released only in the event of a default by the Trust under the terms of the Plan
or failure to meet certain July, 2000, payment deadlines (unless extended). If
the proceeds from the proposed sale of the Mall are sufficient to pay all of the
Trust's claims in full, the Plan provides that the Mortgage Note Lender will be
entitled to a $200,000 administrative and forbearance fee.
Under the Plan, the Term Loan Lender will be paid its secured claim
from the proceeds remaining from the sale of the Mall, after payment of the
Mortgage Note. To the extent that the Term Loan is not paid in full from such
proceeds, then the deficiency will be treated as a general unsecured claim.
General unsecured claims will share pro rata in the Trust's remaining funds
after payment of administrative expenses, certain priority tax claims and
secured claims; provided, however, the Mortgage Note Lender has agreed to fund
up to $750,000 for the payment of general unsecured claims under certain
conditions. The Shareholders of the Trust would retain their shares in
accordance with the Declaration of Trust and in accordance with any treatment
which might be set forth in any transaction relating to the issuance of the
Trust's Shares that might be negotiated with ART or other entities.
Counsel for ART has indicated that ART has claims against the Trust
arising from the purported termination of the Revised Merger Agreement, and in
connection therewith, ART has filed a proof of claim in the Trust's bankruptcy
proceedings in the amount of $2,162,000.
On February 3, 1998, the Trust, its trustees, and Lend Lease (its then
advisor) were named as defendants in a purported class action complaint filed by
a shareholder in Massachusetts State court. The complaint sought to enjoin the
Merger and also sought other relief including unspecified damages. This
complaint was dismissed without prejudice in 1999.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
NONE.
14
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
Trading in the Trust's Shares on the New York Stock Exchange ("NYSE")
terminated on May 4, 1998, as the Trust did not meet the NYSE's continued
listing criteria. The Trust's Shares are currently traded on the OTC Bulletin
Board System. As of April 6, 2000, the record number of shareholders of the
Trust was 195. Although, the Trust does not know the exact number of beneficial
holders of its Shares, it believes the number exceeds 1,000.
The following table presents the high and low prices of the Trust's
Shares based on the New York Stock Exchange daily composite transactions for the
period January 1, 1998 through May 4, 1998. From May 4, 1998 the following table
presents the high and low bid prices of the Trust's Shares based on the OTC
Bulletin Board System daily composite transactions which reflect inter-dealer
prices, without retail mark-up, mark-down or commissions and which may not
necessarily represent actual transactions.
<TABLE>
<CAPTION>
HIGH LOW
-------- ------
<S> <C> <C>
Year ended December 31, 1999:
First Quarter $ 0.781 $0.313
Second Quarter 0.469 0.125
Third Quarter 0.250 0.125
Fourth Quarter 0.250 0.021
Year ended December 31, 1998:
First Quarter $ 2.063 $1.000
Second Quarter 1.313 0.250
Third Quarter 1.063 0.625
Fourth Quarter 0.844 0.625
</TABLE>
There were no distributions to shareholders during 1999 and 1998, and the Trust
is prohibited from making any distributions to its shareholders except as may be
approved by the Bankruptcy Court.
15
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA.
The following table sets forth Selected Financial Data for the Trust as
of and for each of the five years in the period ended December 31, 1999. The
information set forth below should be read in conjunction with "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the financial statements appearing elsewhere in this report.
<TABLE>
<CAPTION>
AS OF AND FOR THE YEARS ENDED DECEMBER 31,
------------------------------------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Revenues from rental operations (a) $ 6,150 $ 6,191 $ 6,158 $ 6,174 $ 15,761
Write down of investments in
real estate (b) -- -- -- -- (3,200)
Income (loss) before gain on sales of
real estate (c) (2,979) 150 (1,961) (1,488) (6,575)
Gain on sales of real estate (d) -- -- -- -- 229
Net income (loss) (2,979) 150 (1,961) (1,488) (6,346)
Total assets 45,527 45,102 45,067 46,830 48,209
Long-term obligations:
Mortgage notes payable, net of
imputed interest and discount 45,364 45,374 45,379 45,379 45,712
Shareholders' equity (deficit) (7,811) (4,832) (4,982) (3,021) (1,533)
Per share data (e):
Income (loss) per share:
Income (loss) before gain on sales
of real estate $ (0.31) $ 0.02 $ (0.21) $ (0.16) $ (0.71)
Net income (loss) (0.31) 0.02 (0.21) (0.16) (0.68)
Dividends declared -- -- -- -- --
</TABLE>
(a) The decline in revenues from operations for 1996 is mainly attributable to
the sale of Castleton Park, which accounted for revenues of $9,554,000 for
the year ended December 31, 1995.
(b) A write-down was recorded in 1995 related to the Trust's investment in
Castleton Park to adjust the net investment to the Trust's estimate of net
realizable value. As discussed in Note 2 to the financial statements, the
Trust reviews its investments for impairment on a quarterly basis, and
records write-downs or reserves when appropriate.
(c) The 1998 and 1999 results reflect the cessation of depreciation and
amortization as a result of the Trust's real estate being classified as
"held for sale" as of April 1, 1998.
(d) In 1995, the Trust sold its remaining interest in Castleton Park and
recognized a gain on the sale of $229,000.
(e) Calculation is based on 9,264,344 weighted average Shares outstanding from
1994 through 1997, 9,505,222 weighted average Shares outstanding for 1998,
and 9,632,212 weighted average Shares outstanding for 1999. The Trust had
9,632,212 Shares outstanding as of December 31, 1998 and 1999.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
This discussion should be read in conjunction with the financial
statements and notes that appear immediately following the signatures page.
16
<PAGE>
FINANCIAL CONDITION
LIQUIDITY AND CAPITAL RESOURCES
As discussed in Item 1 under "Mortgage Debt", the Trust's Mortgage Note
Lender and its Term Loan Lender granted the Trust relief through December 15,
1999, from the debt instruments' initial maturity date of December 15, 1995
through a series of extensions and forbearance arrangements. Inasmuch as the
Trust was unable to obtain from its lenders additional extension and forbearance
arrangements on economically acceptable terms, the Trust filed a voluntary
bankruptcy petition on December 14, 1999.
The funding of the Trust's operations, debt service payments, and its
normal working capital needs currently are being provided pursuant to orders of
the Bankruptcy Court which authorize Trust borrowings under a post-petition
secured loan by its lenders, or alternatively, authorize the Trust to use cash
collateral. This funding is based on budgets attached to the orders which permit
the Trust to operate the Mall and to make certain capital expenditures in the
ordinary course of business required to maintain or enhance the value of the
Mall, including tenant allowances associated with leasing activity.
One of the conditions of the Mortgage Note was the establishment of
capital reserve and cash collateral accounts, which are maintained by a
third-party escrow agent and from which expenditures must be approved by the
Mortgage Note Lender. The balances in these accounts at December 31, 1999
amounted to $1,038,000 and $2,322,000, respectively. The Trust believes the
current cash balance in these accounts, coupled with additional cash flows
projected to be generated from operations, will be sufficient to fund the Mall's
operations and capital expenditure requirements through the date of the Mall's
disposition by the Trust.
During 1999, the Trust generated cash flows from operating activities
of $737,000 as compared to $1,597,000 in 1998. This decrease is largely
attributable to certain nonrecurring receipts for certain reimbursements from
ART in accordance with the Revised Merger Agreement ($367,000) and lease
termination fees from a tenant ($200,000) in 1998. The 1998 cash flows from
operating activities represented an increase of $1,365,000 from the $232,000
amount generated in 1997. This increase reflects the timely receipt of real
estate tax ($385,000) and utility income ($288,000) recoveries for 1998, as well
as the effect of the1998 nonrecurring receipts.
Cash flows used in investing activities during 1999, 1998, and 1997
were $622,000, $652,000, and $546,000, respectively. These results reflect the
payment of build out costs and allowances for certain tenants, as well as costs
associated with routine capital items, including roof replacement and parking
lot resurfacing.
Cash flows used in financing activities during 1998 amounted to
$407,000, which represented payments made for loan fees to the Mortgage Note
Lender ($298,000) and the Term Loan Lender ($104,000), and principal payments on
the Term Loan ($5,000). Cash flows used in financing activities during 1999
($10,000) were for principal payments on the Term Loan and in 1997 ($24,000)
were for payments of loan fees to the Term Loan Lender. Payments made on the
Mortgage Note for 1999, 1998 and 1997 were limited to interest payments.
17
<PAGE>
The Trust intends to sell the Mall and, therefore, has classified its
real estate as held for sale at December 31, 1999 and 1998. Accordingly, the
investment in real estate, including deferred leasing costs, is recorded at the
lower of cost or estimated fair market value, less estimated costs to sell.
Although the Trust has entered into a Purchase and Sale Agreement to sell the
Mall for a price of $46,500,000, the closing of the proposed sale transaction is
contingent upon the performance of due diligence procedures to the satisfaction
of the prospective purchaser and Bankruptcy Court approval. The Trust will also
seek Bankruptcy Court approval to sell the Mall at auction for a higher and
better offer, or if a sale transaction does not close, will convey title to the
Mall to the Mortgage Note Lender. In all events, however, the Trust expects to
dispose of the Mall and discontinue Mall operations.
RESULTS OF OPERATIONS
For the year ended December 31, 1999, the Trust reported a net loss of
$2,979,000 ($.31 per share) as compared to net income of $150,000 ($.02 per
share) and a net loss of $1,961,000 ($.21 per share) for the years ended
December 31, 1998 and 1997, respectively.
The Trust's revenues for 1999 were $6,150,000, which represents a
$41,000 decrease from the 1998 amount of $6,191,000. Most of the decrease
represents a decline in percentage rent reflecting decreased or flat tenant
sales. In 1998, however, percentage rents increased by $150,000 from 1997 as a
result of increased sales by percentage-rent-paying tenants at the Mall. In
addition, in 1998 the Trust recognized a non-recurring lease cancellation fee of
approximately $200,000. These increases in income were substantially offset by a
decrease in income in 1998 due to a non-recurring adjustment made in 1997 to
record the recovery of income from one of the Mall's anchor stores.
Consequently, the Trust's revenues in 1998 reflected only a $33,000 increase
from the 1997 revenues of $6,158,000.
Operating expenses (net of reimbursements from tenants) for 1999, 1998
and 1997 were $1,063,000, $769,000, and $1,083,000, respectively. This lower
expense amount in 1998 is primarily due to greater common area maintenance
expense recoveries due to a higher reimbursement ratio for 1998. The higher
reimbursement ratio is attributable to a higher average occupancy ratio at the
Mall as compared to both 1999 and 1997.
No depreciation and amortization expense was recorded in 1999, and such
expense was recorded only for three months of 1998 ($588,000) because the Trust
classified the Mall asset as real estate held for sale effective April 1, 1998.
Interest expense for 1999, 1998, and 1997 was $7,564,000,
$4,219,000, and $4,397,000, respectively. The 1999 increase resulted from the
Trust recording in December, 1999, $3,360,000 of accrued and unpaid interest
at the default rate to the Mortgage Note Lender for all periods after June
15, 1998. This liability resulted from the Trust's failure to pay the
Mortgage Note indebtedness upon the December 15, 1999 forbearance expiration
date. The Trust has been advised that it may have defenses to the Mortgage
Note Lender's claim for default rate interest for all periods prior to
December 15, 1999. There can, however, be no assurance that any such defenses
would be successful. Effective December 15, 1999, the Trust commenced
recording interest expense at the applicable default rates for both the
Mortgage Note and the Term Loan on a current basis. Interest expense
decreased in 1998 compared to 1997 due to lower amortization of deferred
financing costs in 1998 since the majority of these costs were fully
amortized by June 1998. A full year of amortization was recognized during
1997.
18
<PAGE>
Other expenses-net consists of portfolio management fees, other costs
related to the operation of the Trust, and interest income earned on cash
balances.
As discussed in the liquidity section above, the Trust believes that
its existing cash reserves and its anticipated cash flow generated from
operations will be sufficient to meet its operating, capital and monthly debt
service requirements. Due to the accrual of interest expense on the Trust's
mortgage debt at default rates of interest, the Trust expects to continue
reporting net losses through the date of the disposition of the Mall. Further,
the Trust's future results will also be affected by, among other factors, the
professional fees and other administrative expenses of its bankruptcy
proceeding.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Trust generally does not enter into market risk sensitive
instruments for trading purposes. The Trust has entered into debt instruments
that may be affected by changes in interest rates; however, a 10% change in the
fixed and variable interest rate would not have a material effect on the Trust's
financial statements due to the related terms of its debt instruments.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The Registrant's financial statements and supplementary data listed in
Item 14(a) appear immediately following the signatures page.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
In March, 2000, the Trust filed an application in the Bankruptcy Court
for authority to employ Deloitte & Touche LLP ("Deloitte") as auditors,
accountants, and tax consultants. Certain parties in interest filed objections
in the Bankruptcy Court to such employment, and Deloitte subsequently requested
that the Trust withdraw its application to retain Deloitte. On May 18, 2000, the
Trust filed a praecipe to withdraw the Deloitte employment application.
Accordingly, Deloitte has ceased acting as the Trust's independent public
accountants. The Trust has not replaced Deloitte.
PART III
ITEM 10. TRUSTEES OF THE REGISTRANT.
The Trustees, their terms served and their professional
interests outside the Trust are profiled below. The Trustees are elected to
office at the Trust's annual meeting each year.
Sylvan M. Cohen, age 85, has been a Trustee since 1988. Mr. Cohen has
been Chairman and Trustee of Pennsylvania Real Estate Investment Trust, a New
York Stock Exchange-listed real estate investment trust, since 1994, and also
served as its Chief Executive Officer from 1994 to October 1997. He was
President and Trustee since its inception in 1960. Mr. Cohen has been Of Counsel
to
19
<PAGE>
the law firm Drinker Biddle & Reath since 1995. For more than five years prior
thereto, Mr. Cohen was a partner in the Philadelphia law firm of Cohen, Shapiro,
Polisher, Shiekman and Cohen. Mr. Cohen is formerly a director of Fidelity Bank,
Philadelphia, Pennsylvania, and is currently a director of Orleans Homebuilder,
Inc. (formerly the FPA Corporation), an American Stock Exchange-listed real
estate development company, and was a managing trustee of Arbor Property Trust,
a New York Stock Exchange-listed real estate investment trust and successor in
interest to EQK Green Acres, L.P, until it was acquired in December 1997. He
formerly served as President of the National Association of Real Estate
Investment Trusts and the International Council of Shopping Centers.
Alton G. Marshall, age 78, has been a Trustee since the Trust's
inception in 1985. Mr. Marshall has been President of Alton G. Marshall
Associates, Inc. a New York City real estate investment firm since 1971. He was
formerly a Senior Fellow of the Nelson A. Rockefeller Institute of Government in
Albany, New York. He was also Chairman of the Board and Chief Executive Officer
of The Lincoln Savings Bank, FSB from March 1984 through December 1990. From
1971 to 1981, he was President of the Rockefeller Center, Inc., a real estate,
manufacturing and entertainment company. Mr. Marshall was a director of the New
York State Electric & Gas Corp. He previously served as a director of the Hudson
River Trust and as a managing trustee of Arbor Property Trust, until it was
acquired in December 1997. He was an independent partner of Equitable Capital
and Equitable Capital Retirement Fund.
George R. Peacock, age 76, has been a Trustee since 1988. Mr. Peacock
has been sole-owner and President of Carluke, Inc., a real estate investment
consulting firm, since 1988. Mr. Peacock retired from Equitable Real Estate
Investment Management, Inc. ("Equitable Real Estate"), a wholly-owned subsidiary
of The Equitable Life Assurance Society of the United States ("Equitable") in
August 1988 after serving as Chairman and Chief Executive Officer. Mr. Peacock
is a past member of Equitable's Investment Policy Committee. Prior to his
retirement, he was also a Senior Vice President of Equitable for approximately
twelve years. He is also a former director of Equitable Real Estate and was a
managing trustee of Arbor Property Trust until it was acquired in December 1997.
Phillip E. Stephens, age 52, has been a Trustee since 1990. Mr.
Stephens is the President and the Chief Executive Officer of Stephens Property
Group, LLC, a developer of shopping centers in the Southeastern United States.
Mr. Stephens was Chairman and Chief Executive Officer of Compass Retail, Inc., a
subsidiary of Equitable Real Estate, from February 1996 to June 1997 and was
President and Chief Executive Officer from January 1992 to January 1996. Mr.
Stephens was Executive Vice President of the Compass Retail division of
Equitable Real Estate from January 1990 to December 1991. He also served as
President of Equitable Realty Portfolio Management, Inc. ("ERPM"), the Trust's
Advisor and a wholly-owned subsidiary of ERE Yarmouth, Inc. (formerly Equitable
Real Estate), from December 1989 to June 1997. Prior to that date and since
October 1987, he was President of EQK Partners, the predecessor in interest to
ERPM. Prior to that date and since its inception in September 1983, he was
Senior Vice President and subsequently President of EQK Partners. He was also a
managing trustee of Arbor Property Trust until it was acquired in December 1997.
Robert C. Robb, Jr., age 54, has been a Trustee since 1991. Mr. Robb
has been President of and a partner in the management and financial consulting
firm of Lewis, Eckert, Robb & Company since 1981. Mr. Robb is currently a
director of Provident Institutional Funds and
20
<PAGE>
Brynwood Partners, a Trustee of the Medical College of Pennsylvania, Hahnemann
University, and is a former director of Brinks, Inc. of Darien, Connecticut and
PNC Bank, N.A., Pittsburgh, Pennsylvania.
EXECUTIVE OFFICERS OF THE REGISTRANT.
On January 15, 1999, certain officers of the Trust resigned from their
positions. Robert Welanetz resigned as President of the Trust and as a member of
the Board of Trustees and William G. Brown, Jr. resigned as Vice President and
Controller of the Trust. On the same date, Samuel F. Hatcher was elected to
succeed Robert Welanetz as President of the Trust and member of the Board of
Trustees and Don Henry was elected to succeed William G. Brown, Jr. in his
capacities.
On December 13, 1999, Mr. Hatcher resigned as President of the Trust
and as a member of the Board of Trustees, Mr. Henry resigned as Vice President
and Controller, and Pamela P. Griffin resigned as Secretary of the Trust. All of
these officers were also officers and/or employees of Lend Lease, and as
hereinafter discussed, the Trust's advisory agreement with Lend Lease was
terminated on that same date. Effective with these resignations and advisory
agreement termination, the following officers were elected: Gregory R.
Greenfield as President and Chief Executive Officer; William G. Brown, Jr. as
Vice President, Treasurer and Chief Financial Officer; and Linda K. Schear as
Secretary. These officers are associated with Gregory Greenfield & Associates,
Ltd. which was appointed to serve as the Trust's advisor on that date.
Effective January 18, 2000, and concurrently with the appointment of
Newleaf Corporation as the Trust's Advisor, all of the Trust's officers resigned
their positions with the Trust, and the Board of Trustees appointed the current
executive officers of the Trust, each of whom is an officer of Newleaf
Corporation. The term of office of each officer expires at the end of twelve
months or such earlier time as they resign and their respective successor are
named and approved. The following table sets forth the names and positions of
the current executive officers.
<TABLE>
<CAPTION>
Name Position
---- --------
<S> <C>
Lloyd T. Whitaker President and Chief Executive Officer
David H. Crumpton Chief Financial Officer, Vice President and Secretary
</TABLE>
----------------
Lloyd T. Whitaker, age 65, has, since 1987, served as
President and Chief Executive Officer of Newleaf Corporation, the Advisor to the
Trust. Newleaf Corporation is engaged in the business of serving as bankruptcy
trustees, examiners, financial consultants, advisors and business managers for
real estate and other types of business enterprises which are in bankruptcy or
which are otherwise experiencing financial difficulties. Prior to 1987, Mr.
Whitaker was President and Chief Executive Officer of CMEI, Inc. (a publicly
traded real estate investment trust), President of the Office Development and
the Downtown Development Divisions of Cousins Properties Incorporated, and a
partner in an Atlanta, Georgia law firm.
David H. Crumpton, age 52, has been a Principal and Chief Financial
Officer of Newleaf Corporation since May, 1987. Prior to that date and since
March, 1969, he was associated with the accounting firm of Arthur Andersen & Co.
where he was a Principal in its auditing group
21
<PAGE>
and National Coordinator of the firm's real estate accounting and auditing
practice.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 (the "Exchange
Act") requires the Trust's officers and directors and persons who own more than
ten percent of a registered class of the Trust's equity securities
(collectively, the "Reporting Persons") to file reports of ownership and changes
in ownership with the Securities and Exchange Commission and to furnish the
Trust with copies of these reports.
Based on the Trust's review of the copies of these reports received by
it, and written representations received from Reporting Persons, the Trust
believes that all filings required to be made by the Reporting Persons with
respect to transactions from January 1, 1999 through December 31, 1999 were made
on a timely basis, except that Forms 3 for William G. Brown, Jr. and Gregory R.
Greenfield were filed late.
ITEM 11. EXECUTIVE COMPENSATION.
The Trust currently pays each unaffiliated Trustee a fee of $10,000 per
year for serving as a Trustee and $1,000 for each day or portion of a day spent
by a Trustee on the Trust's business, including meetings of the Trustees
(including conference call meetings) and of any committee of Trustees which such
Trustee attends. In addition, the Trust currently reimburses each of the
Trustees for travel and other expenses incurred in connection with their duties
as Trustee of the Trust.
No salaries are paid to the officers of the Trust for acting in such
capacity. The Trust's officers have been provided by the advisors to the Trust.
Reference is made to Item 13 "Certain Relationships and Related Transactions"
hereof which describes the compensation arrangements with advisors.
22
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table shows the beneficial shareholdings as of December 31, 1999
of all persons known by the Trust to be beneficial owners of more than 5% of its
outstanding Shares (based upon filings made by such persons pursuant to Section
13(d) of the Exchange Act), of all Trustees and nominees individually, and of
all Trustees and officers as a group.
<TABLE>
<CAPTION>
Percentage of
Number Outstanding
Name Address of Shares Shares
---- -------- --------- --------------
<S> <C> <C> <C>
Lend Lease Portfolio 3424 Peachtree Road, NE 1,685,556 17.5%
Management, Inc. Suite 800
Atlanta, GA 30326
Sutter Opportunity Fund, LLC 595 Market Street 919,400 9.5%
Suite 2100
San Francisco, CA 94105
Summit Venture, L.P. 717 Morten Avenue 916,900 9.4%
Suite 220
Phoenix, AZ 85020
E.I. duPont de Nemours Wilmington Trust Co. 906,600 9.4%
Co., Inc. Trust Fund 1100 North Market Street
Wilmington, DE 19890
Maurice A. Halperin 2500 North Military Trail 847,100 8.8%
Suite 225
Boca Raton, FL 33431
Sylvan M. Cohen Drinker Biddle & Reath - (2)
Philadelphia National Bldg
1345 Chestnut Street
Philadelphia, PA 19107
Alton G. Marshall 136 East 79th Street - (2)
New York, NY 10021
George R. Peacock Monarch Plaza 1,728(1) (2)
3414 Peachtree Road, NE
Suite 416
Atlanta, GA 30326
Robert C. Robb Lewis, Eckert, Robb and Co. 2,000 (2)
One Plymouth Meeting
Suite 425
Plymouth Meeting, PA 19462
Phillip E. Stephens Seven Piedmont Center 2,055 (2)
Suite 300
Atlanta, GA 30305
All Trustees and Executive 5,783 (2)
Officers as a Group
(7 persons)
</TABLE>
-------------------------------
(1) These Shares are owned by Mr. Peacock's wife and son and Mr. Peacock
disclaims beneficial ownership of these Shares.
(2) The number of Shares represents less than 1% of the outstanding Shares.
23
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Lend Lease Portfolio Management, Inc., ("Lend Lease" and formerly ERE
Yarmouth Portfolio Management, Inc.), a wholly-owned subsidiary of Lend Lease
Real Estate Investments, Inc. (formerly ERE Yarmouth, Inc.), served as the
advisor to the Trust from the Trust's inception until the termination of its
advisory agreement on December 13, 1999. For the year ended December 31, 1999,
Lend Lease earned portfolio management fees in the approximate amount of
$186,000, of which approximately $112,500 was paid currently as described below.
Effective January 1, 1990, Lend Lease agreed to reduce the rate of its
annual portfolio management fees as an accommodation to the Trust's efforts to
reduce its costs of operations. The basis of the fee calculation was changed
from .85% to .425% of the sum of (i) the average daily per Share closing price
of the Trust's Shares, multiplied by the average number of Shares outstanding on
each day and (ii) the average daily outstanding balance of the Trust's long-term
indebtedness. In addition, certain provisions which subordinated the payment of
the fee to a specified dividend distribution were eliminated. Lend Lease agreed
to forgive one-half of the total of $5,440,000 of deferred annual portfolio
management fees owed by the Trust to the Advisor for the years 1985 through
1989. The remaining deferred fees of approximately $2,720,000 were intended to
be paid upon the disposition of the Trust's remaining property, the Mall.
Pursuant to the Mortgage Loan Modification Agreement executed in
December 1995, which extended the maturity date of the Trust's mortgage
indebtedness by one year, to December 15, 1996, and continuing with subsequent
extension and forbearance arrangements as described in "Item 1- Business", Lend
Lease agreed to an additional partial deferral of its fees. The formula for
computing the fee remained unchanged as described above; however, the payment of
fees in excess of $37,500 per quarter was deferred. These additional deferred
fees were intended to be paid to Lend Lease upon the repayment of the Trust's
mortgage indebtedness, either through a refinancing or from an application of
proceeds from the sale of the Mall. In addition, the Trust accrued advisory fees
to Lend Lease for advisory services for the fourth quarter of 1999, none of
which was paid due to the Trust's filing of its bankruptcy petition on December
14, 1999.
Inasmuch as the Shares of the Trust ceased to be traded on a market
with readily available market values on May 4, 1998, the Trustees agreed on
stipulated per Share values to be used for purposes of calculating the portfolio
management fee. These stipulated per Share values were $0.75 per Share for the
period May 4, 1998 through December 31, 1998, $0.37 per Share for the period
January 1, 1999 through June 30, 1999, and $0.15 per Share for the period July
1, 1999 through the December 13, 1999 termination date of the Lend Lease
advisory agreement with the Trust.
In addition to the foregoing advisory fees, Lend Lease earned a
refinancing fee of $50,000 in connection with the December 15, 1996 extension of
debt, which does not become payable until the retirement of the Trust's mortgage
debt.
The aggregate amount of refinancing and advisory fees owed to Lend
Lease at December 31, 1999, including all deferred amounts, was $3,142,741. The
Trust has treated this amount as a general unsecured claim in the Trust's
bankruptcy proceeding.
On December 13, 1999, the Trust entered into an Advisory Agreement with
Gregory
24
<PAGE>
Greenfield & Associates, Ltd. ("Greenfield") whereby Greenfield was appointed
advisor to the Trust. Certain parties in interest raised objections to
Greenfield's appointment as advisor in connection with the Trust's bankruptcy
proceedings due to prior relationships between the Trust and principals of
Greenfield who had previously been officers of the Trust and Lend Lease. As a
consequence, Greenfield resigned as advisor effective January 18, 2000.
Greenfield was paid cash compensation of $25,000 for its advisory services.
Effective January 18, 2000, Newleaf Corporation was appointed as the
Trust's Advisor pursuant to an Advisory Agreement dated January 18, 2000 and an
order of the Bankruptcy Court entered January 25, 2000. Newleaf Corporation is
engaged in the business of serving as bankruptcy trustees, examiners, financial
consultants, advisors and business managers for real estate and other types of
business enterprises which are in bankruptcy or which are otherwise experiencing
financial difficulties. The Newleaf Advisory Agreement provides for the Advisor
to receive monthly cash compensation based on the hourly billing rates of its
principals, but not to exceed a cumulative amount calculated at the rate of
$35,000 per month for the first three months of services, $25,000 per month for
the next six months of services, and $20,000 per month for each month
thereafter. The Advisor is also entitled to earn incentive fees of not more than
$70,000 in connection with the sale of the Mall and $25,000 upon the
consummation of a merger or similar transaction involving the Trust and ART or
other entities.
The Trust has a property management agreement for the management of the
Mall with Jones Lang LaSalle Americas, Inc. (formerly ERE Yarmouth Retail, Inc.,
formerly Compass Retail, Inc and formerly a wholly owned subsidiary of Lend
Lease Real Estate Investments, Inc.) which has been in effect since June 1,
1990. On September 30, 1998, ERE Yarmouth Retail, Inc. was sold to LaSalle
Partners Incorporated, which is not affiliated with the Trust or with Lend
Lease.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8K.
(a) The following documents are filed as part of this report:
1. FINANCIAL STATEMENTS
Balance Sheets at December 31, 1999 and 1998
Statements of Operations for the years ended
December 31, 1999, 1998 and 1997
Statements of Shareholders' Deficit for the years ended December 31,
1999, 1998 and 1997
Statements of Cash Flows for the years ended December 31, 1999, 1998
and 1997
Notes to financial statements
2. FINANCIAL STATEMENT SCHEDULE
Schedule III: Real Estate and Accumulated Depreciation
25
<PAGE>
All other schedules are omitted as the required information is inapplicable or
the information is presented in the financial statements, or the related
notes thereto.
3. EXHIBITS
(2) None.
(3) (a) Form of Amended and Restated Declaration of Trust, as
amended. (2)
(b) Trustees' Regulations, as amended. (2)
(4) Form of certificate for Shares of Beneficial Interest. (1)
(9) None.
(10) (a) Form of Advisory Agreement between the Registrant and EQK
Partners.( 1)
(e) Property management agreement between Salomon Brothers
Peachtree Properties Inc. and Equitable Real Estate
Investment Management, Inc. with respect to
Peachtree-Dunwoody Pavilion.( 1)
(f) Form of property management agreement between the Registrant
and Castleway Management Corp. with respect to Castleton
Commercial Park.( 1)
(k) Mortgage encumbering Harrisburg East Mall in favor of
Continental Assurance Company and related documents.( 1)
(m) Mortgage encumbering Harrisburg East Mall in favor of The
Philadelphia Savings Fund Society and related documents.( 1)
(n) Amended and Restated Zero Coupon Mortgage Note due December
1992 in the principal amount of $45,000,000.( 1)
(o) Mortgage encumbering Harrisburg East Mall in favor of
Salomon Brothers Realty Corp.( 2)
(p) Mortgages encumbering Peachtree-Dunwoody Pavilion in favor
of Salomon Brothers Realty Corp.( 2)
(q) Mortgages encumbering Castleton Commercial Park in favor of
Salomon Brothers Realty Corp.( 2)
(r) Zero Coupon Mortgage Note due December 1992 in the principal
26
<PAGE>
amount of $5,000,000.( 3)
(s) Form of Amendments dated February 4, 1988 to Exhibits 10(o),
10(p) and 10(q).( 3)
(t) Form of Mortgages securing 10(r).( 3)
(u) First Amendment to Advisory Agreement dated as of December
31, 1989.( 4)
(v) Form of property management agreement between Registrant and
Compass Retail, a division of Equitable Real Estate
Investment Management, Inc.( 5)
(w) Agreement of sale dated June 25, 1991 between McCready and
Keene, Inc. and the Registrant.( 6) (x) Agreement for
release of collateral between The Prudential Insurance
Company of America and the Registrant dated August 30,
1991.( 6)
(y) Agreement of sale dated September 23, 1991 between the
Wesleyan Church Corporation and the Registrant.( 6)
(z) Agreement of sale dated June 24, 1992 between Computer
Generation Incorporated and the Registrant.( 7)
(aa) Purchase and Sale Agreement dated October 21, 1992 between
Minneapolis Investment Associates L.P. and the Registrant( 7)
(bb) Second Amended and Restated Note dated as of December 16,
1992 from the Registrant to The Prudential Insurance Company
of America( 7)
(cc) Cash Management and Security Agreement dated as of December
15, 1992, among the Registrant, The Prudential Insurance
Company of America and First Union National Bank of Georgia
( 7)
(dd) Amended and Restated Deed to Secure Debt and Security
Agreement (Peachtree) dated as of December 16, 1992 by
Successor Trustees of the Registrant as Debtor in favor of
The Prudential Insurance Company of America as Secured
Party( 7)
(ee) Amended and Restated Open-End Mortgage and Security
Agreement (Harrisburg) dated as of December 15, 1992 by
Successor Trustees of the Registrant as Debtor in favor of
The Prudential Insurance Company of America as Secured
Party( 7)
27
<PAGE>
(ff) Amended and Restated Mortgage and Security Agreement
(Castleton) dated as of December 15, 1992 by the Registrant
as Debtor in favor of The Prudential Insurance Company of
America as Secured Party( 7) (gg) Absolute Assignment of
Leases and Rents and Rental Collection Agreement (Peachtree)
dated as of December 16, 1992 among Successor Trustees of
the Registrant as Assignor, The Prudential Insurance Company
of America as Assignee and First Union National Bank of
Georgia as Rental Collection Agent( 7)
(hh) Absolute Assignment of Leases and Rents and Rental
Collection Agreement (Harrisburg) dated as of December 16,
1992 among Successor Trustees of the Registrant as Assignor,
The Prudential Insurance Company of America as Assignee and
First Union National Bank of Georgia as Rental Collection
Agent( 7)
(ii) Absolute Assignment of Leases and Rents and Rental
Collection Agreement (Castleton) dated as of December 15,
1992 among the Registrant as Assignor, The Prudential
Insurance Company of America as Assignee and First Union
National Bank of Georgia as Rental Collection Agent( 7)
(jj) Warrant Agreement dated as of December 18, 1992 between the
Registrant and The Prudential Insurance Company of America
( 7)
(kk) Subordination and Intercreditor Agreement dated as of
December 16, 1992 among Provident National Bank, The
Prudential Insurance Company of America and the Registrant
( 7)
(ll) Second Amended and Restated Loan Agreement dated as of
December 16, 1992 from the Registrant to Provident National
Bank( 7)
(mm) Amended and Restated Note dated as of December 16, 1992 from
the Registrant to Provident National Bank( 7)
(nn) Mortgage and Security Agreement (Castleton) dated as of
December 16, 1992 between the Registrant and Provident
National Bank (7)
(oo) Deed to Secure Debt and Security
28
<PAGE>
Agreement (Peachtree) dated as of December 16, 1992 between
the Registrant and Provident National Bank( 7)
(pp) Open-End Mortgage and Security Agreement (Harrisburg) dated
as of December 16, 1992 between the Registrant and Provident
National Bank( 7)
(qq) Assignment of Lessor's Interest in Leases (Castleton) dated
as of December 16, 1992 between the Registrant and Provident
National Bank( 7)
(rr) Assignment of Lessor's Interest in Leases (Peachtree) dated
as of December 16, 1992 between the Registrant and Provident
National Bank( 7)
(ss) Assignment of Lessor's Interest in Leases (Harrisburg) dated
as of December 16, 1992 between the Registrant and Provident
National Bank( 7)
(tt) Assignment of Cash Collateral Account and Security Agreement
dated as of December 16, 1992 between the Registrant and
Provident National Bank( 7)
(uu) Purchase and Sale Agreement dated July 6, 1993 between
Lawrence E. Cooper and the Registrant(8)
(vv) Amendment dated October 1, 1993 to Exhibit 10(cc)(8)
(ww) Amendment dated December 3, 1993 to Exhibits 10(ll) and
10(mm)(8)
(xx) Purchase Agreement for Real Property and Escrow Instructions
(9)
(yy) Note, Mortgage, and Modification agreement dated December
15, 1995 between the Registrant and The Prudential (10)
Insurance Company of America
(zz) Mutual Estoppel and Modification Agreement dated December
15, 1995 between the Registrant and The Prudential Insurance
Company of America (10)
(aaa) Amended Mutual Estoppel and Modification Agreement dated
December 15, 1995 between the Registrant, PNC Bank, National
Association, and The Prudential Insurance Company of America
(10)
(bbb) Extension and Partial Paydown of loan from PNC Bank
National Association, dated December 15, 1995 to EQK
Investors I (10)
29
<PAGE>
(ccc) Second Amendment to Second Amended and Restated Loan
Agreement from PNC Bank National Association dated December
15, 1996 (11)
(ddd) Third Amended and Restated Note from PNC Bank National
Association dated December 15, 1996 (11)
(eee) First Amended Note, Mortgage and Note Modification
Agreement from the Prudential Insurance Company of America
dated December 15, 1996 (11)
(fff) Mutual Estoppel and Modification Agreement dated December
15, 1996 between the Registrant and the Prudential Insurance
Company of America and PNC Bank National Association (11)
(ggg) Agreement and Plan of Merger dated December 23, 1997 by and
among the Registrant , American Realty Trust Inc., ART
Newco, LLC, Basic Capital Management, Inc., Equitable Realty
Portfolio Management Inc., and Compass Retail, Inc. (12).
(hhh) Cost Sharing Agreement dated July 9, 1997 between the
Registrant and American Realty Trust (12).
(iii) Agreement between EQK Realty Investors I and Prudential
Insurance Company of America dated April 9, 1998 (13).
(jjj) Amended and Restated Agreement and Plan of Merger dated
August 25, 1998 by and among the Registrant, American Realty
Trust, Inc., ART Newco, LLC, Basic Capital Management, Inc.,
EQK Realty Investors I, and Lend Lease Portfolio Management,
Inc. (13)
(kkk) Agreement between EQK Realty Investors I and Prudential
Insurance Company of America dated April 8, 1998 (14)
(lll) Third Amendment to Second Amended and Restated Loan
Agreement from PNC Bank National Association dated June 15,
1998 (14)
(mmm) Fourth Amended and Restated Note from PNC Bank Association
dated June 15, 1998 (14)
(nnn) Mutual Estoppel and Modification Agreement dated June 15,
1998 between the Registrant and the Prudential Insurance
Company of America and PNC Bank National Association (14)
(ooo) Disclosure for Confession of Judgment from PNC Bank
National Association dated June 15, 1998 (14)
(ppp) Agreement between EQK Realty Investors I and Prudential
Insurance Company of America dated November 30, 1998 (14)
(qqq) Fourth Amendment to Second Amended and Restated Loan
Agreement from PNC Bank National Association dated December
15, 1998 (14)
(rrr) Fifth Amended and Restated Note from PNC Bank Association
dated December 15, 1998 (14)
(sss) Mutual Estoppel and Modification Agreement dated December
15, 1998 between the Registrant and the Prudential Insurance
Company of America and PNC Bank National Association (14)
(ttt) Disclosure for Confession of Judgment from PNC Bank
National Association dated December 15, 1998 (14)
(uuu) First Amendment to Amended and Restated Agreement and Plan
of
30
<PAGE>
Merger by among the Registrant, American Realty Trust, Inc.,
ART Newco, LLC, Basic Capital Management, Inc., EQK Realty
Investors I, and Lend Lease Portfolio Management, Inc. (15)
(vvv) Agreement between EQK Realty Investors I and Prudential
Insurance Company of America dated June 14, 1999. (16)
(www) Fifth Amendment to Second Amended and Restated Loan
Agreement from PNC Bank National Association dated June 15,
1999. (16)
(xxx) Sixth Amended and Restated Note from PNC Bank National
Association dated June 15, 1999. (16)
(yyy) Mutual Estoppel and Modification Agreement dated June 15,
1999 between the Registrant and the Prudential Insurance
Company of America and PNC Bank Association. (16)
(zzz) Disclosure for Confession of Judgment from PNC Bank
National Association dated June 15, 1999. (16)
(aaaa) EQK Realty Investors I Incumbency Certificate dated June
15, 1999 (16)
(bbbb) First Amendment to Amended and Restated Agreement and Plan
of Merger by and among the Registrant, American Realty
Trust, Inc., ART Newco, LLC, Basic Capital Management, Inc.,
EQK Realty Investors I, and Lend Lease Portfolio Management,
Inc. (17)
(cccc) Advisory Agreement between the Registrant and Newleaf
Corporation dated as of January 18, 2000
(dddd) Agreement for brokerage services between the Registrant
and Granite Partners, L.L.C. dated February 17, 2000
(11) See Note 2 to the Financial Statements.
(12) Inapplicable.
(13) Inapplicable.
(16) Inapplicable.
(18) Inapplicable.
(21) Inapplicable.
(22) Inapplicable.
(23) Inapplicable.
(24) Inapplicable.
(27) Financial Data Schedule.
(28) Inapplicable.
--------------
(1) Incorporated herein by reference to exhibit filed with Registrant's
Registration Statement on Form S-11, File No. 2-93936.
(2) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K dated for fiscal year ended December 31, 1985.
(3) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K dated for fiscal year ended December 31, 1987.
31
<PAGE>
(4) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1989.
(5) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1990.
(6) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1991.
(7) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1992.
(8) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1993.
(9) Incorporated herein by reference to exhibit filed with Registrant's
Form 8-K dated November 22, 1995.
(10) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1995.
(11) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1996.
(12) Incorporated herein by reference to exhibit filed with Registration
Statement on January 6, 1998 on Form S-4 filed by American Realty
Trust, Inc. (Registration Statement Number 333-43777)
(13) Incorporated herein by reference to exhibit filed with Registration
Statement on September 3, 1998 on Amendment #2 to form S-4 filed by
American Realty Trust, Inc. (Registration Statement Number 333-43777)
(14) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-K for fiscal year ended December 31, 1998.
(15) Incorporated herein by reference to exhibit 99.8 filed with
Registration Statement on April 23, 1999 on Amendment #5 to form S-4
filed by American Realty Trust, Inc. (Registration Statement Number
333-43777).
(16) Incorporated herein by reference to exhibit filed with Registrant's
Form 10-Q for the quarterly period ended June 30, 1999.
(17) Incorporated herein by reference to exhibit filed with Registration
Statement on July 1, 1999 on Amendment #7 to form S-4 filed by
American Realty Trust, Inc. (Registration Statement Number 333-43777).
32
<PAGE>
---------------
(b) Reports on Form 8-K
A Report on Form 8-K was filed by the Trust on December 29, 1999
regarding its filing of a voluntary petition for reorganization in the United
States Bankruptcy Court for the Middle District of Pennsylvania on December 14,
1999.
(c) See paragraph (a) 3. above
(d) See paragraph (a) 2. above
33
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, on the 5th day of
June, 2000.
EQK Realty Investors I
By: /s/LLOYD T. WHITAKER
--------------------------------
LLOYD T. WHITAKER
PRESIDENT (PRINCIPAL
EXECUTIVE OFFICER)
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed on June 5, 2000 by the following persons on
behalf of the Registrant and in the capacities indicated.
SIGNATURES TITLE
---------- -----
/s/LLOYD T. WHITAKER President (Principal Executive Officer)
-------------------------------
Lloyd T. Whitaker
/s/DAVID H. CRUMPTON Vice President (Principal Financial and
------------------------------- Accounting Officer) and Secretary
David H. Crumpton
/s/SYLVAN M. COHEN Trustee
-------------------------------
Sylvan M. Cohen
/s/ALTON G. MARSHALL Trustee
-------------------------------
Alton G. Marshall
/s/GEORGE R. PEACOCK Trustee
-------------------------------
George R. Peacock
/s/ROBERT C. ROBB, JR. Trustee
-------------------------------
Robert C. Robb, Jr.
/s/PHILLIP E. STEPHENS Trustee
-------------------------------
Phillip E. Stephens
34
<PAGE>
EQK REALTY INVESTORS I
BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
December 31, December 31,
1999 1998
------------ ----------
ASSETS (UNAUDITED--
SEE NOTE1)
<S> <C> <C>
Real estate held for sale $ 40,030 $ 39,360
Cash and cash equivalents:
Restricted cash, held in escrow under Cash Management Agreement 3,360 3,390
Operating cash 606 471
Accounts receivable and other assets (net of allowance of $5
and $67, respectively) 1,531 1,881
------------ ----------
TOTAL ASSETS $ 45,527 $ 45,102
============ ==========
LIABILITIES AND DEFICIT IN SHAREHOLDERS' EQUITY
Liabilities:
Mortgage note principal payable $ 43,794 $ 43,794
Term loan principal payable 1,570 1,580
Accrued interest on mortgage note and term loan 3,641 167
Accounts payable and other liabilities (including amounts due to
Lend Lease of $3,143 and $3,069, respectively) 4,333 4,393
------------ ----------
53,338 49,934
============ ==========
Commitments and Contingencies (Note 7)
Deficit in Shareholders' Equity:
Shares of beneficial interest, without par value: 10,055,555 shares
authorized, 9,632,212 shares issued and outstanding
in 1999 and 1998 135,875 135,875
Accumulated deficit (143,686) (140,707)
------------ ----------
(7,811) (4,832)
------------ ----------
TOTAL LIABILITIES AND DEFICIT IN SHAREHOLDERS' EQUITY $ 45,527 $ 45,102
============ ==========
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
35
<PAGE>
EQK REALTY INVESTORS I
STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Years Ended December 31,
1999 1998 1997
---------------------------------------------------------------------
(UNAUDITED--
SEE NOTE1)
<S> <C> <C> <C>
Revenues from rental operations $ 6,150 $ 6,191 $ 6,158
Operating expenses, net of tenant
reimbursements 1,063 769 1,083
Depreciation and amortization 0 588 2,181
---------------------------------------------------------------------
Income from rental operations 5,087 4,834 2,894
Interest expense 7,564 4,219 4,397
Other expenses, net of interest income 502 465 458
---------------------------------------------------------------------
Net income (loss) ($2,979) $ 150 ($1,961)
=====================================================================
Net income (loss) per share ($ 0.31) $ 0.02 ($ 0.21)
=====================================================================
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
36
<PAGE>
EQK REALTY INVESTORS I
STATEMENTS OF SHAREHOLDERS' DEFICIT
<TABLE>
<CAPTION>
Number of Shares of
Shares Issued Beneficial Accumulated
and Outstanding Interest Deficit Total
--------------------------------------------------------------------------------
(In thousands, except share data)
<S> <C> <C> <C> <C>
Balance, December 31, 1996 9,264,344 $ 135,875 ($138,896) ($3,021)
--------------------------------------------------------------------------------
Net loss -- -- (1,961) (1,961)
Balance, December 31, 1997 9,264,344 135,875 (140,857) ($4,982)
--------------------------------------------------------------------------------
Shares Issued 367,868 -- -- --
Net income -- -- 150 150
Balance, December 31, 1998 9,632,212 135,875 (140,707) ($4,832)
--------------------------------------------------------------------------------
(Unaudited--see Note1)
Net loss -- -- (2,979) (2,979)
Balance, December 31, 1999 9,632,212 $ 135,875 ($143,686) ($7,811)
================================================================================
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
37
<PAGE>
EQK REALTY INVESTORS I
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Years ended December 31,
1999 1998 1997
---------------------------------------------------------------------------------------------
(UNAUDITED--
SEE NOTE1)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) ($2,979) $ 150 ($1,961)
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Depreciation, amortization and property write-off (48) 588 2,181
Amortization of deferred financing costs 71 186 351
Changes in assets and liabilities:
Increase (decrease) in accounts payable, other
liabilities and accrued interest 3,414 252 198
(Increase) decrease in accounts receivable
and other assets 279 421 (537)
---------------------------------------------------------------------------------------------
Net cash provided by operating activities 737 1,597 232
---------------------------------------------------------------------------------------------
Cash flows from investing activities:
Additions to real estate investments (622) (652) (546)
---------------------------------------------------------------------------------------------
Net cash used in investing activities (622) (652) (546)
---------------------------------------------------------------------------------------------
Cash flows from financing activities:
Scheduled repayments of debt (10) (5) --
Payment of deferred financing costs -- (402) (24)
---------------------------------------------------------------------------------------------
Net cash used in financing activities (10) (407) (24)
---------------------------------------------------------------------------------------------
Increase (decrease) in cash and cash equivalents 105 538 (338)
Cash and cash equivalents
beginning of year 3,861 3,323 3,661
---------------------------------------------------------------------------------------------
Cash and cash equivalents
end of year $ 3,966 $ 3,861 $ 3,323
=============================================================================================
Supplemental disclosure of cash flow information:
Interest paid $ 4,019 $ 4,058 $ 4,022
=============================================================================================
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
38
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
NOTE 1: DESCRIPTION OF BUSINESS
EQK Realty Investors I, a Massachusetts business trust (the "Trust"), was
formed pursuant to an Amended and Restated Declaration of Trust dated
February 27, 1985, as amended on March 5, 1986, to acquire certain
income-producing real estate investments. Commencing with the period
beginning April 1, 1985, the Trust qualified for and elected real estate
investment trust ("REIT") status under the applicable provisions of the
Internal Revenue Code. On December 14, 1999, the Trust filed a voluntary
petition in the United States Bankruptcy Court for the Middle District of
Pennsylvania (the "Bankruptcy Court") because the Trust was unable to repay
certain mortgage indebtedness upon the December 15, 1999 expiration date of
forbearance and extension agreements with its lenders. The Trust is now
operating as a "debtor-in-possession" pursuant to Chapter 11 of the U.S.
Bankruptcy Code. On April 10, 2000, the Trust and the Mortgage Note Lender
(as hereinafter defined) filed a Joint Plan of Reorganization in the
Bankruptcy Court.
At December 31, 1999 and 1998, the Trust's remaining real estate investment
is Harrisburg East Mall (the "Mall"), a regional shopping center in
Harrisburg, Pennsylvania, which is currently being actively marketed and
held for sale.
The Declaration of Trust provides for the Trust's existence and a maximum
holding period for its real estate investments of 14 years. The Declaration
of Trust further provides that this 14-year term may be extended by up to
two years upon the recommendation of the Trustees and the affirmative vote
of a majority of its shareholders. At a Special Meeting of Shareholders on
February 23, 1999, the shareholders approved a two-year extension of the
Trust's life from its initial maturity date of March 5, 1999 to March 5,
2001.
Effective December 23, 1997, the Trust entered into an Agreement and Plan
of Merger (the "Merger Agreement"), pursuant to which an affiliate of
American Realty Trust, Inc. ("ART") agreed to merge with and into the Trust
(the "Merger"), with the Trust being the surviving entity. The Merger
contemplated, among other things, a 20-year extension of the life of the
Trust.
The Merger Agreement was amended on August 25, 1998 and further amended on
April 22, 1999 and June 4, 1999, (the "Revised Merger Agreement") to
provide for, among other matters, the right of the Trust to sell the Mall
and distribute proceeds of such sale to the Trust's shareholders prior to
completing the Merger and a corresponding reduction in the Merger
consideration to be paid to the Trust's shareholders.
The Revised Merger Agreement provided for Merger consideration to be
comprised entirely of ART Series F Cumulative Convertible Preferred Stock
with a par value of $2.00 per share and a liquidation value of $10.00 per
share (the "ART Preferred Shares"). The Revised Merger Agreement provided
for the Merger to be effected by (i) ART's acquisition of 4,376,056 Shares
held by four EQK shareholders (the "Selling Shareholders") and (ii) ART's
receipt of 673,976 shares newly issued by the Trust (which, together with
Shares currently outstanding, constitutes
39
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
"EQK Shares"), the combined effect of which would give ART an approximate
49% interest in EQK. The Selling Shareholders would receive for each EQK
Share sold 0.030 of an ART Preferred Share with a corresponding liquidation
value of $0.30 per EQK Share sold. The remaining shareholders would be
entitled to retain their Shares at the time of the Merger, but would be
compensated for the dilution in their percentage ownership interest through
the receipt of 0.014 of an ART Preferred Share with a corresponding
liquidation value of $0.14 per EQK Share held. In addition, ART intended
(but was not legally obligated) to acquire the remaining EQK Shares from
such other shareholders at some time after the third anniversary of the
consummation of the Merger for not less than 0.0486 of an ART Preferred
Share with a liquidation value of $0.486 for each EQK Share tendered.
According to the terms of the Revised Merger Agreement, upon completion of
the sale of the Mall and receipt of shareholder approval, the Merger would
be completed. Because the Merger was not completed by December 15, 1998,
the Revised Merger Agreement became terminable by either ART or the Trust..
In view of the Trust's bankruptcy filing, the Trust will not be able to
consummate the Merger in accordance with the terms of the Revised Merger
Agreement nor to make any distributions to its shareholders without
Bankruptcy Court approval. Although management has had continuing
discussions with representatives of ART on terms and conditions of a
transaction with ART and/or its affiliates, no assurances can be provided
that a new agreement will be reached, or if reached, would be approved by
the Bankruptcy Court. See "Note 7-Commitments and Contingencies."
Trading in the Trust's Shares on the New York Stock Exchange ("NYSE")
terminated on May 4, 1998, as the Trust did not meet the NYSE's continued
listing criteria. The Trust's Shares are currently traded on the OTC
Bulletin Board System.
The Trust's financial statements for 1998 and 1997 were previously audited
by Deloitte & Touche LLP ("Deloitte") which served as the Trust's
independent accountants. In March 2000, the Trust filed an application in
the Bankruptcy Court for authority to employ Deloitte as its independent
accountants, including serving as auditors of its 1999 financial
statements. Certain parties in interest filed objections in the Bankruptcy
Court to such employment, and Deloitte subsequently requested that the
Trust withdraw its application to retain Deloitte. On May 18, 2000, the
Trust filed a praecipe to withdraw the Deloitte employment application.
Accordingly, Deloitte has ceased acting as the Trust's independent public
accountants, and the 1999 financial statements are unaudited. Furthermore,
the Trust has not received a currently dated auditors' report with respect
to the financial statements for 1998 and 1997 that were previously audited
by Deloitte.
40
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
CAPITALIZATION, DEPRECIATION AND AMORTIZATION
Property additions are recorded at cost. Costs directly associated with
major renovations and improvements, including interest on funds borrowed to
finance construction, are capitalized to the point of substantial
completion. Costs incurred in connection with the execution of a new lease
including leasing commissions and costs associated with the acquisition or
buyout of existing leases and related legal fees are deferred and amortized
over the term of the new lease.
Until April 1, 1998, depreciation of real estate investments was provided
on a straight-line basis over the estimated useful lives of the related
assets, ranging generally from 5 to 40 years. Tenant improvements were
amortized over their estimated useful lives, which did not exceed the terms
of the respective tenant leases. Intangible assets were amortized on a
straight-line basis over their estimated useful lives. The Trust
discontinued recording depreciation and amortization expense on its
investment in real estate when the investment was classified as "real
estate held for sale" on April 1, 1998.
Deferred financing costs are included in accounts receivable and other
assets on the Balance Sheets. Deferred financing costs are amortized over
the life of the related debt and such amortization is included in interest
expense on the Statements of Operations.
VALUATION OF REAL ESTATE
At December 31, 1999 and 1998, the investment in real estate was recorded
at cost less accumulated depreciation through April 1, 1998. In accordance
with Statement of Financial Accounting Standards No.121, "ACCOUNTING FOR
THE IMPAIRMENT OF LONG-LIVED ASSETS AND FOR LONG-LIVED ASSETS TO BE
DISPOSED OF," the Trust considers, on a quarterly basis, whether events or
changes in circumstances indicate that the carrying amount of its real
estate investment may not be recoverable based on estimates of future
undiscounted cash flows without interest expense. In the event such
projected undiscounted future cash flows should be less than the
depreciated cost of the property, the investment in real estate would be
written down to its estimated fair market value.
REVENUE RECOGNITION
Minimum rents are recognized on a straight-line basis over the term of the
related leases. Percentage rents, which are earned based on specified
percentages of tenants' sales, are recognized on an accrual basis.
NET INCOME (LOSS) PER SHARE
The net income (loss) per Share calculation is based on the weighted
average number of Shares outstanding during the year, which was 9,632,212
for 1999, 9,505,222 for 1998 and 9,264,344
41
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
for 1997.
On March 19, 1998, The Prudential Insurance Company of America (the
"Mortgage Note Lender") exercised warrants issued in 1992 for 367,868
Shares of the Trust at $.0001 per Share. (See Note 3.) Such Shares were
issued to the Mortgage Note Lender on May 7, 1998, increasing the total
number of issued and outstanding Shares of the Trust to 9,632,212. As such,
these Shares were included in the net income per share calculation for 1999
and 1998. In 1997, the warrants, which were considered common share
equivalents, were not included in the net loss per Share calculation since
the effect on such calculation was anti-dilutive.
INCOME TAXES
The Trust has complied with all applicable provisions established by the
Internal Revenue Code for maintaining its REIT status. Accordingly, no
income tax provision or benefit has been recognized in the accompanying
financial statements.
CASH EQUIVALENTS
Cash equivalents include short-term investments with a maturity of three
months or less.
FAIR VALUES OF FINANCIAL INSTRUMENTS
The Trust values its financial instruments as required by Statement of
Financial Accounting Standards No. 107, "DISCLOSURE ABOUT FAIR VALUES OF
FINANCIAL INSTRUMENTS". Based on rates currently available to the Trust for
comparable financial instruments, the Trust believes the carrying amounts
of cash and cash equivalents, the Mortgage Note and the Term Loan
approximate fair value.
RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform to the current
year presentation.
MANAGEMENT ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities at the date of the
financial statements, and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
NOTE 3: MORTGAGE DEBT AND RESTRUCTURING ACTIVITIES
The Trust has a "Mortgage Note" obligation with the Mortgage Note Lender,
which had an original maturity date of December 15, 1995. The principal
balance of the Mortgage Note as of December 31, 1999 and 1998 was
$43,794,000. The stated terms of the Mortgage Note provide
42
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
for monthly payments of interest only accruing at the rate of 8.88% per
annum ($324,000 per month).
As part of a 1992 debt restructuring, the Trust entered into a Cash
Management Agreement with the Mortgage Note Lender and assigned all lease
and rental receipts to the Mortgage Note Lender as additional collateral.
Pursuant to this agreement, a third-party escrow agent was appointed to
receive all rental payments from tenants, to deposit such funds in a cash
collateral account, and to fund monthly operating expenses in accordance
with a budget approved by the Mortgage Note Lender. The Cash Management
Agreement also provides for the establishment of a capital reserve account,
which is maintained by the escrow agent. Disbursements from this account,
which is funded each month from any excess operating cash flow, are limited
to capital expenditures approved by the Mortgage Note Lender. As of
December 31, 1999, the third-party escrow agent held, in trust, cash
balances of $2,322,000 in the cash collateral account and $1,037,000 in the
capital reserve account.
Under the terms of the 1992 debt restructuring transactions, the Mortgage
Note Lender received warrants to purchase 367,868 Shares of the Trust at
$.0001 per share. The Mortgage Note Lender exercised the warrants in 1998
and owns 367,868 of the Trust's Shares at December 31, 1999 and 1998. (See
Note 2.)
The Trust also has a "Term Loan" obligation with PNC Bank N.A. ("Term Loan
Lender") in place since December 15, 1992, which had an original principal
balance of $2,859,000. The Term Loan is collateralized by a subordinate
lien on the Mall. The principal balance of the Term Loan was $1,570,000 and
$1,580,000, respectively, as of December 31, 1999 and 1998. The stated
terms of the Term Loan provide for an annual pay rate of 8.88%, but an
annual accrual interest at a rate that re-sets periodically. The accrual
interest rate is computed at the Trust's discretion at either 2 5/8% above
the Euro-Rate (as defined) or 1 1/8% above the Prime Rate (as defined). The
accrual rate in effect as of March 15, 2000 was 8.90%. The excess of the
interest accrued over the interest paid is included in the principal
balance of the Term Loan in the accompanying Balance Sheets.
EXTENSIONS OF DEBT
The Trust's Mortgage Note Lender and Term Loan Lender agreed to extensions
of the maturity dates of the loans through June 15, 1998. Following the
June 15, 1998 scheduled maturity date, the Mortgage Note Lender granted
three six-month forbearance arrangements (through December 15, 1998, then
through June 15, 1999, and then through December 15, 1999) wherein it
agreed not to exercise remedies for non-payment of the outstanding
principal balance. The Term Loan Lender also granted three six-month
extensions of its maturity dates so as to coincide with such forbearance
periods. The forbearance and extension arrangements were conditioned upon,
among other things, the Trust continuing to make timely debt service
payments in monthly amounts equal to those amounts stipulated in prior debt
extension agreements, as set forth below.
In consideration for the extension of the maturity date of the Mortgage
Note through June 15, 1998, the Trust paid an up-front application fee of
$165,000 and agreed to pay a back-end fee
43
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
of $272,900, plus interest thereon at the contract rate of 8.88% at
maturity. On June 15, 1998, the Trust paid the back-end fee plus interest
in the aggregate amount of $309,200 to the Mortgage Note Lender. In
consideration for the extension of the maturity date of the Term Loan the
Trust agreed to pay an extension fee of $23,800 in 1997 and paid additional
loan fees of $88,100 to the Term Loan Lender on June 15, 1998.
In consideration for the extension of the forbearance agreement relating to
the Mortgage Note through June 15, 1999 and December 15, 1999, the Trust
paid extension fees of $25,000 for each extension. In consideration for the
extension of the maturity date of the Term Loan through June 15, 1999 and
December 15, 1999, the Trust paid extension fees of $8,000 and $15,700,
respectively.
The Trust's expiration date of its final forbearance and extension
arrangements was December 15, 1999. Inasmuch as the Trust was unable to
obtain from its lenders additional forbearance and extension arrangements
on economically acceptable terms, the Trust filed a voluntary bankruptcy
petition on December 14, 1999.
The Mortgage Note Lender has asserted that it is entitled to be paid
interest at the default rate (which is 5.04% in excess of the stated 8.88%
stated rate) for all periods following June 15, 1998, due to the Trust's
failure to pay the Mortgage Note on the December 15, 1999, expiration date
of the forbearance agreement. The Term Loan Lender may assert that it is
likewise entitled to default rate interest at 5.00% in excess of the stated
Term Loan Rate from the December 15, 1999, extended maturity date of the
Term Loan. Accordingly, the Trust has recorded accrued and unpaid interest
in the Balance Sheet as of December 31, 1999, at amounts which include
$3,467,000 for the accrual of default rate interest for such periods. The
Trust has been advised that it may have defenses to the Mortgage Note
Lender's claim for default rate interest for all periods prior to
December 15, 1999. There can, however, be no assurance that any such
defenses would be successful.
NOTE 4: LEASING ARRANGEMENTS
The Trust leases shopping center space in the Mall generally under
non-cancelable operating leases, some of which contain renewal options. The
shopping center leases generally provide for minimum rentals, plus
percentage rentals based upon specified percentages of the tenant retail
store sales. Percentage rentals amounted to $245,000, $272,000, and
$122,000 for the years ended December 31, 1999, 1998, and 1997,
respectively. In addition, the tenants pay certain utility charges to the
Trust. In most leases, tenants reimburse their proportionate share of real
estate taxes and common area expenses. Recoveries of common area and real
estate tax expenses amounted to $2,591,000, $2,418,000, and $2,299,000 for
the years ended December 31, 1999, 1998, and 1997, respectively.
44
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
Future minimum rentals under existing, non-cancelable leases at December
31, 1999, are as follows:
<TABLE>
<CAPTION>
YEARS ENDING DECEMBER 31, AMOUNT
------------------------- -------------
<S> <C>
2000 $4,804,000
2001 4,051,000
2002 3,649,000
2003 3,326,000
2004 2,796,000
Thereafter 7,457,000
-------------
$ 26,083,000
=============
</TABLE>
The Limited Inc. operates seven stores at the Mall. Revenues from these
tenants represented approximately 13.7%, 14.2% and 13.0% of the Mall's
total revenues in 1999, 1998 and 1997, respectively. No other individual
tenant, or group of affiliated tenants, contributed more than 10% to the
Mall's total revenues in any of the three years in the period ended
December 31, 1999.
Prior to 1998, due to the temporary closure of two of the anchor stores
operating at the Mall, certain tenants exercised the right, as provided for
under co-tenancy provisions set forth in their respective leases, to pay
percentage rent in lieu of fixed minimum rents which amounted to $228,000
for the years ended December 31, 1997. The rental payment obligations of
substantially all of these tenants reverted back to fixed minimum rent upon
the March 10, 1997 opening of a Lord & Taylor department store at the Mall.
NOTE 5: ADVISORY AND MANAGEMENT AGREEMENTS
ADVISORY AGREEMENTS
Lend Lease Portfolio Management, Inc. ("Lend Lease" and formerly ERE
Yarmouth Portfolio Management, Inc.), a wholly owned subsidiary of Lend
Lease Real Estate Investments, (formerly ERE Yarmouth, Inc.) served as
advisor to the Trust from the Trust's inception until the termination of
its advisory agreement on December 13, 1999. The advisor makes
recommendations to the Trust concerning investments, administration and
day-to-day operations.
As of December 31, 1989, the payment of portfolio management fees of
$5,440,000 payable to Lend Lease had been deferred in accordance with
subordination provisions contained in the original advisory agreement.
Pursuant to the amended advisory agreement, Lend Lease forgave one-half, or
$2,720,000, of the deferred balance. The remaining deferred fees of
$2,720,000 were intended to be paid upon the disposition of the Trust's
remaining property, the Mall.
Under the terms of the advisory agreement with Lend Lease, as amended in
December 1989,
45
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
Lend Lease was entitled to a management fee based on the average daily per
share price of the Trust's shares plus the average daily balance of
outstanding mortgage indebtedness. Such fee was calculated using an annual
factor of 42.5 basis points (0.425%) and generally was payable monthly.
Inasmuch as the Shares of the Trust ceased to be traded on a market with
readily available market values on May 4, 1998, the Trustees agreed on
stipulated per Share values to be used for purposes of calculating the
portfolio management fee. These stipulated per share values were $0.75 per
share for the period of May 4, 1998 through December 31, 1998, $0.37 per
share for the period January 1, 1999 through June 30, 1999, and $0.15 per
share for the period July 1, 1999 through the December 13, 1999 termination
date of the Lend Lease advisory agreement with the Trust.
Commencing with a December, 1995 extension of mortgage debt, the Mortgage
Note Lender requested, and the Advisor agreed to, a partial deferral of
payment of its fee. Although the fee continued to be accrued and computed
in accordance with the formula described above, cash payments to Lend Lease
were limited to $37,500 per quarter. These additional deferred fees were
intended to be paid to Lend Lease upon the repayment of the Mortgage Note.
In addition to the foregoing, Lend Lease earned a refinancing fee of
$50,000 in connection with a December, 1996 extension of debt, which fee
does not become payable until the retirement of the Trust's mortgage debt.
For the years ended December 31, 1999, 1998 and 1997, accrued portfolio
management fee expense to Lend Lease amounted to $186,195, $232,000, and
$242,000, respectively. The aggregate amount of all refinancing and
advisory fees due to Lend Lease at December 31, 1999, including all
deferred amounts, was $3,142,741. The liability for these fees is included
in "accounts payable and other liabilities" on the Balance Sheets, and the
Trust has treated this amount as a general unsecured claim in the Trust's
bankruptcy proceeding.
On December 13, 1999, the Trust entered into an Advisory Agreement with
Gregory Greenfield & Associates, Ltd. ("Greenfield"). Certain parties in
interest raised objections to Greenfield's appointment as advisor in
connection with the Trust's bankruptcy proceedings due to prior
relationships between the Trust and principals of Greenfield who had
previously been officers of the Trust and Lend Lease. As a consequence,
Greenfield resigned as the Trust's advisor effective January 18, 2000.
Greenfield was paid cash compensation of $25,000 for its advisory services.
Effective January 18, 2000, Newleaf Corporation was appointed as the
Trust's Advisor pursuant to an Advisory Agreement dated January 18, 2000
and an order of the Bankruptcy Court entered January 25, 2000. The Newleaf
Advisory Agreement provides for the Advisor to receive monthly cash
compensation based on the hourly billing rates of its principals, but not
to exceed a cumulative amount calculated at the rate of $35,000 per month
for the first three months of services, $25,000 per month for the next six
months of services, and $20,000 per month for each month thereafter. The
Advisor is also entitled to earn incentive fees of not more than $70,000
46
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
in connection with the sale of the Mall and $25,000 upon the consummation
of a merger or similar transaction involving the Trust and ART or other
entities.
PROPERTY MANAGEMENT AGREEMENTS
The Trust has a property management agreement with Jones Lang LaSalle
Americas, Inc. (the "Manager" and formerly ERE Yarmouth Retail, Inc.,
formerly Compass Retail, Inc. and formerly a wholly-owned subsidiary of
Lend Lease Real Estate Investments, Inc.), for the on-site management of
the Mall. On September 30, 1998, Lend Lease Real Estate Investments, Inc.
sold the Manager to LaSalle Partners, Incorporated ("LaSalle"), which is
not affiliated with the Trust or Lend Lease.
Management fees paid to the Manager are generally based upon a percentage
of rents and certain other charges. The Manager earned management fees of
$302,000, $316,000, and $307,000 for the respective years ended December
31, 1999, 1998 and 1997.
NOTE 6: SHARE OWNERSHIP
In connection with a debt restructuring in December 1992, the Trust issued
1,675,000 previously repurchased Shares to Lend Lease for $6,700,000, or
$4.00 per Share. In total at December 31, 1999 and 1998, Lend Lease owned
1,685,556 Shares, or 17.5% of the total Shares outstanding. The Trust has
available for re-issuance an additional 423,343 shares previously
repurchased. Any issuance of shares in excess of the shares previously
repurchased would require Bankruptcy Court approval and possibly
shareholder approval.
NOTE 7: COMMITMENTS AND CONTINGENCIES
On February 3, 1998, the Trust, its trustees, and its Advisor were named as
defendants in a purported class action complaint filed by a shareholder in
Massachusetts State court. The complaint sought to enjoin the Merger and
also sought other relief including unspecified damages. This complaint was
dismissed without prejudice in 1999.
Counsel for ART has indicated that ART has claims against the Trust arising
from the purported termination of the Revised Merger Agreement, and in
connection therewith, ART has filed a proof of claim in the Trust's
bankruptcy proceedings in the amount of $2,162,000.
NOTE 8: JOINT PLAN OF REORGANIZATION
On April 10, 2000, the Trust and the Mortgage Note Lender filed a Joint
Plan of Reorganization (the "Plan") in the Bankruptcy Court. The Plan
provides for the allowance of a secured claim of the Mortgage Note Lender
in the amount of approximately $47,478,000 plus legal fees, which amount
includes accrued and unpaid interest of approximately $3,360,000 calculated
at the default rate from June 15, 1998 to the December 14, 1999 bankruptcy
petition date. The Plan further provides that the Mortgage Note Lender will
waive its entitlement to default rate interest if, by certain specified
dates in July, 2000: (a) a Plan confirmation order is entered by the
47
<PAGE>
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
Bankruptcy Court or the Mall is sold pursuant to order of the Bankruptcy
Court; (b) the general unsecured creditors (including Lend Lease) and the
Term Loan Lender vote to accept the Plan; and (c) the closing of a sale of
the Mall takes place or the Mortgage Note Lender is conveyed title to the
Mall.
Upon the closing of the sale or conveyance of the Mall, the Plan provides
that the Mortgage Note Lender will receive payment of its secured claim
first from the restricted cash accounts held in trust by the escrow agent
pursuant to the Cash Management Agreement and secondly from the sales
proceeds of the Mall. The Trust will deliver to an escrow agent a deed in
lieu of foreclosure in favor of the Mortgage Note Lender which shall be
released only in the event of a default by the Trust under the terms of the
Plan or the Trust's failure to meet certain July, 2000, payment deadlines
(unless extended). If the proceeds from the proposed sale of the Mall are
sufficient to pay all of the Trust's claims in full, the Plan provides that
the Mortgage Note Lender will be entitled to a $200,000 administrative and
forbearance fee.
Under the Plan, the Term Loan Lender will be paid its secured claim from
the proceeds remaining from the sale of the Mall, after payment of the
Mortgage Note. To the extent that the Term Loan is not paid in full from
such proceeds, then the deficiency will be treated as a general unsecured
claim. General unsecured claims will share pro rata in the Trust's
remaining funds after payment of administrative expenses, certain priority
tax claims, and secured claims; provided, however, the Mortgage Note Lender
has agreed to fund up to $750,000 for the payment of general unsecured
claims under certain conditions. The Shareholders of the Trust would retain
their shares in accordance with the Declaration of Trust and in accordance
with any treatment which might be set forth in any plan of merger which
might be negotiated with ART or other entities.
48
<PAGE>
NOTE 9: SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
The following is a summary of selected quarterly financial data for the
years ended December 31, 1999 and 1998:
<TABLE>
<CAPTION>
QUARTER ENDED
-----------------------------------------------------------------
1999 MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
---- --------- -------- ------------- ------------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C>
Revenues from rental operations $ 1,612 $ 1,519 $ 1,454 $ 1,565
Income from rental operations 1,479 1,164 1,322 1,122
Net income (loss) (1) (2) 347 42 179 (3,547)
Net income (loss) per share (2) .04 .00 .02 (.37)
</TABLE>
<TABLE>
<CAPTION>
QUARTER ENDED
----------------------------------------------------------------
1998 MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
---- --------- -------- ------------- ------------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C>
Revenues from rental operations $ 1,553 $ 1,337 $ 1,619 $ 1,682
Income from rental operations 760 968 1,429 1,677
Net income (loss) (1) (335) (145) 282 348
Net income (loss) per share (.04) (.02) .03 .05
</TABLE>
(1) The 1999 and 1998 results reflect the cessation of depreciation and
amortization of the Mall's assets as a result of the Trust's real
estate being classified as "held for sale" as of April 1, 1998.
(2) The quarter ended December 31, 1999, reflects the recording of default
rate interest on the Mortgage Note from June 15, 1998, and the Term
Loan from December 15, 1999, in the total amount of $3,467,000.
49
<PAGE>
FINANCIAL STATEMENT SCHEDULE
DECEMBER 31, 1999
(IN THOUSANDS)
SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION (5)--(UNAUDITED)
<TABLE>
<CAPTION>
Cost
Capitialized Gross Amount
Subsequent at which Carried
Initial cost to Acquisition at Close of Period (3)
--------------------- ---------------- ---------------------------------------------
Deferred Deferred
Bldg & Leasing Costs & Bldg. & Leasing
Description Encumbrances Land Improve. Improvements Land Improve. Costs Total
----------- ------------ ---- -------- ------------ ---- -------- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Harrisburg East Mall $49,005(1) $ 4,700(2) $31,287(2) $23,753 $4,700(2) $49,318(2) $5,722(6) $59,740
Harrisburg, PA
--------------------------------------------------------------------------------------------------------------------------------
Totals $49,005 $ 4,700 $31,287 $23,753 $4,700 $49,318 $5,722 $59,740
--------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
Life on
which
Depreciation
in Latest
Accum. Income Stmt.
Depreciation Date of Date is
& Amort Construction Acquired Computed
------- ------------ -------- --------
Harrisburg East Mall $19,710 1969(4) 3/13/85 N.A.
Harrisburg, PA
-------------------------------
Totals $19,710
-------------------------------
</TABLE>
(1) Encumbrances are composed of the principal amounts of a mortgage note
payable constituting a first lien on the Mall and a term loan payable to a
bank constituting a subordinated lien on the Mall, together with the
related amounts of accrued interest thereon as of December 31, 1999.
(2) Initial cost is net of imputed interest of $5,280 at date of acquisition.
(3) The aggregate tax basis of the Trust's land and building is $54 million as
of December 31, 1998.
(4) Renovation of the Mall was completed in 1993.
(5) As discussed in the Notes to Financial Statements, the Trust intends to
sell the Mall and as such, its investment in real estate is presented on
the balance sheets as held for sale at December 31, 1999 and 1998. This
asset includes deferred leasing costs, and is carried at the lower of cost
or fair value less cost to sell. Depreciation and amortization of the
Mall's assets ceased beginning April 1, 1998.
(6) Included in deferred leasing costs is a 1990 payment of $5,500,000 made to
an anchor tenant at the Mall in exchange for the tenant relinquishing space
that was subsequently converted into leasable are for mall shops.
<TABLE>
<CAPTION>
RECONCILIATION OF GROSS CARRYING RECONCILIATION OF ACCUMULATED DEPRECIATION &
AMOUNT OF REAL ESTATE: AMORTIZATION:
<S> <C> <C> <C>
Balance, December 31, 1996 $ 57,920 Balance, December 31, 1996 $ 16,989
Improvements and Additions 546 Depreciation & amortization expense 2,181
-------- --------
Balance, December 31, 1997 58,466 Balance, December 31, 1997 19,170
Improvements and Additions 652 Depreciation & amortization expense 588
-------- --------
Balance, December 31, 1998 59,118 Balance, December 31, 1998 19,758
Improvements and Additions 622 Retirement (48)
-------- --------
Balance, December 31, 1999 $ 59,740 Balance, December 31, 1999 $ 19,710
-------- --------
-------- --------
</TABLE>
50
