<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 3, 1998
Registration Statement No. 333-43777
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
-------------------------
AMERICAN REALTY TRUST, INC.
(Exact name of registrant as specified in its governing instrument)
GEORGIA 6513 54-0697989
(State of Incorporation) (Primary Standard Industrial) (I.R.S. Employer
Classification Code Number) Identification No.)
10670 NORTH CENTRAL EXPRESSWAY, SUITE 300
DALLAS, TEXAS 75231
(214) 692-4700
(Address and telephone number of principal executive offices)
ROBERT A. WALDMAN, ESQ.
10670 NORTH CENTRAL EXPRESSWAY, SUITE 300
DALLAS, TEXAS 75231
(214) 692-4700
(Name, address and telephone number of agent for service)
-------------------------
Copy to:
THOMAS R. POPPLEWELL, ESQ.
ANDREWS & KURTH L.L.P.
1717 MAIN STREET, SUITE 3700
DALLAS, TEXAS 75201
-------------------------
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C>
Preferred Stock, $2.00 par value...................... 99,212 Shares $ 673, 976 $ 198.82 (3)
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Common Stock, $0.01 par value......................... (2)
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</TABLE>
(1) Pursuant to Rules 457(f) and 457(c) under the Securities Act of 1933, as
amended, and estimated solely for the purpose of calculating the
registration fee, the proposed maximum aggregate offering price is equal to
the market value of the EQK Shares to be acquired
<PAGE> 2
by ART in connection with the Merger and is based upon $1.00, the average
of the closing bid and asked prices of the EQK Shares as reported on the
over-the-counter market as of August 25, 1998.
(2) The number of shares of Common Stock of the Registrant to be registered is
such currently indeterminate number of shares of Common Stock as may be
required for issuance upon conversion of the Preferred Stock being
registered hereunder. Such shares of Common Stock will, if issued, be
issued for no additional consideration and therefore, pursuant to Rule
457(g), no separate registration fee is required.
(3) ART has previously paid a registration fee of $1,550.36 in connection with
this filing.
================================================================================
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
EQK REALTY INVESTORS I
----------------
5775 Peachtree Dunwoody Road, Suite 200D
Atlanta, Georgia 30342
---------------------
______________, 1998
Dear Shareholder:
You are cordially invited to attend the 1998 annual meeting (the "Meeting")
of the shareholders of EQK Realty Investors I ("EQK") to be held at the offices
of EQK, 5775 Peachtree Dunwoody Road, Suite 200D in Atlanta, Georgia on
__________, 1998 at 9:00 a.m. Eastern Standard Time. At the Meeting, you will be
asked to consider and vote upon (1) an Amended and Restated Agreement and Plan
of Merger, dated as of August 25, 1998 (the "Merger Agreement"), pursuant to
which ART Newco, LLC ("ART Newco"), an affiliate of American Realty Trust, Inc.,
a Georgia corporation ("ART"), is to merge with and into EQK (the "Merger"),
with EQK being the surviving entity (the "Merger Proposal"), (2) an amendment
and restatement of EQK's Amended and Restated Declaration of Trust (the
"Declaration Amendment Proposal"), (3) the termination of EQK's advisory
agreement with Lend Lease Portfolio Management, Inc. ("LLPM") and the execution
by EQK of a new advisory agreement with Basic Capital Management, Inc., an
affiliate of ART, as the advisor (the "New Advisory Agreement Proposal"), and
(4) the election of the Board of Trustees of EQK (the "Board Election Proposal"
and, together with the Merger Proposal, the Declaration Amendment Proposal and
the New Advisory Agreement Proposal, the "Proposals")) . If the Merger Proposal
is approved by the requisite number of EQK shareholders, you will retain each
EQK Share you own and you will be entitled to receive $0.14 per each EQK Share
owned, consisting of 0.014 of a share of Series F Cumulative Convertible
Preferred Stock of ART having a liquidation value of $10.00 per share
(individually, an "ART Preferred Share" and collectively, the "ART Preferred
Shares") (the "EQK Merger Consideration"). ART will be entitled to receive
673,976 newly-issued EQK Shares. Immediately after the Merger, ART would own not
more than 49% of EQK's outstanding shares and would have significant influence
over EQK. ART currently intends (but is not obligated) to acquire the rest of
the EQK Shares at some time after the third anniversary of the consummation of
the Merger for not less than $0.486 per EQK Share in the form of an additional
0.0486 of an ART Preferred Share.
Each of LLPM, Summit Ventures, L.P. ("Summit") and Sutter Opportunity Fund,
LLC ("Sutter") has agreed to vote their EQK Share in favor of the Proposals,
other than the Board Election Proposal. LLPM, Summit, Sutter and Maurice A.
Halperin currently own 17.50%, 9.52%, 9.55% and 8.87%, respectively, of the
issued and outstanding EQK Shares. ART does not currently and will not own any
EQK Shares at the time of the EQK Annual Meeting.
EQK intends to sell Harrisburg East Mall, the Company's sole remaining real
estate asset, and to distribute EQK's net liquid assets after such sale. The
completion of the sale and the distribution of net assets are preconditions to
the closing of the merger.
Further information concerning the Meeting and the terms of the Proposals
are set forth in the enclosed Notice of Annual Meeting and Prospectus/Proxy
Statement. EQK's management will be in attendance at the annual meeting to
answer questions and to explain the proposed merger in detail.
Your vote on the Merger is of great importance. The affirmative vote of the
holders of three-quarters of the outstanding shares of beneficial interest of
EQK entitled to vote, among other conditions, is required for the approval of
the Proposals, other than the Board Election Proposal. Even if you plan to
attend the Meeting, we ask that you execute and promptly return your completed
proxy in the enclosed postage-paid envelope so that your vote can be recorded at
the meeting. If you attend the Meeting, you may withdraw your proxy and vote
your shares personally.
<PAGE> 4
The EQK Board of Trustees has considered and approved the Proposals,
including the Merger Proposal, and unanimously recommends that shareholders vote
FOR approval of the Proposals.
Very truly yours,
-------------------------------------
President and Chief Executive Officer
<PAGE> 5
EQK REALTY INVESTORS I
5775 Peachtree Dunwoody Road, Suite 200D
Atlanta, Georgia 30342
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD __________, 1998
---------------------
The 1998 annual meeting of the shareholders of EQK Realty Investors I (the
"Meeting") is to be held at the offices of EQK Realty Investors I ("EQK") at
5775 Peachtree Dunwoody Road, Suite 200D, Atlanta, Georgia on __________, 1998
at 9:00 a.m. Eastern Standard Time, for the following purposes:
(1) To consider and vote upon an Amended and Restated Agreement and Plan of
Merger, dated as of August 25, 1998 (the "Merger Agreement"), which
provides for, among other things, the merger of ART Newco, LLC, an
affiliate of American Realty Trust, Inc., a Georgia corporation
("ART"), with and into EQK Realty Investors I (the "Merger"), with EQK
Realty Investors I being the surviving entity;
(2) To consider and vote on an amendment and restatement of EQK's Amended
and Restated Declaration of Trust, which includes provisions that would
o extend the duration of EQK,
o remove the current limitation on the number of authorized
shares of EQK,
o reduce the number of EQK shareholders and trustees required
to vote on certain matters,
o remove prohibitions and restrictions which currently
prohibit EQK from engaging in certain activities and
investments,
o remove prohibitions on the issuance of additional shares of
beneficial interest in EQK and other securities,
o remove borrowing restrictions on EQK,
o revise certain trust governance provisions,
o implement an ownership limit on the number of shares of EQK
which may be owned by any single shareholder, and
o change EQK's name.
(3) To consider and vote on the termination of EQK's advisory agreement
with Lend Lease Portfolio Management, Inc. and the execution by EQK of
a new advisory agreement between EQK and Basic Capital Management,
Inc., an affiliate of and advisor to ART;
(4) To consider and vote on the election of EQK's Board of Trustees; and
(5) To transact such other business as may properly come before the annual
meeting or any adjournment thereof.
In addition, none of the aforementioned matters to be considered and voted
upon will take effect unless EQK first completes the sale of its last remaining
real estate asset, the Harrisburg East Mall, and makes a distribution of EQK's
net liquid assets after such sale.
Only EQK shareholders of record at the close of business on _____________
are entitled to notice of and to vote at the Meeting. In the event that there
are insufficient shares represented to approve the Merger at the Meeting, the
Meeting may be adjourned to permit further solicitation. The Meeting was delayed
as a result of the negotiation of the Merger Agreement and related matters.
No statutory dissenter's appraisal rights will be available to EQK
shareholders in connection with the Merger and it is the position of EQK that no
common law dissenter's rights will be available in connection with the Merger;
however, any EQK shareholder who wishes to assert common law dissenter's
appraisal rights may file with EQK's Secretary a written notice stating such
shareholder's intent to dissent to the Merger at the Meeting and to assert such
rights. In the event that holders of more than 3% of the outstanding EQK Shares
assert such dissenter's appraisal rights, the Merger Agreement may be
terminated. For a detailed discussion of the
<PAGE> 6
procedures for asserting such rights, see "The Proposed Merger and Related
Matters -- Availability of Appraisal Rights" in the enclosed Prospectus/Proxy
Statement.
Even if you plan to attend the Meeting, we ask that you execute and
promptly return your completed proxy in the enclosed postage-paid envelope so
that your vote can be recorded at the Meeting. If you attend the Meeting, you
may withdraw your proxy and vote your shares personally.
By Order of the Board of Trustees,
----------------------------------
Secretary
Atlanta, Georgia
[DATE]
<PAGE> 7
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS/PROXY STATEMENT
SUBJECT TO COMPLETION, DATED SEPTEMBER 3, 1998
AMERICAN REALTY TRUST, INC.
SERIES F CUMULATIVE CONVERTIBLE PREFERRED STOCK
COMMON STOCK
This Prospectus/Proxy Statement relates to 99,212 shares of Series F
Cumulative Convertible Preferred Stock with a par value of $2.00 per share and a
stated liquidation value ("Liquidation Value") of $10.00 per share
(individually, an "ART Preferred Share" and collectively, the "ART Preferred
Shares"), of American Realty Trust, Inc., a Georgia corporation ("ART"), that
may be issued pursuant to an Amended and Restated Agreement and Plan of Merger,
dated as of August 25, 1998 (the "Merger Agreement"), among ART, ART Newco, LLC,
a Massachusetts limited liability company ("ART Newco") of which ART and ART
Newco Holdings LLC, a Texas limited liability company that is a wholly owned
subsidiary of ART, are the sole members, and EQK Realty Investors I, a
Massachusetts business trust ("EQK"). The Merger Agreement provides for the
merger of ART Newco with and into EQK (the "Merger"), with EQK being the
surviving entity (the "Trust"). As consideration for the Merger, each holder of
record of outstanding shares of beneficial interest no par value of EQK
(individually, an "EQK Share" and collectively, the "EQK Shares") as of ________
(the "EQK Record Date"), other than ART and its affiliates, Lend Lease Portfolio
Management, Inc. ("LLPM"), Summit Venture, L.P. ("Summit"), Sutter Opportunity
Fund, LLC ("Sutter") and Mr. Maurice A. Halperin ("Halperin") (collectively, the
"Public EQK Shareholders"), will be entitled to retain the EQK Shares such
holder holds and to receive for each EQK Share owned by such holder 0.014 of an
ART Preferred Share with a Liquidation Value for such portion of a share of
$0.14 (the "EQK Merger Consideration"). In addition, ART currently intends (but
is not obligated) to acquire the remaining EQK Shares from the Public EQK
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 for such portion of a share of $0.486 for each EQK Share owned by the
Public EQK Shareholders. As consideration for the Merger, ART will be entitled
to receive 673,976 newly-issued EQK Shares (the "ART Merger Consideration" and,
together with the EQK Merger Consideration, the "Merger Consideration").
Immediately prior to the Merger, ART expects to purchase an aggregate of
4,376,056 EQK Shares from LLPM, Summit, Sutter and Halperin pursuant to the
terms of separate stock purchase agreements (collectively, the "Block Purchase")
for consideration of 0.030 ART Preferred Shares per each EQK Share owned by
LLPM, Summit, Sutter or Halperin, as applicable (the "Block Purchase
Consideration"). Upon consummation of the Block Purchase and the Merger, ART
would own not more than 49% of the issued and outstanding EQK Shares. If the
Merger is consummated as described herein, the Public EQK Shareholders will have
effectively sold approximately 3.6% of their EQK Shares to ART for a price per
EQK Share equal to 0.214 of an ART Preferred Share with a Liquidation Value of
$2.14. The Merger will not take effect unless EQK first completes the sale of
its last remaining real estate asset, the Harrisburg East Mall (the "Center"),
and makes a distribution of EQK's net liquid assets after such sale. As of the
date hereof, Halperin has not agreed to sell his EQK Shares to ART. After the
Registration Statement to which this Prospectus/Proxy Statement is a part has
been declared effective by the Commission and before this Prospectus/Proxy
Statement is mailed to the EQK Shareholders, ART intends to file an amendment to
the Registration Statement to indicate whether or not Halperin has agreed to
sell his EQK Shares to ART.
This Prospectus/Proxy Statement is being furnished to all holders of
EQK Shares (the "EQK Shareholders") as of the EQK Record Date in connection with
the solicitation of proxies by the Board of Trustees of EQK (the "EQK Board")
from EQK Shareholders, for use at the 1998 annual meeting of EQK Shareholders
(the "EQK Annual Meeting") scheduled to be held on ________ __, 1998 at EQK's
corporate offices at 5775 Peachtree Dunwoody Road, Suite 200D, Atlanta, Georgia
at 9:00 a.m., Eastern Standard Time, and at any adjournment or postponement
thereof. The EQK Annual Meeting was delayed as a result of the negotiation of
the Merger Agreement and related matters. This Prospectus/Proxy Statement,
together with the applicable Notices of Annual Meeting of Shareholders and
Letters to Shareholders and the accompanying Proxy Cards, are first being mailed
to the EQK Shareholders on or about _______, 1998.
No statutory dissenter's appraisal rights will be available to EQK
shareholders in connection with the Merger and it is the position of EQK that no
common law dissenter's rights will be available in connection with the Merger;
however, any EQK shareholder who wishes to assert common law dissenter's
appraisal rights may file with EQK's Secretary a written notice stating such
shareholder's intent to dissent to the Merger at the EQK Annual Meeting and to
assert such rights. In the event that holders of more than 3% of the outstanding
EQK Shares assert such dissenter's appraisal rights, the Merger Agreement may be
terminated.
<PAGE> 8
This Prospectus/Proxy Statement also relates to the shares of ART
Common Stock ("ART Common Shares") issuable upon conversion of the ART Preferred
Shares that are part of the EQK Merger Consideration, as described herein.
ART has filed a registration statement on Form S-4 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission") covering up to
99,212 ART Preferred Shares issuable in connection with the Merger and the ART
Common Shares issuable on conversion thereof. This Prospectus/Proxy Statement
constitutes the Prospectus of ART filed as part of the Registration Statement
with respect to such ART Preferred Shares and ART Common Shares. This
Prospectus/Proxy Statement is first being mailed to EQK Shareholders on or about
____________, 1998.
SEE "RISK FACTORS" BEGINNING ON PAGE 17 FOR CERTAIN INFORMATION
THAT SHOULD BE CONSIDERED BY THE EQK SHAREHOLDERS, INCLUDING:
o The potential conflicts of interest between EQK and its affiliate
LLPM and between ART and its affiliate and advisor, Basic Capital
Management, Inc. ("BCM").
o The listing and possible subsequent de-listing of ART Preferred
Shares
o The reliance on the ART Board of Directors to declare dividends
on the ART Preferred Shares.
o The anti-takeover effect caused by ART's acquisition of EQK
Shares.
o The ability of the EQK Board of Trustees to make investment
policy changes without EQK Shareholder approval.
o The possible dilution of current EQK Shareholders' percentage of
equity in EQK through the issuance of additional EQK Shares.
o The possible loss of EQK's net operating losses.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus/Proxy Statement is September 3, 1998.
<PAGE> 9
THE EQK BOARD HAS UNANIMOUSLY CONCLUDED THAT THE MERGER IS FAIR AND IN THE
BEST INTERESTS OF EQK AND THE EQK SHAREHOLDERS, AND RECOMMENDS THAT EQK
SHAREHOLDERS APPROVE THE MERGER.
----------------
The EQK Shares were listed and traded on the New York Stock Exchange
("NYSE") prior to May 4, 1998. On April 23, 1998, the NYSE announced that
trading of the EQK Shares would be suspended prior to the opening of the NYSE on
May 4, 1998, as EQK had fallen below the NYSE's continued listing criteria for
net tangible assets available to common stock (less than $12 million) and 3-year
average net income (less than $600,000). On August 25, 1998, the last trading
day prior to the public announcement of the Merger Agreement, the average of the
closing bid and asked prices of the EQK Shares as reported on the
over-the-counter market was $1.00 per EQK Share, and on September 1, 1998, the
most recent date for which prices were available prior to the date of filing
this Prospectus/Proxy, the average of the bid and asked price of the EQK Shares
as reported in the over-the-counter market was $0.8125 per EQK Share.
SEE "COMPARISON OF EQK SHARES TO ART PREFERRED SHARES" ON PAGE 106 FOR A
DESCRIPTION OF THE PRINCIPAL TERMS OF AND CERTAIN SIGNIFICANT CONSIDERATIONS
RELATING TO THE MERGER, THE ART PREFERRED SHARES AND THE EQK SHARES.
CERTAIN STATEMENTS UNDER CAPTIONS "SUMMARY OF TERMS," "RISK FACTORS," "THE
BUSINESS OF ART," "ART MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS OF ART," "THE BUSINESS OF EQK" AND "EQK
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS OF EQK" CONSTITUTE "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 (THE "REFORM ACT"). SUCH
FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND
OTHER FACTORS WHICH MAY CAUSE THE ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS OF
ART TO BE MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR
ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. SUCH
FACTORS INCLUDE, AMONG OTHERS, THE FOLLOWING: GENERAL ECONOMIC AND BUSINESS
CONDITIONS, WHICH WILL, AMONG OTHER THINGS, AFFECT THE SUPPLY AND DEMAND FOR
COMMERCIAL REAL ESTATE, AVAILABILITY AND CREDITWORTHINESS OF PROSPECTIVE
TENANTS, LEASE RATES AND THE AVAILABILITY OF FINANCING; ADVERSE CHANGES IN THE
REAL ESTATE MARKETS INCLUDING, AMONG OTHER THINGS, COMPETITION WITH OTHER
COMPANIES, RISKS ASSOCIATED WITH REAL ESTATE ACQUISITIONS; GOVERNMENTAL ACTIONS
AND INITIATIVES; ENVIRONMENTAL/SAFETY REQUIREMENTS; AND OTHER CHANGES AND
FACTORS REFERENCED IN THIS PROSPECTUS AND THE DOCUMENTS INCORPORATED HEREIN BY
REFERENCE.
AVAILABLE INFORMATION
ART and EQK are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and, in accordance
therewith, file reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports and proxy and information statements
filed by ART and EQK with the Commission pursuant to the informational
requirements of the Exchange Act may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following regional offices of the Commission:
New York Regional Office, 7 World Trade Center, 13th Floor, New York, New York
10048; and Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661- 2511. Copies of such material may be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Commission maintains a Web site
that contains reports, proxy and information statements and other information
regarding registrants, including ART and EQK, that file electronically with the
Commission. The address of such Web site is "http://www.sec.gov". In addition,
reports, proxy statements and other information concerning ART (symbol: "ARB")
can be inspected and copied at the offices of the New York
-ii-
<PAGE> 10
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005-2601, on which
the ART Common Shares are currently listed and on which ART intends to seek
listing of the ART Preferred Shares.
ART has filed with the Commission the Registration Statement under the
Securities Act, with respect to the ART Preferred Shares and the ART Common
Shares. This Prospectus/Proxy Statement does not contain all of the information
set forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to ART, the ART Preferred Shares, the ART Common Shares
and EQK, reference is made to the Registration Statement and to the exhibits
thereto and the documents incorporated by reference herein. Statements contained
herein concerning the provisions of certain documents are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
The Registration Statement and the exhibits thereto may be inspected without
charge at the office of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, and copies thereof may be obtained from the Commission upon payment of
the prescribed fees.
The information set forth or incorporated by reference herein concerning
ART has been furnished by ART and the information set forth herein concerning
EQK has been provided by EQK or derived from public filings previously made by
EQK. ART does not have independent knowledge of the matters set forth or
incorporated by reference herein concerning EQK. EQK does not have independent
knowledge of the matters set forth or incorporated by reference herein
concerning ART.
No person has been authorized to give any information or make any
representation other than those set forth or incorporated by reference herein
and, if given or made, such information must not be relied upon as having been
authorized by ART or EQK or any of their respective affiliates. This
Prospectus/Proxy Statement does not constitute an offer to, or a solicitation
of, any person in any jurisdiction in which such offer or solicitation is
unlawful.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Prospectus/Proxy Statement incorporates by reference documents not
presented herein or delivered herewith. Each of ART and EQK will provide without
charge to each person, including any EQK Shareholder, to whom a copy of this
Prospectus/Proxy Statement is delivered, upon the written or oral request of any
such person, a copy of any document described below (other than exhibits).
Requests for such copies should be directed to (i) in the case of ART, American
Realty Trust, Inc., 10670 North Central Expressway, Suite 300, Dallas, Texas
75231, Attention: Investor Relations, telephone number: (214) 692-4700, and (ii)
in the case of EQK, EQK Realty Investors I, Inc., 5775 Peachtree Dunwoody Road,
Suite 200D, Atlanta, Georgia 30342, Attention: Investor Relations, telephone
number (404) 303- 6100. In order to ensure timely delivery of such documents,
any request for documents should be submitted not later than five business days
before the date of the EQK Annual Meeting.
The following documents, heretofore filed by ART with the Commission
pursuant to the Exchange Act, are hereby incorporated by reference, except as
superseded or modified herein:
1. ART's Annual Report on Form 10-K for the fiscal year ended December 31,
1997, as filed with the Commission on March 30, 1998.
2. ART's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1998, as filed with the Commission on May 14, 1998.
3. ART's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1998, as filed with the Commission on August 14, 1998.
4. ART's Current Report on Form 8-K dated May 1, 1998, as filed with the
Commission on June 25, 1998, as amended by ART's Current Report on Form 8-KA, as
filed with the Commission on July 16, 1998.
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<PAGE> 11
5. The Annual Report on Form 10-K for Continental Mortgage and Equity Trust
("CMET") for the year ended December 31, 1997, as filed with the Commission on
March 20, 1998.
6. CMET's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1998, as filed with the Commission on May 14, 1998.
7. CMET's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1998, as filed with the Commission on August 11, 1998.
8. CMET's Current Report on Form 8-K dated April 3, 1998, as filed with the
Commission on June 25, 1998.
9. The Annual Report on Form 10-K for Income Opportunity Realty Investors,
Inc. ("IORI") for the year ended December 31, 1997, as filed with the Commission
on March 20, 1998.
10. IORI's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1998, as filed with the Commission on May 4, 1998.
11. IORI's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1998, as filed with the Commission on August 5, 1998.
12. IORI's Current Report on Form 8-K dated November 19, 1997, as filed
with the Commission on December 3, 1997, as amended by IORI's Current Report on
Form 8-K/A, as filed with the Commission on January 14, 1998, and as further
amended by IORI's Current Report on Form 8-K/A, as filed with the Commission on
August 5, 1998.
13. IORI's Current Report on Form 8-K dated December 30, 1997, as filed
with Commission on January 9, 1998.
14. The Annual Report on Form 10-K for Transcontinental Realty Investors,
Inc. ("TCI") for the year ended December 31, 1997, as filed with the Commission
on March 20, 1998.
15. TCI's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1998, as filed with the Commission on May 4, 1998.
16. TCI's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1998, as filed with the Commission on August 5, 1998.
17. TCI's Current Report on Form 8-K dated December 22, 1997, as filed with
the Commission on January 9, 1998, as amended by TCI's Current Report on Form
8-K/A, as filed with the Commission on June 29, 1998.
18. TCI's Current Report on Form 8-K dated May 29, 1998, as filed with the
Commission on July 2, 1998.
19. TCI's Current Report on Form 8-K dated June 26, 1998, as filed with the
Commission on July 21, 1998.
20. The Annual Report on Form 10-K for National Realty, L.P. ("NRLP") for
the year ended December 31, 1997, as filed with the Commission on March 26,
1998.
21. NRLP's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1998, as filed with the Commission May 14, 1998.
22. NRLP's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1998, as filed with the Commission on August 14, 1998.
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23. The description of the Common Stock contained in ART's Registration
Statement under Section 12 of the Exchange Act and all amendments and reports
filed for the purpose of updating that description.
In addition, the following documents, heretofore filed by EQK with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference,
except as superseded or modified herein:
1. EQK's Annual Report on Form 10-K for the fiscal year ended December 31,
1997, as filed with the Commission on March 31, 1998.
2. EQK's Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1998, as filed with the Commission on May 15, 1998.
3. EQK's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1998, as filed with the Commission on August 14, 1998.
Any statement contained herein or in a document that is deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus/Proxy Statement to the extent that a statement
contained herein or in any other subsequently filed amendment hereto modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus/Proxy Statement.
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TABLE OF CONTENTS
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AVAILABLE INFORMATION............................................................................................ii
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE...............................................................iii
SUMMARY OF TERMS..................................................................................................1
General.....................................................................................................1
Future Proposals of Stockholders............................................................................1
Summary of Risk Factors.....................................................................................1
ART.........................................................................................................3
Business of ART.............................................................................................3
ART Newco...................................................................................................4
EQK.........................................................................................................4
Business of EQK.............................................................................................4
Merger Proposal.............................................................................................5
Declaration Amendment Proposal.............................................................................10
New Advisory Agreement Proposal............................................................................11
Board Election Proposal....................................................................................11
New York Stock Exchange Listing of ART Preferred Shares....................................................11
Regulatory Approval........................................................................................11
The EQK Annual Meeting.....................................................................................11
Federal Income Tax Considerations..........................................................................12
Description of ART Preferred Shares........................................................................12
Description of EQK Shares..................................................................................13
The Dealer Manager.........................................................................................14
Market and Trading Information.............................................................................14
Comparative Per Share Data.................................................................................15
RISK FACTORS.....................................................................................................17
Possible Detrimental Effects of the Merger.................................................................17
Dilution of Current EQK Shareholders and Likely Decline in Trading Price per EQK Share. ...............17
Anti-Takeover Effect. .................................................................................17
Leverage of EQK after the Merger........................................................................17
Benefits to LLPM........................................................................................17
Conflicts of Interest Between LLPM and EQK..............................................................17
Conflicts of Interest Between EQK and BCM...............................................................17
ART Preferred Shares.......................................................................................18
Application for the Listing and Trading of ART Preferred Shares and Possible Subsequent Delisting.......18
Reliance on the ART Board to Declare Dividends on the ART Preferred Shares..............................18
Possibility that an Active Trading Market Will Not Exist for the ART Common Shares When the ART
Preferred Shares are Converted........................................................................19
Potential Adverse Consequences of the Declaration Amendment Proposal.......................................19
Effect of Limits on Ownership and Issuance of Additional EQK Shares or other Securities.................19
Changes in EQK's Policies without Shareholder Approval..................................................19
Removal of Prohibitions and Restrictions from Certain Activities and Investments........................20
Possible Issuance of Additional EQK Shares or Other Securities..........................................20
Potential Adverse Consequences Associated with Affiliate of Controlling Shareholder of New Advisor.........20
Correlation between the Value of the ART Preferred Shares and the Success of ART's Business................20
</TABLE>
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<TABLE>
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Recent Operating History................................................................................20
Changes in ART's Policies Without Stockholder Approval..................................................21
Investments in Real Property............................................................................21
Nature of Investments Made by ART May Involve High Risk; Illiquidity of Real Estate Investments.........21
Difficulty of Locating Suitable Investments; Competition................................................21
General Investment Risks Associated With Acquisition Activities.........................................21
Dependence on Rental Income from Real Property..........................................................22
Properties that Serve as Collateral for ART's Mortgage Notes Receivable.................................22
Operating Risks of ART's Properties.....................................................................22
Existing Debt Maturities................................................................................23
Rising Interest Rates on Variable Rate Debt.............................................................23
Covenants...............................................................................................24
Lack of Control and Other Risks of Equity Investments in and with Third Parties.........................24
Investments in Non-Recourse Mortgage Loans..............................................................24
Limitations on Remedies.................................................................................24
Possibility of Uninsured Loss on Uninsurable or Economically Uninsurable Properties.....................25
Costs of Compliance with the Americans with Disabilities Act and Similar Laws...........................25
Potential Environmental Liability Affecting ART.........................................................25
Noncompliance with Other Laws...........................................................................26
Changes in Laws.........................................................................................26
Dependence on Key Personnel.............................................................................26
Correlation between the Value of the EQK Shares and the Success of EQK's Business.......................26
Possible Loss of NOLs...................................................................................26
Consequences of Failure of EQK to Qualify as a REIT.....................................................26
RATIO OF EARNINGS TO FIXED CHARGES...............................................................................27
USE OF PROCEEDS..................................................................................................27
THE EQK ANNUAL MEETING...........................................................................................27
Introduction...............................................................................................27
Date, Time and Place of Meetings...........................................................................27
Matters to Be Considered at the EQK Annual Meeting.........................................................27
Record Date and Vote Required..............................................................................28
Proxy......................................................................................................28
Solicitation of Proxies....................................................................................28
Other Matters..............................................................................................29
THE PROPOSED MERGER AND RELATED MATTERS..........................................................................29
Background of the Merger...................................................................................29
General....................................................................................................32
Effects of the Merger......................................................................................32
Effective Time of the Merger...............................................................................32
Terms of the Merger........................................................................................33
Cash in Lieu of Fractional Shares of ART Preferred Shares..................................................33
Availability of Appraisal Rights...........................................................................33
Conditions to the Merger; Termination; Waiver and Amendment................................................34
Solicitation Permitted; Board Action; Fees and Expenses....................................................35
Conduct of EQK's Businesses Pending Completion of the Merger...............................................35
Sale of Center and Acquisition of Oak Tree Village.........................................................35
ART's Purposes for the Merger..............................................................................38
The EQK Board Recommendation...............................................................................38
</TABLE>
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Federal Income Tax Consequences............................................................................39
Effect of Merger on Market for EQK Shares; Registration Under the Exchange Act.............................43
Fees and Expenses in Connection with the Merger............................................................43
Accounting Treatment.......................................................................................44
Stock Exchange Listing.....................................................................................44
THE DECLARATION AMENDMENT PROPOSAL...............................................................................45
THE NEW ADVISORY AGREEMENT PROPOSAL..............................................................................46
THE BOARD ELECTION PROPOSAL......................................................................................47
DESCRIPTION OF ART...............................................................................................50
THE BUSINESS OF ART..............................................................................................51
General....................................................................................................51
Geographic Regions.........................................................................................53
Real Estate................................................................................................54
Mortgage Loans.............................................................................................66
Investments in Real Estate Investment Trusts and Real Estate Partnerships..................................69
SELECTED FINANCIAL DATA OF ART...................................................................................76
ART MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS OF ART...........................................................................78
Introduction...............................................................................................78
Environmental Matters......................................................................................88
Inflation..................................................................................................88
DESCRIPTION OF THE CAPITAL STOCK OF ART..........................................................................88
General....................................................................................................88
ART Preferred Shares.......................................................................................88
ART Common Shares..........................................................................................89
Special Stock..............................................................................................89
DESCRIPTION OF EQK...............................................................................................93
THE BUSINESS OF EQK..............................................................................................93
General....................................................................................................93
Summary of the Existing Declaration of Trust...............................................................95
Property Management Agreement..............................................................................97
SELECTED FINANCIAL DATA OF EQK...................................................................................97
COMPARISON OF EQK SHARES TO ART PREFERRED SHARES................................................................106
DESCRIPTION OF THE HARRISBURG EAST MALL.........................................................................109
SELECTED UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION OF ART AND EQK......................................116
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PLAN OF DISTRIBUTION............................................................................................128
LEGAL MATTERS...................................................................................................128
EXPERTS.........................................................................................................128
INDEX TO FINANCIAL STATEMENTS...................................................................................F-1
</TABLE>
APPENDICES:
APPENDIX A - Glossary of Select Terms
APPENDIX B - Amended and Restated Merger Agreement
APPENDIX C - New Advisory Agreement
APPENDIX D - Second Amended and Restated Declaration of Trust of EQK
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<PAGE> 17
SUMMARY OF TERMS
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere herein and in the documents
incorporated herein by reference. Certain capitalized terms used herein may be
defined elsewhere in this Prospectus/Proxy Statement. See "Glossary of Selected
Terms" included as Appendix A to this Prospectus/Proxy Statement.
GENERAL
This Prospectus/Proxy Statement relates to the EQK Annual Meeting at which
the EQK Shareholders will consider and vote upon the following proposals:
(1) The Merger Agreement and the Merger (the "Merger Proposal");
(2) An amendment and restatement of EQK's Amended and Restated Declaration
of Trust dated February 27, 1985, as amended on March 5, 1986 (the "Declaration
of Trust"), as described herein (the "Declaration Amendment Proposal");
(3) The termination of LLPM's rights and obligations under the advisory
agreement between LLPM and EQK (the "Advisory Agreement") and the execution by
EQK of a new advisory agreement (the "New Advisory Agreement") between EQK and
Basic Capital Management, Inc., a Nevada corporation and an affiliate of and
advisor to ART ("BCM"), as the new advisor to EQK (the "New Advisory Agreement
Proposal");
(4) The election of the EQK Board (the "Board Election Proposal"); and
(5) Such other business as may properly come before the EQK Annual Meeting
or any adjournment thereof.
The Board Election Proposal will require the affirmative vote of EQK
Shareholders representing a majority of the total votes authorized to be cast by
EQK Shares then outstanding which are present at the EQK Annual Meeting in
person or by proxy and entitled to vote thereon. The Merger Proposal, the
Declaration Amendment Proposal and the New Advisory Agreement Proposal
(collectively, the "Merger-Related Proposals") will each require the affirmative
vote of EQK Shareholders representing three-quarters of the total votes
authorized to be cast by EQK Shares then outstanding (the "Requisite Shareholder
Approval"). None of the Merger-Related Proposals will take effect unless all
such proposals receive the Requisite Shareholder Approval. In addition, none of
the Merger-Related Proposals will take effect unless EQK first completes the
sale of its last remaining real estate asset, the Center, and makes a
distribution of EQK's net liquid assets after such sale. The Board Election
Proposal and the Merger-Related Proposals are referred to herein collectively as
the "Proposals."
FUTURE PROPOSALS OF STOCKHOLDERS
Any proposal intended to be presented by an EQK Stockholder at the 1998
Annual Meeting of EQK Shareholders must be received at EQK's principal office
not later than ___, 1998, in order to be considered for that meeting.
SUMMARY OF RISK FACTORS
In considering whether or not to vote in favor of the Merger-Related
Proposals, EQK Shareholders should carefully consider all of the information set
forth in this Prospectus/Proxy Statement and, in particular, should evaluate the
factors set forth under the caption "Risk Factors" herein. Such factors include,
among other things:
o Dilution of Current EQK Shareholders and Likely Decline in Trading
Price per EQK Share. If the Merger is consummated, the percentage ownership of
the Public EQK Shareholders in EQK will be diluted as a result of the issuance
of EQK Shares to ART as the ART Merger Consideration. Accordingly, after the
Merger, the trading price of the EQK Shares is likely to decline as a result of
such dilution.
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<PAGE> 18
o Application for the Listing and Trading of ART Preferred Shares and
Possible Subsequent Delisting. As of August 25, 1998, there were 3,350,000 ART
Preferred Shares outstanding, 2,200,000 of which are not held by affiliates of
ART; however, there is currently no established public market for the ART
Preferred Shares. While the listing of the ART Preferred Shares on the NYSE is a
condition precedent to EQK's obligation to consummate the Merger, there can be
no assurance that an active market for the ART Preferred Shares will develop or
be sustained in the future on such exchange if the listing is approved. Listing
of the ART Preferred Shares will also depend upon the satisfaction of the NYSE's
listing requirements as described herein under "Risk Factors -- Risks Relating
to the ART Preferred Shares -- Risks Relating to the Listing and Trading of the
ART Preferred Shares."
o Reliance on the ART Board to Declare Dividends on the ART Preferred
Shares. Although dividends accrue cumulatively on the ART Preferred Shares from
the date of issuance, such dividends will not be paid unless and until they are
declared by the ART Board. Holders of ART Preferred Shares will not have the
authority to direct or compel the ART Board to declare dividends with respect to
the ART Preferred Shares.
o Potential Adverse Consequences of the Declaration Amendment Proposal.
Subject to the Requisite Shareholder Approval of the Declaration Amendment
Proposal, EQK's Declaration of Trust will be amended to provide for, among other
things, (i) the Ownership Limit; (ii) a 20 year extension of the finite life of
the trust, (iii) the ability to change investment, financing, borrowing and
distribution policies without shareholder approval, (iv) the removal of
prohibitions from certain activities and investments, and (v) the ability to
issue additional EQK Shares and other types of securities. Such amendments will,
among other things, expand the scope of the actions that may be taken by the New
EQK Board without shareholder approval. See "Risk Factors -- Potential Adverse
Consequences of the Declaration Amendment Proposal" and "The Declaration
Amendment Proposal."
o Anti-Takeover Effect. If the Merger and the Block Purchase are
consummated, ART will acquire an aggregate of 5,050,032 EQK Shares, or
approximately 49% of the EQK Shares to be outstanding after the Merger. As a
result of the foregoing and the effect of the Ownership Limit (as defined below
under "--Declaration Amendment Proposal"), third party attempts to acquire
control of EQK may not be practicable. Accordingly, if the Merger is approved,
it is unlikely that an attempted take-over of EQK, which might result in an
increase in the price at which EQK Shares could be sold, will occur.
o The Value of the ART Preferred Shares is Substantially related to the
Success of ART's Business. The future value of the ART Preferred Shares will be
substantially dependent upon the results of ART's business, which is subject to
a number of risks as generally described herein under "Risk Factors -- Risks
Relating to ART's Business."
o The Value of the EQK Shares is Substantially Related to the Success
of EQK's Business. The future value of the EQK Shares will be substantially
dependent upon the results of EQK's business, which is subject to many of the
same risks to which ART is subject, in addition to the risks described below.
However, after the sale of the Center and the distribution of EQK's net liquid
assets to the EQK Shareholders, EQK will have limited assets and limited or no
capital.
o Possible Loss of NOLs. EQK currently has net operating losses
carryovers ("NOLs") for federal income tax purposes of approximately
$94,000,000, prior to the anticipated utilization of a portion of these NOLs to
offset the taxable gain expected to be realized upon the sale of Harrisburg East
Mall. In general, such NOLs may be used to offset any taxable gains realized
upon the sale of EQK's assets so long as there is not more than a 50 percentage
point change in the ownership of the EQK Shares during any three year period. In
the event that there is more than a 50 percentage point change in the ownership
of EQK Shares during a three year period, the availability of such NOLs to
offset taxable gains or income would be reduced to a very significant extent.
Although it is not expected that the Merger, the Block Purchase or the
Standstill Agreements would reduce the availability of the NOLs, future
transfers of EQK Shares may be made over which ART will have no control. A
reduction in the availability of such NOLs could have a material adverse effect
on the market value of EQK and the EQK Shares.
o Consequences of Failure of EQK to Qualify as a REIT. EQK has
transacted and intends to continue to transact its affairs so as to qualify as a
real estate investment trust ("REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"). If EQK were to fail to
qualify as a REIT in any taxable year,
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<PAGE> 19
EQK would be subject to Federal income tax (including any applicable alternative
minimum tax) on its taxable income at corporate rates. Moreover, unless entitled
to relief under certain statutory provisions, EQK also would be disqualified
from treatment as a REIT for the four taxable years following the year during
which qualification is lost. This treatment could reduce the net earnings of EQK
available for investment or distribution to shareholders because of the
additional tax liability to EQK for the years involved. In addition,
distributions of REIT taxable income, if any, to EQK Shareholders would no
longer be required to be made.
o Sale of the Center. As described below under "--Business of EQK," EQK
has negotiated a forbearance agreement with the holder of its existing mortgage
debt (aggregating $45,376,000 as of June 15, 1998) until December 15, 1998.
Pursuant to the Merger Agreement, ART has agreed to permit EQK to sell the
Center and distribute the remaining net liquid assets to the EQK Shareholders
(including LLPM, Summit, Sutter and Halperin) as a condition precedent to the
Merger. Upon consummation of the sale of the Center and the distribution of the
net proceeds therefrom to the EQK Shareholders, the market value of the EQK
Shares will be substantially reduced and it is unlikely that EQK will have
sufficient net earnings available for future distributions to EQK Shareholders.
ART
ART, a Georgia corporation, is the successor to a District of Columbia
business trust organized pursuant to a declaration of trust dated July 14, 1961.
The business trust merged into ART on June 24, 1988. ART elected to be treated
as a REIT under applicable provisions of the Code during the period from July 1,
1987 through December 31, 1990. ART allowed its REIT status to lapse in 1991.
ART, through a wholly owned subsidiary, Pizza World Supreme, Inc. ("PWSI"),
also operates and franchises pizza parlors featuring pizza delivery, carry-out
and dine-in under the trademark "Me-N-Ed's" in California and Texas. The first
Me-N-Ed's pizza parlor opened in 1962. At June 30, 1998, there were 56 Me-N-Ed's
pizza parlors in operation, consisting of 50 owned and 6 franchised pizza
parlors. Eight of the owned pizza parlors were in Texas and the remainder in
California.
ART's principal offices are located at 10670 North Central Expressway,
Suite 300, Dallas, Texas 75231. ART's telephone number is (214) 692-4700. See
"Description of ART."
BUSINESS OF ART
ART's primary business is investing in equity interests in real estate
(including equity securities of real estate- related entities), leases, joint
venture development projects and partnerships and financing real estate and real
estate activities through investments in mortgage loans, including first,
wraparound and junior mortgage loans. ART has invested in private and open
market purchases in the equity securities of CMET, IORI, TCI and NRLP, each of
which is an affiliate of ART.
ART's Board of Directors (the "ART Board") has broad authority under ART's
governing documents to make all types of real estate investments, including
investments in mortgage loans and equity real estate investments, as well as
investments in the securities of other entities, regardless of whether such
entities are engaged in real estate-related activities.
Although the ART Board is directly responsible for managing ART's affairs
and for setting the policies which guide it, the day-to-day operations of ART
are conducted by BCM, an affiliate of and advisor to ART. BCM is a contractual
advisor to ART under the supervision of the ART Board. The duties of BCM
include, among other things, locating, investigating, evaluating and
recommending real estate and mortgage note investment and sales opportunities,
as well as financing and refinancing sources for ART. BCM also serves as a
consultant in connection with ART's business plan and investment policy
decisions made by the ART Board.
ART's businesses are not seasonal. With regard to real estate, ART is
seeking both current income and capital appreciation. ART's plan of operation is
to continue, to the extent its liquidity permits, to make equity investments in
income producing real estate such as apartment complexes and commercial
properties or equity securities of real estate-
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<PAGE> 20
related entities and to continue to service and hold for investment mortgage
loans. ART also intends to pursue higher risk, higher reward investments, such
as undeveloped land, where it can obtain financing of a significant portion of a
property's purchase price. In addition, ART will continue to seek selected
dispositions of certain of its assets where the prices obtainable for such
assets justify their disposition and will pursue its rights vigorously with
respect to mortgage notes receivable that are in default. For a detailed
description of ART's business, see "The Business of ART."
ART NEWCO
ART Newco is a limited liability company formed under the laws of the
Commonwealth of Massachusetts. The members of ART Newco consist of ART and ART
Newco Holdings, LLC, a Texas limited liability company, of which ART is the sole
member. ART Newco was formed specifically for purposes of the Merger and, as
described herein, subject to the Requisite Shareholder Approval, will be merged
with and into EQK pursuant to the Merger.
EQK
EQK was formed pursuant to the filing of its initial declaration of trust
on October 8, 1984. LLPM currently acts as the advisor (in such capacity, the
"Advisor") to EQK. On June 10, 1997, Lend Lease Corporation, an Australian
public property and financial services company, acquired Equitable Real Estate
Investment Management, Inc. ("ERE"), including two of its subsidiaries, LLPM
(formerly Equitable Realty Portfolio Management) and Compass Retail, Inc.
("Compass") from The Equitable Life Assurance Society of the United States
("Equitable"). ERE and certain of its business units, including the Advisor,
currently operate under the name "Lend Lease." Upon consummation of the Merger,
subject to Requisite Shareholder Approval of the Merger-Related Proposals, LLPM
has agreed to terminate its rights and duties as Advisor under the Advisory
Agreement, at which time BCM, an affiliate of and advisor to ART, will become
the new advisor to EQK (in such capacity, the "New Advisor") under the New
Advisory Agreement.
EQK has transacted its affairs so as to qualify as, and has elected to be
treated as, a REIT under applicable provisions of the Code. Under the Code, a
REIT 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 principal executive offices of EQK and LLPM are located at 5775
Peachtree Dunwoody Road, Suite 200D, Atlanta, Georgia, 30342, and their
telephone number is (404) 303-6100. See "Description of EQK."
BUSINESS OF EQK
EQK was formed for the purpose of acquiring three substantially unleveraged
income-producing properties. EQK sold two of such properties, one in
transactions in 1992 and 1993 and the other in transactions in 1991 and 1995.
The Center is currently EQK's only real estate investment. The Center is a
two-level enclosed regional mall shopping center located approximately three
miles from the central business district of Harrisburg, Pennsylvania. EQK is
currently a closed-end trust (i.e., it may not issue any additional EQK Shares
without the approval of holders of three-quarters of the outstanding EQK
Shares), and, except in limited circumstances, it may not make any additional
real estate investments and must distribute to its shareholders the net proceeds
from each sale and financing of any investment. Consequently, EQK is currently a
self-liquidating trust. As described below, upon consummation of the Merger,
subject to the Requisite Shareholder Approval, the Declaration of Trust will be
amended to extend the term of EQK by 20 years and to permit EQK to issue
additional equity securities and to make all types of real estate investments,
including, without limitation, acquisitions of additional real property. See
"Risk Factors -- Potential Adverse Consequences of the Declaration Amendment
Proposal -- Extension of Finite Life of EQK."
Pursuant to the Merger Agreement, ART has agreed to permit EQK to sell the
Center and to distribute the net liquid assets to the EQK Shareholders as a
condition precedent to the Merger. Subject to Requisite Shareholder Approval of
the Merger Related Proposals, EQK has agreed to acquire from ART a retail
shopping center known as "Oak Tree Village" located in Lubbock, Texas ("Oak Tree
Village") upon the terms and conditions described herein under "The Proposed
Merger and Related Matters -- Sale of the Center and Acquisition of Oak Tree
Village."
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MERGER PROPOSAL
Background of the Merger. On March 5, 1996, Mr. Doug Tibetts, President of
Equitable (formerly the indirect parent of LLPM which holds 1,685,556 EQK
Shares), met with ART representatives at ART's office in Dallas. The meeting was
general in nature without a formal agenda. Mr. Tibetts suggested that
representatives of ART speak with Mr. Gregory R. Greenfield, Executive Vice
President and Treasurer of EQK, concerning the possible sale of EQK. During
March and April of 1996, various telephone conversations were held between Mr.
Cooper B. Stuart, an Executive Vice President of BCM, an affiliate of and
advisor to ART, and Mr. Greenfield regarding the Center and a possible
transaction involving EQK.
In August of 1996, Messrs. Stuart and Greenfield had various additional
discussions regarding the possible sale of EQK. Mr. Greenfield informed Mr.
Stuart that EQK needed to focus on completing the sale of certain properties and
Messrs. Stuart and Greenfield agreed to discontinue their discussions until the
beginning of 1997.
On January 23, 1997, representatives of ART held a meeting with Mr. William
G. Brown, Vice President and Controller of EQK, and Mr. Greenfield to discuss a
proposed exchange offer by ART with respect to the EQK Shares. EQK agreed to
engage an independent financial advisor (the "Financial Advisor") to review the
fairness of the proposed exchange offer for the EQK Board.
On February 20, 1997, Mr. Stuart and Mr. A. Cal Rossi, Jr., an Executive
Vice President of BCM, met with Messrs. Greenfield and Brown to further discuss
the proposed exchange offer pursuant to which ART would offer to exchange a
combination of cash and ART Preferred Shares for up to 50% of the outstanding
EQK Shares.
On March 6, 1997, ART and EQK entered into a cost sharing agreement with
respect to the proposed exchange offer. Under the terms of such agreement, (i)
if ART and EQK do not execute a definitive agreement, EQK's liability would
shall be limited to the lesser of 50% of the actual transaction costs or $50,000
and ART shall be responsible for all additional transaction costs, (ii) if ART
and EQK agree upon the terms of and execute a definitive agreement and proceed
in good faith to complete the proposed transaction, but are unsuccessful in this
effort by reason of inadequate shareholder response to the related proxy
statement or otherwise, EQK's liability shall be limited to the lesser of 50% of
the actual transaction costs or $100,000, and ART shall be responsible for all
additional transaction costs, and (iii) if the proposed transaction is
ultimately initiated and successfully achieves the desired shareholder exchange
in accordance with the terms of a definitive agreement, EQK's liability shall be
limited to the lesser of 50% of the actual transaction costs or $150,000, and
ART shall be responsible for all additional transaction costs.
On March 24, 1997, representatives of the Financial Advisor visited ART's
offices to interview key personnel of both ART and BCM.
During April 1997, discussions continued between representatives of ART and
EQK concerning the terms of the ART Preferred Shares, the terms of the proposed
exchange offer and the fairness opinion. Although an offer was never extended,
ART informally proposed to offer to exchange a combination of (i) cash of
approximately $0.40/share and (ii) ART Preferred Shares having a liquidation
value of approximately $1.85 for up to 50% of the outstanding EQK Shares. EQK
had 9,264,344 shares outstanding and The Prudential Insurance Company of America
("Prudential"), the lender on the Center, held warrants to acquire 367,868
shares (the "Prudential Warrants"), for a total of 9,632,212 shares. The ART
Preferred Shares would pay a 10% annual dividend beginning August 16, 1998 and
have a stated liquidation value of $10.00 per ART Preferred Share, plus accrued
and unpaid dividends. If the proposed exchange offer was 100% successful and ART
acquired 4,632,172 shares of EQK and if the actual exchange offer was the same
as that informally discussed, ART would have paid $1,852,869 in cash and issued
856,952 ART Preferred Shares (having a liquidation value of $8,569,520). The
terms of the ART Preferred Shares have not changed in any material manner from
those preliminary discussions. For a description of the ART Preferred Shares see
"Description of the Capital Stock of ART -- ART Preferred Shares." On April 11,
1997, BCM received from EQK a copy of a draft appraisal with respect to the
leasehold interests in the Center. On May 7, 1997, the Financial Advisor orally
issued a fairness opinion with respect to the terms of the proposed exchange
offer. The EQK Board met on May 7, 1997 and approved the terms of the proposed
exchange offer from ART to the EQK Shareholders.
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On June 10, 1997, Lend Lease Corporation acquired ERE, including its
subsidiaries, LLPM and Compass. In connection with such acquisition, the
ownership of LLPM's EQK Shares was transferred for tax purposes, thus
effectively limiting the number of EQK Shares that could be acquired by ART in
an exchange offer without limiting the availability of EQK's NOLs. As a result,
during June and July of 1997, Mr. Stuart and Mr. Brown held further discussions
regarding a proposed change in the structure of the transaction from an exchange
offer to a merger and two separate stock purchases between ART and each holder
of 5% or more of the EQK Shares (excluding ART) (each a "5% Holder") who had
acquired or experienced a change in ownership in EQK Shares during the past
three years. The merger would result in the EQK Shareholders (other than LLPM
and Greenspring Fund, Incorporated ("Greenspring") which would sell all of their
shares in the stock purchase transactions) retaining all of their EQK Shares and
receiving a combination of cash and ART Preferred Shares. The public EQK
Shareholders' aggregate percentage interest in EQK would be reduced as a result
of the issuance of EQK Shares to ART pursuant to the merger. This reduction in
percentage interest would effectively be equivalent to the sale by each public
EQK Shareholder of approximately 25% of such EQK Shareholder's shares at the
same price per share ($.40 in cash and a portion of an ART Preferred Share with
a Liquidation Value of $1.85) as was to be offered in the exchange offer. It was
then contemplated that LLPM and Greenspring would receive for each EQK Share
sold by them a portion of an ART Preferred Share with a Liquidation Value of
$2.25.
On July 9, 1997, ART and EQK entered into a revised cost sharing agreement
that reflected the change in the proposed structure of the transaction from an
exchange offer to a merger. The terms and conditions of the revised cost sharing
agreement remained substantially the same.
During August and September 1997, the Financial Advisor evaluated the
revised structure of the transaction and recommended that the consideration to
be paid to LLPM and Greenspring in connection with the Block Purchase should be
reduced to 0.185 shares of ART Preferred Stock per EQK Share. This
recommendation was adopted and, as a result, the non-cash consideration per
share to other EQK Shareholders was increased from 0.0492 to 0.0616 of an ART
Preferred Share. As a condition precedent to the Merger, ART would enter into
the Block Purchase with LLPM and Greenspring whereby ART would purchase all of
the EQK shares held by LLPM and Greenspring (2,269,356 shares or approximately
23.56% of the outstanding EQK Shares prior to the Merger) in exchange for 0.185
ART Preferred Shares (having a liquidation value of $1.85 per share) per each
EQK Share for an aggregate of 419,831 ART Preferred Shares (having an aggregate
liquidation value of $4,198,309). Together with the EQK Shares it proposed to
acquire in connection with the merger, ART would own 49% of the issued and
outstanding EQK Shares.
As a further condition precedent to the Merger, ART agreed to offer to
enter into a Standstill Agreement with each 5% Holder of EQK Shares (other than
LLPM and Greenspring) whereby ART would pay $0.10 per existing EQK Share held by
the two remaining 5% Holders (paid on a maximum of 2,156,600 shares or a maximum
of $215,660 in cash) as compensation for such holder's agreement not to sell any
of its EQK Shares or acquire any additional EQK Shares for a period of 42 months
after the consummation of the Merger.
As consideration for the Merger, the Public EQK Shareholders would have
been entitled to receive approximately 453,552 ART Preferred Shares (having a
liquidation value of $4,535,519) and $1,884,891 in cash. Each Public EQK
Shareholder would also have been entitled to retain its EQK Shares. In addition,
as consideration for the Merger, ART would be entitled to receive 4,804,761
newly-issued EQK Shares.
ART had also agreed to issue 333,500 ART Preferred Shares (having a
Liquidation Value of $3,335,000) to LLPM in settlement of deferred advisory and
disposition fees owed by EQK to LLPM under the Advisory Agreement. One- half of
the deferred advisory fee (136,000 ART Preferred Shares having a Liquidation
Value of $1,360,000) would have been paid to LLPM at closing, and the other half
would have been paid to LLPM three years after the Closing Date. BCM would act
as successor advisor to EQK under the terms and conditions of a new advisory
agreement.
On September 30, 1997, the Financial Advisor orally issued a revised
fairness opinion with respect to the proposed Merger.
On September 30, 1997 and November 13, 1997, the EQK Board and the ART
Board, respectively, approved the terms of the initial Agreement and Plan of
Merger (the "Original Merger Agreement").
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In October 1997 Mr. Brown contacted Greenspring regarding its interest in
the Block Purchase. From September 30, 1997 until December 24, 1997 the parties
held numerous telephone conferences to finalize the definitive agreements for
the Merger and Block Purchase.
On December 24, 1997, ART and EQK issued a joint press release to the
effect that the Original Merger Agreement had been signed.
On January 6, 1998, ART filed the Registration Statement with the
Commission.
In January 1998, Halperin filed a Schedule 13D with the Commission
disclosing that he had purchased 854,200 EQK Shares during the period from
December 26, 1997 through January 20, 1998 (the "Halperin Purchase"). During
January and February of 1998, Messrs. Stuart and Brown had several discussions
regarding the Halperin Purchase. After consulting with its counsel, ART decided
that it would make an offer to Halperin to purchase his EQK Shares after the
Registration Statement had been declared effective by the Commission. Such offer
would be made upon the same terms and conditions as ART's offer to purchase the
EQK Shares held by LLPM and Greenspring. If Halperin declines such offer, ART
will amend the Registration Statement to reflect such fact, but the
consideration to be paid to the Public EQK Shareholders, LLPM and Greenspring in
connection with the Merger and the Block Purchase would remain the same.
On February 20, 1998, ART received the Commission's comments to the
Registration Statement.
During March and April 1998, ART and EQK prepared their respective
responses to the Commission's comments to the Registration Statement.
On March 19, 1998, Prudential gave EQK notice of its intent to exercise the
Prudential Warrants. The Prudential Warrants were exercised on April 8, 1998,
and on May 7, 1998, 367,868 EQK Shares were issued to Prudential.
On April 23, 1998, the NYSE announced that trading in the EQK Shares would
be suspended prior to the opening of the NYSE on May 4, 1998 because EQK had
fallen below the NYSE's continued listing criteria for net tangible assets
available to common stock (less than $12 million) and 3-year average net income
(less than $600,000).
During May 1998, Mr. Brown informed Mr. Stuart that the EQK Board had
decided that it was in the best interests of the EQK Shareholders to terminate
the Original Merger Agreement and to sell the Center and distribute the net
liquid assets to the EQK Shareholders. Mr. Brown stated that the EQK Board was
concerned that the Original Merger Agreement would hinder EQK's ability to
consummate a sale of the Center prior to December 15, 1998, the date on which
the forbearance agreement relating to the Center's mortgage terminates.
During May 1998, Mr. Brown and Mr. Stuart held various discussions
regarding the proposed termination of the Original Merger Agreement. On May 15,
1998, Mr. Stuart executed and delivered to Mr. Brown a letter setting forth
ART's desire to continue discussions with EQK for a modified structure and ART's
consent to the proposed sale of the Center prior to the consummation of the
Merger.
During May through August of 1998, Mr. Brown and Messrs. Stuart and Rossi
held further discussions regarding a revised structure for the Merger in which
ART would permit EQK to sell the Center prior to the consummation of the Merger
and EQK would agree to purchase the Oak Tree Village from ART upon terms that
were mutually acceptable to EQK and ART. The parties agreed to reduce the
consideration to be paid by ART in connection with the Merger and the Block
Purchase since the EQK Shareholders (including LLPM, Greenspring and Halperin)
would receive the net proceeds from the sale of the Center. The parties agreed
that the consideration to be paid to LLPM, Greenspring and Halperin in
connection with the Block Purchase would be a portion of an ART Preferred Share
with a liquidation value of $0.328 per EQK Share purchased and the consideration
to be paid to the Public EQK Shareholders would be a portion of an ART Preferred
Share with a liquidation value of $0.157 per EQK Share, with the Public EQK
Shareholders retaining all of their EQK Shares subject to the dilution resulting
from the issuance of additional EQK Shares as the ART Merger Consideration.
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As a result of the revised structure and the sale of the Center prior to
the consummation of the Merger, the EQK Board determined that it would no longer
be practicable to obtain a fairness opinion with respect to the Merger. In this
regard, EQK obtained the right to solicit and negotiate regarding alternate
proposals subject to the obligation to make certain termination payments under
certain specified circumstances as described under "The Proposed Merger and
Related Matters -- Solicitation Permitted; Board Action; Fees and Expenses."
In August 1998, Summit and Sutter each filed a Schedule 13G with the
Commission disclosing that they had purchased an aggregate of 1,252,500 EQK
Shares (the "Summit/Sutter Purchases"). These purchases were from one of the 5%
Holders. During August 1998, Mssrs. Stuart and Brown had several discussions
regarding the impact of the Summit/Sutter Purchases. One effect of the
Summit/Sutter purchases was to reduce, as a result of tax considerations, the
number of shares that ART could purchase that were held by Public EQK
Shareholders. As a result, the parties determined that the terms of the
consideration for the Merger and the Block Purchases should be adjusted so that
the consideration to be paid to LLPM, Greenspring, Summit, Sutter and Halperin
in connection with the Block Purchase would be a portion of an ART Preferred
Share with a liquidation value of $0.30 per EQK Share purchased and the
consideration to be paid to the Public EQK Shareholders would be a portion of an
ART Preferred Share with a liquidation value of $0.14 per EQK Share, with the
Public EQK Shareholders retaining all of their EQK Shares subject to the
dilution resulting from the issuance of additional EQK Shares as the ART Merger
Consideration. Upon reaching a preliminary agreement as to the consideration for
the Merger and the Block Purchases, ART then offered to purchase from Summit and
Sutter all of their respective EQK Shares upon the same terms and conditions as
the LLPM and Greenspring purchases. Each of Summit and Sutter has accepted ART's
purchase offer. Additionally, on August 27, 1998, Summit and Sutter each
purchased one half of Greenspring's total EQK shares, thereby increasing the
number of shares to be acquired by ART from Summit and Sutter pursuant to the
Block Purchases.
As a condition precedent to the Merger, ART also agreed to offer to enter
into a Standstill Agreement with the remaining 5% Holder (other than LLPM,
Summit, Sutter and Halperin) whereby ART would pay $0.10 per existing EQK Share
held by the such 5% Holder (paid on a maximum of 906,600 shares or a maximum of
$90,660 in cash) as compensation for such 5% Holder's agreement not to sell any
of its EQK Shares or acquire any additional EQK Shares for a period of 42 months
after the consummation of the Merger.
On August 25, 1998, ART and EQK executed the Merger Agreement.
ART's Purpose for the Merger. ART intends to acquire an aggregate of
5,050,032 EQK Shares pursuant to the Block Purchase and the Merger for the
purpose of investment and in order to achieve the listing of the ART Preferred
Shares on the NYSE. The ART Board believes that the issuance and the proposed
listing of the ART Preferred Shares on the NYSE in connection with the Merger
would provide ART with greater access to the public capital markets for future
acquisition transactions. The ART Board also considered the amount of EQK's net
operating losses (the "NOLs") which approximate $94,000,000 as of June 30, 1998
and the resulting benefits to ART of acquiring an indirect interest in such NOLs
through EQK pursuant to the Merger. Assuming market conditions, industry
conditions and EQK's business and financial condition do not suffer adversely in
the interim, it is currently ART's intention (but not obligation) to seek to
acquire substantially all of the remaining outstanding EQK Shares at some time
after the third anniversary of the consummation of the Merger for consideration
of 0.0486 of an ART Preferred Share (with a Liquidation Value for such portion
of an ART Share of $0.486) per currently outstanding EQK Share. Notwithstanding
the foregoing, ART is not obligated to make any further acquisition of EQK
Shares and no assurance can be given that ART will make any such acquisitions in
the future. In addition, any such acquisitions may be for a consideration per
EQK Share which is greater or less than the consideration offered in the Merger.
EQK Board Recommendation. The EQK Board believes that the Merger is fair
to, and in the best interests of, EQK and the EQK Shareholders. The EQK Board
also believes that the proposed amendments to the Declaration of Trust as
described herein under "The Declaration Amendment Proposal" are in the best
interests of EQK and the EQK Shareholders in order to facilitate the Merger. The
EQK Board has unanimously approved the terms and conditions of the Merger and
the proposed amendments to the Declaration of Trust and the transactions
contemplated thereby as set forth in the Merger Agreement and unanimously
recommends that the EQK Shareholders vote FOR the Declaration Amendment
Proposal, the Merger Proposal and the New Advisory Agreement Proposal. See "The
Proposed Merger and Related Matters."
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<PAGE> 25
Conditions of the Merger. The Merger is conditioned upon, among other
things, (i) EQK's sale of the Center and distribution of the net liquid assets
to the EQK shareholders, (ii) the consummation of the Block Purchase, (iii) the
Requisite Shareholder Approval of the Merger-Related Proposals, (iv) the
acquisition by EQK from ART of the Oak Tree Village upon the terms and
conditions described herein under "The Proposed Merger and Related Matters --
Sale of the Center and Acquisition of Oak Tree Village," (v) the execution by
each 5% Holder (other than LLPM, Summit, Sutter and Halperin) of an agreement
pursuant to which such 5% Holder will receive $0.10 in cash per EQK Share held
by such 5% Holder in exchange for a restriction on the rights of such 5% Holder
to sell or purchase any EQK Shares for a period of 42 months after the
consummation of the Merger (a "Standstill Agreement"), (vi) the authorization of
the ART Preferred Shares for listing on the NYSE, subject to official notice of
issuance, (vii) no stop order suspending the effectiveness of the Registration
Statement having been issued and no proceedings for that purpose having been
initiated or threatened by the Commission, (viii) no order, injunction or decree
issued by any court or agency of competent jurisdiction or other legal restraint
or prohibition preventing the consummation of the Merger, (ix) the receipt by
ART and EQK of all required material governmental authorizations, permits,
consents, orders or approvals, (x) the receipt of all licenses, permits,
consents, approvals and authorizations from all third parties and governmental
bodies and agencies which are necessary in connection with consummation of the
Merger and the conduct of EQK's business after the Merger (xi) EQK operating in
all respects in its ordinary course of business without any material adverse
change in its business, properties or financial condition, (xii) the receipt by
ART of written resignations from all members of the current EQK Board, (xiii)
the number of outstanding EQK Shares immediately prior to the Merger being
9,632,212 and no additional EQK Shares or other equity interests or any option,
warrant, right or other security exercisable for, convertible into or
exchangeable for EQK Shares or other equity interests in EQK being issued since
June 30, 1998, and (xiv) the representations and warranties of EQK in the Merger
Agreement being true, complete and accurate in all material respects as of the
date when made and as of the date the Merger is consummated. See "The Proposed
Merger and Related Matters -- Conditions to the Merger; Termination; Waiver and
Amendment."
ART and EQK may, by an appropriate instrument executed at any time prior to
the Effective Time, whether before or after the Requisite Shareholder Approval
is obtained, amend the Merger Agreement; provided that after the receipt of such
approvals, no amendment or modification may be made which alters the amount or
changes the form of the EQK Merger Consideration or ART Merger Consideration.
The parties to the Merger Agreement may, at any time prior to the Effective
Time, by action taken by their Board of Directors or Trustees, as applicable:
(i) extend the time for the performance of any of the obligations or other acts
of the other party; (ii) waive any inaccuracies in the representations and
warranties contained in the Merger Agreement or in any document delivered
pursuant thereto and (iii) subject to limitations on amendment, waive compliance
with any of the agreements or conditions contained in the Merger Agreement to
the extent permitted by law. EQK intends to resolicit shareholder approval for
the Merger if EQK desires to waive any material conditions to the Merger
Agreement.
Effect of Merger on Market for EQK Shares. The sale of the Center, the
resulting distribution of the net liquid assets to the EQK Shareholders, the
Block Purchase, the Merger and the Standstill Agreements will have the
cumulative effect of reducing the number of EQK Shares that are likely to trade
publicly. This may adversely affect the liquidity of the market for EQK Shares
after the Merger. As a result of this and the dilution resulting from the
issuance of additional EQK Shares as the ART Merger Consideration, the market
value of the remaining EQK Shares held by the Public EQK Shareholders is likely
to be materially adversely affected. See "The Proposed Merger and Related
Matters -- Effect of Merger on Market for EQK Shares; Registration Under the
Exchange Act." herein.
Regulatory and Foreign Approvals. To the best of ART's knowledge, ART is
not aware of any license or regulatory permit that appears to be material to its
business that might be adversely affected by its acquisition of EQK Shares in
connection with the Merger or of any approval or other action by any government
or governmental, administrative or regulatory authority or agency, domestic or
foreign, that would be required for the acquisition or ownership of EQK Shares
pursuant to the Merger. Should any such approval or other action be required,
ART currently contemplates that it will seek such approval or other action.
There can be no assurance that any such approval or other action, if needed,
would be obtained or would be obtained without substantial conditions or that
the failure to obtain any such approval or other action might not result in
adverse consequences to ART's business. ART intends to make all required filings
under the Securities Act, the Exchange Act and state securities laws.
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<PAGE> 26
Availability of Appraisal Rights. No statutory dissenter's appraisal rights
will be available to EQK shareholders in connection with the Merger and it is
the position of EQK that no common law dissenter's rights will be available in
connection with the Merger; however, any EQK shareholder who wishes to assert
common law dissenter's appraisal rights may file with the Secretary of EQK
Realty Investors I a written notice stating such shareholder's intent to dissent
to the Merger at the EQK Meeting and to assert such rights. In the event that
holders of more than 3% of the outstanding EQK Shares assert such dissenter's
appraisal rights, the Merger Agreement may be terminated. For a detailed
discussion of the procedures that may be required to exercise this right should
it be available, see "The Proposed Merger and Related Matters -- Availability of
Appraisal Rights."
The Merger Agreement. The Merger Agreement provides that, subject to the
satisfaction or waiver of certain conditions, ART Newco will be merged with and
into EQK, whereupon the separate existence of ART Newco will cease and EQK will
be the surviving entity of the Merger. The Merger will become effective upon the
filing of a Certificate of Merger with the Secretary of the Commonwealth of
Massachusetts (the "Effective Time"). At the Effective Time, ART will pay the
EQK Merger Consideration to the EQK Shareholders and EQK will pay the ART Merger
Consideration to ART. See "The Proposed Merger and Related Matters."
The Merger Agreement may be terminated and the Merger abandoned prior to
the Effective Time, whether before or after the EQK Shareholder Approvals are
obtained, as follows: (i) by mutual written consent of ART, ART Newco and EQK;
(ii) by ART Newco or ART, on or after December 15, 1998, if any of the
conditions precedent to ART or ART Newco's obligations under the Merger
Agreement have not been met or, to the extent permitted by applicable law, have
not been waived in writing by ART and ART Newco prior to such date, (iii) by EQK
on or after December 15, 1998, if any of the conditions precedent to EQK's
obligations under the Merger Agreement have not been met or, to the extent
permitted by applicable law, have not been waived in writing by EQK prior to
such date; (iv) by EQK if EQK accepts a proposal from a party other the ART or
ART's affiliates concerning a merger, sale of substantial assets or similar
transaction involving EQK or the sale of any EQK Shares, (iv) by EQK upon a
determination by the EQK Board that, in the exercise of its fiduciary duties, it
can no longer recommend the approval of the Merger-Related Proposals to the EQK
Shareholders (a "Negative Determination"), or (v) by EQK if the EQK Board
determines that compliance with the Merger Agreement is reasonably likely to
materially impair or delay its ability to sell the Center or result in a
material reduction in the consideration that would be received by EQK or the EQK
Shareholders in connection with such sale.
Under the Merger Agreement, the EQK Board has agreed to propose and
recommend to the EQK Shareholders at the EQK Annual Meeting the adoption and
approval of the Declaration Amendment Proposal, the New Advisory Agreement
Proposal and the Merger Proposal, each as described herein.
DECLARATION AMENDMENT PROPOSAL
In connection with the Merger, subject to the Requisite Shareholder
Approval, EQK's Declaration of Trust will be amended and restated (such
Declaration of Trust, as so amended and restated, the "Amended Declaration of
Trust") to, among other things, (i) extend the finite life of EQK for an
additional 20 year period, (ii) reduce the number of EQK Shareholders required
to vote on the duration of EQK and approve certain other amendments of the
Declaration of Trust from three-quarters to a majority, (iii) remove certain
prohibitions on investments and activities, including (a) prohibitions on the
issuance of additional EQK Shares or other securities, (b) restrictions on
additional investments in the fee ownership of real estate and investments in
mortgage loans and unimproved, non-income producing real property, and (c)
aggregate borrowing restrictions, (iv) authorize an unlimited number of EQK
Shares, (v) revise certain provisions with respect to the number of trustees
unaffiliated with EQK and voting requirements in respect thereof, (vi) add
specific provisions restricting the ownership of more than 4.9% of the
outstanding EQK Shares by any single shareholder, other than ART and E.I. DuPont
de Nemours Co. Inc. Trust Fund ("duPont") (the "Ownership Limit"), (vii) change
the name of EQK to "ART Realty Investors I," and (viii) reduce the number of
members of the EQK Board (each, a "Trustee") required to approve certain
matters. See "Risk Factors -- Potential Adverse Consequences of the Declaration
of Amendment Proposal" and "Declaration of Trust -- Statement of Policy" and
"--Amendment Procedure." The full text of the Amended Declaration of Trust is
attached hereto as Appendix D.
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<PAGE> 27
NEW ADVISORY AGREEMENT PROPOSAL
Upon consummation of the Merger and subject to Requisite Shareholder
Approval of the Merger-Related Proposals by the New EQK Board (as defined herein
under "The Board Election Proposal"), LLPM will terminate its rights and duties
as Advisor under the Advisory Agreement and BCM, an affiliate of and advisor to
ART, will enter into the New Advisory Agreement pursuant to which BCM will
become the New Advisor of EQK. See "The New Advisory Agreement Proposal" herein.
The full text of the New Advisory Agreement is attached hereto as Appendix C.
BOARD ELECTION PROPOSAL
The term of office of each Trustee expires at the EQK Annual Meeting or
when the respective successor is elected and qualifies. At the EQK Annual
Meeting, the EQK Shareholders, voting together as a class, will be asked to
consider and vote upon the Board Election Proposal. The Board Election Proposal
will require the affirmative vote of EQK Shareholders representing a majority of
the total votes authorized to be cast by EQK Shares then outstanding which are
present at the meeting in person or by proxy and entitled to vote thereon. See
"The Board Election Proposal."
NEW YORK STOCK EXCHANGE LISTING OF ART PREFERRED SHARES
Following the execution of the Merger Agreement by EQK, ART will promptly
take such actions as are necessary and within its control to cause the ART
Preferred Shares to become listed on the NYSE. Approval of the listing of such
shares for trading on the NYSE is a condition to the respective obligations of
ART and EQK to consummate the Merger. See "The Proposed Merger and Related
Matters -- Conditions to the Merger; Termination, Waiver and Amendment."
REGULATORY APPROVAL
Other than (i) the Commission's declaring the Registration Statement
effective , (ii) certain approvals in connection with compliance with applicable
Blue Sky or state securities laws, (iii) the filing of the Certificate of Merger
with the Secretary of the Commonwealth of Massachusetts, (iv) the filing of such
reports under Section 13(a) of the Exchange Act as may be required subsequent to
the Merger in connection with the Merger Agreement, and (v) such filings as may
be required in connection with the payment of any transfer taxes, neither ART's
nor EQK's management believes that any filing with or approval of any
governmental authority is necessary in connection with the consummation of the
Merger.
THE EQK ANNUAL MEETING
The EQK Annual Meeting will be held at the corporate offices of EQK, 5775
Peachtree Dunwoody Road, Suite 200D, Atlanta, Georgia on __________, 1998, at
9:00 a.m., Eastern Standard Time. At the EQK Annual Meeting, the EQK
Shareholders, voting together as a class, will be asked to consider and vote
upon the Proposals.
The Board Election Proposal will require the affirmative vote of EQK
Shareholders representing a majority of the total votes authorized to be cast by
EQK Shares then outstanding which are present at the EQK Annual Meeting in
person or by proxy and entitled to vote thereon. The Merger-Related Proposals
will each require the Requisite Shareholder Approval. None of the Merger-Related
Proposals will take effect unless all such proposals receive the Requisite
Shareholder Approval. LLPM, Summit and Sutter have agreed to vote their EQK
Shares in favor of the Merger-Related Proposals. LLPM, Summit, Sutter and
Halperin currently own 17.50%, 9.52%, 9.55% and 8.9%, respectively, of the
issued and outstanding EQK Shares. ART does not currently and will not own any
EQK Shares at the time of the EQK Annual Meeting.
As of June 30, 1998, Trustees and executive officers of EQK as a group
beneficially held EQK Shares representing less than 1% of all the votes entitled
to be cast by EQK Shareholders at the EQK Annual Meeting and as of the EQK
Record Date, such persons as a group held outstanding EQK Shares representing
less than 1% of such shares. The Block Purchase will not be consummated unless
the EQK Shareholders first approve the Merger-Related Proposals at the EQK
Annual Meeting. See "The EQK Annual Meeting."
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<PAGE> 28
A proxy may indicate that all or a portion of the shares represented by
such proxy are not being voted with respect to a specific proposal. This could
occur, for example, when a broker is not permitted to vote shares held in street
name on certain proposals in the absence of instructions from the beneficial
owner. Such broker non-votes and abstentions will be considered as not present
and entitled to vote on such proposal, even though such shares will be
considered present for purposes of determining a quorum and voting on other
proposals. BECAUSE APPROVAL OF THE MERGER-RELATED PROPOSALS AT THE EQK ANNUAL
MEETING REQUIRES THE AFFIRMATIVE VOTE OF THREE QUARTERS OF THE OUTSTANDING EQK
SHARES AS DESCRIBED MORE FULLY IN "THE EQK ANNUAL MEETING--MATTERS TO BE
CONSIDERED AT THE EQK ANNUAL MEETING," ANY BROKER NON-VOTES OR ABSTENTIONS ON
THE PROPOSALS WILL HAVE THE SAME EFFECT AS A VOTE "AGAINST" THE MERGER-RELATED
PROPOSALS AND ACCORDINGLY WILL AFFECT WHETHER THE MERGER-RELATED PROPOSALS WILL
BE APPROVED.
FEDERAL INCOME TAX CONSIDERATIONS
In the opinion of Andrews & Kurth L.L.P. ("Tax Counsel"), the issuance of
(i) the ART Preferred Shares and cash to the Public EQK Shareholders as the EQK
Merger Consideration and (ii) the EQK Shares to ART as the ART Merger
Consideration pursuant to the Merger will be treated as a taxable transaction
for Federal income tax purposes. Such opinion is not binding on the Internal
Revenue Service or any court and is subject to the accuracy of certain facts and
assumptions stated and referenced therein, and no ruling has been sought from
the Internal Revenue Service as to the Federal income tax consequences of the
Merger.
In general, a Public EQK Shareholder will recognize a gain equal to the
fair market value of the EQK Merger Consideration over the adjusted tax basis of
EQK Shares deemed sold in the taxable Merger. It is expected that such Public
EQK Shareholders will be deemed to have sold approximately 3.6% of their
respective EQK Shares held before the Merger. Such gain will be treated as a
capital gain if the EQK Shares are capital assets in the hands of the Public EQK
Shareholder.
The tax consequences described in the preceding paragraphs may not apply to
certain non-resident aliens and foreign corporations and stockholders who are
otherwise subject to special tax treatment under the Code.
The Federal income tax consequences set forth above are for general
information only. Each Public EQK Shareholder is urged to consult his own tax
advisor to determine the particular tax consequences to him of the Merger,
including the applicability and effect of state, local and other tax laws. See
"The Merger -- Federal Income Tax Consequences" herein.
DESCRIPTION OF ART PREFERRED SHARES
The ART Board has designated and authorized the issuance of 7,500,000 ART
Preferred Shares with a par value of $2.00 per share and a preference on
liquidation equal to the Liquidation Value ($10.00 per share) plus the amount of
any accrued and unpaid dividends. The Liquidation Value plus such amount is
referred to as the "Adjusted Liquidation Value." The ART Preferred Shares are
non-voting except (i) as provided by law, (ii) with respect to an amendment to
ART's articles of incorporation or bylaws that would materially alter or change
the existing terms of the ART Preferred Shares, and (iii) at any time or times
when all or any portion of the dividends on the ART Preferred Shares for any six
quarterly dividends, whether or not consecutive, shall be in arrears and unpaid.
In the latter event, the number of directors constituting the ART Board shall be
increased by two and the holders of ART Preferred Shares, voting separately as a
class, shall be entitled to elect two directors to fill such newly created
directorships with each holder being entitled to one vote in such election for
each share of ART Preferred Shares held. ART is not obligated to maintain a
sinking fund with respect to the ART Preferred Shares.
The ART Preferred Shares are convertible, at the option of the holder, into
fully paid and nonassessable ART Common Shares at any time and from time to
time, in whole or in part, after the earliest to occur of (i) the August 15,
2003; (ii) the first business day, if any, occurring after a Quarterly Dividend
Payment Date (as defined below) on which dividends equal to or in excess of 5%
of the Liquidation Value (i.e., $0.50 per ART Preferred Share) are accrued and
unpaid, or (iii) ART becomes obligated to mail a statement, signed by an officer
of ART, to the holders of record of each
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<PAGE> 29
of the ART Preferred Shares because of a proposal by ART, to merge or
consolidate with or into any other corporation (unless ART is the surviving
entity and holders of ART Common Shares continue to hold such ART Common Shares
without modification and without receipt of any additional consideration), or to
sell, lease, or convey all or substantially all its property or business, or to
liquidate, dissolve or wind up. The ART Preferred Shares are convertible into
that number of shares of ART Common Shares obtained by multiplying the number of
ART Preferred Shares being converted by $10.00, then adding all accrued and
unpaid dividends, then dividing such sum by (in most instances) 90% of the
simple average of the daily closing price of the ART Common Shares for the 20
business days ending on the last business day of the calendar week immediately
preceding the date of conversion on the principal stock exchange on which such
ART Common Shares are then listed (the "Conversion Price"). Notwithstanding the
foregoing, ART, at its option, may elect to redeem any ART Preferred Shares
sought to be so converted by paying the holder of such ART Preferred Shares cash
in an amount equal to the Conversion Price.
The ART Preferred Shares bear a cumulative, compounded dividend per share
equal to 10% per annum of the Accumulated Liquidation Value, payable quarterly
on the 15th day of the month following the end of each calendar quarter (each, a
"Quarterly Dividend Payment Date"), and commencing accrual on the date of
issuance to and including the date on which the redemption price of such shares
is paid, whether or not such dividends have been declared and whether or not
there are profits, surplus or other funds of ART legally available for the
payment of such dividends. Dividends on the ART Preferred Shares are in
preference to and with priority over dividends upon the ART Common Shares.
Except as described in the following sentence, the ART Preferred Shares rank on
a parity as to dividends and upon liquidation, dissolution or winding up with
all other Special Stock (as defined herein under "Description of Capital Stock
of ART") issued by ART. ART will not issue any shares of Special Stock of any
series which are superior to the ART Preferred Shares as to dividends or rights
upon liquidation, dissolution or winding up of the corporation as long as any
ART Preferred Shares are issued and outstanding, without the prior written
consent of the holders of at least 662/3% of such ART Preferred Shares then
outstanding voting separately as a class. As of August 25, 1998, ART had
outstanding 3,350,000 ART Preferred Shares, 16,681 shares of Series C 10%
Cumulative Preferred Stock, and 1,000 shares of Series G 10% Cumulative
Convertible Preferred Stock.
ART may redeem any or all of the ART Preferred Shares at any time and from
time to time, at its option, for cash upon no less than 20 days nor more than 30
days prior notice thereof. The redemption price of ART Preferred Shares to be
redeemed shall be an amount per share equal to (i) 104% of the Adjusted
Liquidation Value of such shares during the period from August 16, 1998 through
August 15, 1999; and (ii)103% of the Adjusted Liquidation Value of such shares
at any time on or after August 16, 1999.
There is no established trading market for the ART Preferred Shares. While
the listing of the ART Preferred Shares on the NYSE is a condition precedent to
EQK's obligation to consummate the Merger, there can be no assurance that an
active market for the ART Preferred Shares will develop or be sustained in the
future on the NYSE or otherwise. There is no assurance that the ART Preferred
Shares will have a market value at or near their Adjusted Liquidation Value if
they are listed on the NYSE. See "Risk Factors -- ART Preferred Shares."
DESCRIPTION OF EQK SHARES
EQK is currently authorized to issue 10,055,555 EQK Shares, and the EQK
Board may not currently issue any additional EQK Shares unless such issuance is
approved by the holders of three-quarters of the outstanding EQK Shares. As of
June 30, 1998, there were 9,632,212 EQK Shares issued and outstanding. Subject
to Requisite Shareholder Approval, EQK's Declaration of Trust will be amended to
remove all limitations on the authorized number of EQK Shares that may be issued
by the EQK Board. See "Risk Factors -- Potential Adverse Consequences of the
Declaration Amendment Proposal -- Possible Issuance of Additional EQK Shares or
Other Securities." The EQK Shareholders are entitled to receive and to
participate ratably in dividends, when and as declared by the EQK Board out of
any funds legally available for such purpose and, in the event of termination of
EQK or upon the distribution of its net assets, to receive and to participate
ratably in payments and distributions. All EQK Shares have equal voting rights.
The EQK Shares do not have any preference, appraisal, conversion, exchange or
preemptive rights. Outstanding EQK Shares are freely transferable, subject to
the Ownership Limit (if the Declaration Amendment Proposal is adopted and
implemented) and except that, in certain limited circumstances, the EQK Board
currently may refuse to transfer EQK Shares or may compel redemption of EQK
Shares. See "Description of the EQK Shares." The outstanding EQK Shares
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<PAGE> 30
have been legally issued and are fully paid and nonassessable, except to the
extent of any personal liability of the EQK Shareholders as described herein
under "Description of the EQK Shares."
THE DEALER MANAGER
Interfirst Capital Corporation, a California corporation that is an
affiliate of ART and BCM, will act as dealer manager ("Dealer Manager") for the
Merger. The Dealer Manager will be responsible for distributing the EQK Merger
Consideration to the Public EQK Shareholders in certain jurisdictions to the
extent required by applicable state law. The Dealer Manager will be entitled to
receive a reasonable and customary fee for such services, plus reimbursement for
out-of-pocket expenses, and ART will indemnify the Dealer Manager against
certain liabilities and expenses in connection with the Merger, including
liabilities under federal securities laws. The telephone number of the Dealer
Manager is (214) 692-4713.
MARKET AND TRADING INFORMATION
Prior to May 4, 1998, the EQK Shares were listed and traded on the NYSE. On
April 23, 1998, the NYSE announced that trading of the EQK Shares would be
suspended prior to the opening of the NYSE on May 4, 1998, as EQK had fallen
below the NYSE's continued listing criteria for net tangible assets available to
common stock (less than $12 million) and 3-year average net income (less than
$600,000). The EQK Shares are currently included for quotation on the OTC
Bulletin Board. The over-the-counter market quotations reflect interdealer
prices, without retail mark-up, mark-down or commission and may not necessarily
represent actual transactions. The following table sets forth for the calendar
periods indicated the high and low per share closing sales prices for the EQK
Shares as reported in published financial sources:
<TABLE>
<CAPTION>
Year Ended December 31, 1998 HIGH LOW
---- ---
<S> <C> <C>
First Quarter $2.063 $1.000
Second Quarter 1.313 0.250
Third Quarter (through August 25, 1998) 1.063 0.625
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31, 1997 HIGH LOW
---- ---
<S> <C> <C>
First Quarter $1.625 $1.375
Second Quarter 1.500 1.125
Third Quarter 1.250 1.062
Fourth Quarter 1.250 0.813
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31, 1996 HIGH LOW
---- ---
<S> <C> <C>
First Quarter $1.500 $1.125
Second Quarter 1.750 1.250
Third Quarter 1.750 1.375
Fourth Quarter 1.500 1.250
</TABLE>
EQK has not paid any dividends with respect to the EQK Shares since 1991.
On August 25, 1998, the last trading day prior to the public announcement of the
Merger Agreement, the closing sales price of the EQK Shares as reported in the
over-the-counter market was $0.843 per EQK Share, and on September 1, 1998, the
most recent date for which prices were available prior to the date of filing
this Prospectus/Proxy, the average of the bid and asked price of the EQK Shares
as reported in the over-the-counter market was $0.8125 per EQK Share. EQK
Shareholders are urged to obtain a current market quotation for the EQK Shares.
See "Risk Factors -- Delisting of the EQK Shares and Adverse Effect on Trading".
-14-
<PAGE> 31
HOLDERS OF EQK SHARES ARE URGED TO OBTAIN CURRENT INFORMATION WITH RESPECT
TO THE SALES PRICES OF THE EQK SHARES.
While the listing of the ART Preferred Shares on the NYSE is a condition
precedent to EQK's obligation to consummate the Merger, there can be no
assurance that an active market for the ART Preferred Shares will develop or be
sustained in the future on the NYSE or otherwise. Listing will depend upon the
satisfaction of the NYSE's listing requirements with respect to the ART
Preferred Shares. Accordingly, no assurance can be given as to the liquidity of,
or trading for, the ART Preferred Shares.
COMPARATIVE PER SHARE DATA
The following table sets forth per share data of the ART Common Shares and
EQK Shares on both historical and pro forma combined bases. This table should be
read in conjunction with the historical and financial statements and notes
thereto contained in ART's Annual Report on Form 10-K (the "ART Form 10-K") for
the year ended December 31, 1997 and EQK's Annual Report on Form 10-K (the "EQK
Form 10-K") for the year ended December 31, 1997, each of which is incorporated
by reference herein, and in conjunction with the unaudited pro forma combined
financial information appearing elsewhere in this Prospectus/Proxy Statement.
Pro forma combined per share data reflects the historical results of ART
combined with EQK under the equity method of accounting as if the Merger had
been consummated for all periods presented. This information has been prepared
on the basis of accounting for the Merger as a purchase and is based on the
assumptions set forth in the notes thereto. The pro forma share data is not
necessarily indicative of actual results had the Merger been consummated on such
dates or of future expected result
ART COMMON SHARES
<TABLE>
<CAPTION>
Historical Proforma Combined
---------- -----------------
<S> <C> <C>
Income (loss) per share
Six months ended
June 30, 1998 $0.53 0.49
Fiscal year ended
December 31, 1997 (0.22) (0.27)
Cash dividends per Common Share
Six months ended
June 30, 1998 $0.10 $0.10
Fiscal year ended
December 31, 1997 0.20 0.20
Book Value per Common Share
June 30, 1998 $3.30 $3.30
December 31, 1997 $3.86 $3.86
</TABLE>
-15-
<PAGE> 32
EQK SHARES
<TABLE>
<CAPTION>
Historical Proforma Combined
---------- -----------------
<S> <C> <C>
(Loss) per share
Six months ended
June 30, 1998 ($0.05) ($0.01)
Fiscal year ended
December 31, 1997 ($0.21) ($0.05)
Cash dividends per Common Share
Six months ended
June 30, 1998 -- --
Fiscal year ended
December 31, 1997 -- --
Book Value per Common Share
June 30, 1998 ($0.57) $0.00
- -------------------------
</TABLE>
-16-
<PAGE> 33
RISK FACTORS
EQK Shareholders should consider, among other things, the following risk
factors in connection with the transactions contemplated by the Merger. These
factors are intended to identify the significant sources of risk affecting an
investment in the ART Preferred Shares and the EQK Shares.
POSSIBLE DETRIMENTAL EFFECTS OF THE MERGER
Dilution of Current EQK Shareholders and Likely Decline in Trading Price
per EQK Share. The sale of the Center and the resulting distribution to EQK
Shareholders, as well as the issuance of EQK Shares to ART as the ART Merger
Consideration, is likely to result in the trading price of EQK Shares declining
substantially. As a result of the distribution to EQK Shareholders and the
acquisition of Oak Tree Village for a note in the full amount of the purchase
price, EQK is not expected to have any net worth after the Merger.
Anti-Takeover Effect. Consummation of the Merger and the Block Purchase
will result in the acquisition by ART of an aggregate of 5,050,032 EQK Shares
(or approximately 49% of the EQK Shares to be outstanding after the Merger). As
a result of the foregoing and the effect of the Ownership Limit described herein
under "The Declaration Amendment Proposal -- Addition of Excess Share
Provisions," third party attempts to acquire control of EQK may not be
practicable. Accordingly, if the Merger is approved, it is unlikely that an
attempted take-over of EQK, which might result in an increase in the price at
which EQK Shares could be sold, will occur.
Leverage of EQK after the Merger. If the Center is sold, the net proceeds
distributed to EQK Shareholders, and if the Merger is consummated, EQK's only
real estate asset would be Oak Tree Village which would be subject to two
mortgages which, in the aggregate, would equal to its purchase price. EQK's high
degree of leverage may have significant consequences, including the following:
(i) the ability of EQK to obtain additional financing for acquisitions, working
capital, capital expenditures or other purposes, if necessary, may be impaired
or such financing may not be on terms favorable to the surviving entity; (ii) a
substantial portion of EQK's cash flow will be used to pay its interest expense,
which will reduce the funds that would otherwise be available to EQK for its
operations and future business opportunities; (iii) a substantial decrease in
operating cash flow or an increase in expenses of EQK could make it difficult
for EQK to meet its debt service requirements and force it to modify its
operations; (iv) EQK's high level of debt and resulting interest expense may
place it at a competitive disadvantage with respect to certain competitors with
lower amounts of indebtedness; and (v) EQK's high degree of leverage may make it
more vulnerable to downturn in its business or the economy generally.
Benefits to LLPM. LLPM has entered into an agreement (the "LLPM/ART Stock
Purchase Agreement") with ART to sell all of its 1,685,556 EQK Shares to ART for
50,566 ART Preferred Shares with an aggregate Liquidation Value of $505,660. The
Block Purchase with LLPM is conditioned upon the consummation of the Merger.
Conflicts of Interest Between LLPM and EQK. The management of EQK is
subject to conflicts of interest in recommending the Merger and approval of the
Merger-Related Proposals because most members of management of EQK also are
members of the management of LLPM, which is receiving the benefits described
above under "-- Benefits to LLPM."
Conflicts of Interest Between EQK and BCM. Management of BCM (including
Karl L. Blaha, Al Gonzalez, Thomas A. Holland, A. Cal Rossi, Jr. and Cooper B.
Stuart, who are expected to become the Trustees of EQK upon consummation of the
Merger) will be subject to conflicts of interest in carrying out its duties as
New Advisor to EQK because: (i) properties owned by the affiliates of BCM (the
"BCM Affiliates") may compete with the properties that EQK may acquire for
tenants; (ii) BCM Affiliates may compete with EQK in connection with the
acquisition of properties; (iii) BCM's personnel and other resources must be
allocated among EQK and other BCM Affiliates; (iv) decisions may have to be made
with respect to the extension, termination or modification of the New Advisory
Agreement with BCM; and (v) BCM will be subject to conflicts between its
obligations as New Advisor and its interests in and as an affiliate of and
advisor to ART in light of ART's intended purchase of additional EQK Shares
three years after the date of the consummation of the Merger. See "The Proposed
Merger and Related Matters -- ART's Purposes for the Merger."
-17-
<PAGE> 34
Pro Forma Net Losses and Accumulated Deficit for the Future Combined
Entity. The unaudited pro forma combined financial information of ART and EQK
for the periods ending December 31, 1997 and June 30, 1998 indicates that the
consummation of the Merger will likely result in net losses and accumulated
deficit for the combined entity. See "Selected Unaudited Pro Forma Combined
Financial Information of ART and EQK."
ART PREFERRED SHARES
Application for the Listing and Trading of ART Preferred Shares and
Possible Subsequent Delisting. As of August 25, 1998, there were 3,350,000 ART
Preferred Shares outstanding; however, there is currently no established public
market for the ART Preferred Shares. While the listing of the ART Preferred
Shares on the NYSE is a condition precedent to EQK's obligation to consummate
the Merger, there can be no assurance that an active market for the ART
Preferred Shares will develop or be sustained in the future on such exchange if
the listing is approved. Listing will also depend upon the satisfaction of the
NYSE's listing requirements with respect to the ART Preferred Shares. Although
the NYSE has not established any minimum numerical criteria for the listing of
preferred stock, it has published certain numerical delisting criteria therefor.
Pursuant to such criteria, the NYSE will consider suspending or delisting a
series of preferred stock if the aggregate market value of publicly-held shares
of such preferred stock is less than $2,000,000 and the number of publicly-held
shares of such preferred stock is less than 100,000. Upon consummation of the
Merger, the aggregate number and aggregate value of the ART Preferred Shares
will satisfy the NYSE listing requirements; however, since the ART Preferred
Shares are subject to conversion or redemption as described herein under
"Description of the Capital Stock of ART -- ART Preferred Shares," there can be
no assurance that the ART Preferred Shares will continue to satisfy the NYSE's
continued listing requirements. In addition, no assurance can be given as to the
liquidity of, or trading for, the ART Preferred Shares. The trading price of ART
Preferred Shares is likely to be below their Liquidation Value and there is no
assurance as to the price at which the ART Preferred Shares will actually trade.
Reliance on the ART Board to Declare Dividends on the ART Preferred Shares.
Although dividends will accrue cumulatively on the ART Preferred Shares from the
date of issuance, such dividends will not be paid unless and until they are
declared by the ART Board. Holders of ART Preferred Shares will not have the
authority to direct or compel the ART Board to declare dividends with respect to
the ART Preferred Shares. The ART Preferred Shares are non-voting except (i) as
provided by law, (ii) with respect to an amendment to ART's articles of
incorporation or bylaws that would materially alter or change the existing terms
of the ART Preferred Shares, and (iii) at any time or times when all or any
portion of the dividends on the ART Preferred Shares for any six quarterly
dividends, whether or not consecutive, shall be in arrears and unpaid. In the
latter event, the number of directors constituting the ART Board shall be
increased by two and the holders of ART Preferred Shares, voting separately as a
class, shall be entitled to elect two directors to fill such newly created
directorships with each holder being entitled to one vote in such election for
each share of ART Preferred Shares held.
Risks Associated with Conversion Feature. The ART Preferred Shares are
convertible into ART Common Shares as described herein under "Summary of Terms
- -- Description of ART Preferred Shares" and "Description of the Capital Stock of
ART -- ART Preferred Shares." The Articles of Amendment of ART's Articles of
Incorporation that authorize the ART Preferred Shares provide that a number of
authorized ART Common Shares sufficient to provide for the conversion of the
outstanding ART Preferred Shares as described herein shall at all times be
reserved for such conversion. However, the number of ART Common Shares into
which an ART Preferred Share is convertible is dependent upon the then-current
market price of the ART Common Shares. Therefore, if at the time a holder of ART
Preferred Shares seeks to convert such ART Preferred Shares, ART has failed to
reserve a sufficient number of authorized ART Common Shares to effect such
conversion and assuming that ART does not elect to redeem such ART Preferred
Shares as described herein, such holder would be unable to effect such
conversion. In addition to the ART Preferred Shares, ART has authorized and
issued other preferred stock that may be converted from time to time into ART
Common Shares. See "Description of the Capital Stock of ART." In the future, ART
expects to authorize and issue additional preferred stock or other securities
that may be converted from time to time into ART Common Shares. Certain of the
preferred stock that has been authorized by ART (including the ART Preferred
Shares) is, and securities that may be issued by ART in the future may be,
convertible into a number of ART Common Shares calculated by reference to the
price of ART Common Shares (i.e., the lower the price of the ART Common Shares,
the higher the number of ART Common Shares to be received upon conversion of the
applicable security). At any given time, a decrease in the price of ART Common
Shares below a certain level could result in the number of authorized ART Common
Shares being insufficient to provide for the conversion of all of ART's
convertible securities, including the
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<PAGE> 35
ART Preferred Shares. So long as management of ART and affiliates of ART own a
majority of the ART Common Shares, management expects that ART will have the
ability to increase the number of authorized ART Common Shares to a number
sufficient to provide for the conversion of its convertible preferred stock.
However, there can be no assurance that management and affiliates of ART will
continue to own a majority of the ART Common Shares. The actual basis for
calculating the number of ART Common Shares issuable upon conversion of ART's
authorized preferred stock is described under "Description of the Capital Stock
of ART."
Possibility that an Active Trading Market Will Not Exist for the ART Common
Shares When the ART Preferred Shares are Converted. In the event that ART
Preferred Shares are converted into ART Common Shares, there can be no assurance
as to the existence of an active trading market for the ART Common Shares at the
time of such conversion or that the trading price of the ART Common Shares will
not decline substantially after such conversion.
POTENTIAL ADVERSE CONSEQUENCES OF THE DECLARATION AMENDMENT PROPOSAL
Subject to the Requisite Shareholder Approval of the Declaration Amendment
Proposal, EQK's Declaration of Trust will be amended to provide for, among other
things, (i) the Ownership Limit; (ii) a 20 year extension of the finite life of
the trust, (iii) the ability to change investment, financing, borrowing and
distribution policies without shareholder approval, (iv) the removal of
prohibitions on certain activities and investments, and (v) the ability to issue
additional EQK Shares and other types of securities, in each case as more fully
described below. See "The Declaration Amendment Proposal."
Effect of Limits on Ownership and Issuance of Additional EQK Shares or
other Securities. In order to maintain EQK's qualification as a REIT under the
Code, subject to Requisite Shareholder Approval of the Merger-Related Proposals,
the Declaration of Trust will be amended to prohibit ownership of more than 4.9%
of the outstanding EQK Shares by any single shareholder other than ART and the
current 5% Holders. Under the Amended Declaration of Trust, the EQK Board may
exempt a proposed transferee from this restriction upon receipt of a ruling from
the Internal Revenue Service, an opinion of counsel or other evidence
satisfactory to the EQK Board that ownership of EQK shares by a proposed
transferee will not adversely affect EQK's qualification as a REIT under the
Code, and upon such other conditions as the EQK Board may direct.
The Ownership Limit, as well as the ability of EQK to issue additional EQK
Shares or other securities (which may have rights and preferences senior to the
EQK Shares), may discourage a change of control of EQK and may also (i) deter
future tender or exchange offers for the EQK Shares, which offers may be
advantageous to EQK Shareholders, and (ii) limit the opportunity for EQK
Shareholders to receive a premium for their EQK Shares that might otherwise
exist if an investor were attempting to assemble a block of EQK Shares in excess
of the Ownership Limit or otherwise effect a change of control of EQK.
Extension of Finite Life of EQK. The self liquidating provisions included
in EQK's Declaration of Trust reflected an intention of the original EQK Board
to liquidate EQK's assets by March of 1999, and the Declaration of Trust
provides that no additional investments will be made beyond such date. The EQK
Board however, has the discretion to hold current investments for up to two
years beyond such date should market conditions or other circumstances so
dictate, if such action is in the best interests of the EQK Shareholders. At
some time on or before the date on which EQK would be required to terminate its
operations, EQK's investments would be liquidated and the proceeds thereof, net
of taxes, selling expenses and disposition fees, would be distributed to the EQK
Shareholders.
Subject to Requisite Shareholder Approval, EQK's Declaration of Trust will
be amended to extend the duration of EQK for an additional 20 year period and to
revise the liquidation provisions to which EQK is subject. Following such
amendment, if any asset of EQK is sold, the net proceeds thereof, if any, are
expected to be reinvested in additional assets rather than being distributed to
the EQK Shareholders. As a result of the extension of the finite life of EQK,
the EQK Shareholders will have to sell their EQK Shares in the market to realize
any remaining value of their investment after the distribution to be made to EQK
Shareholders after the sale of the Center. In addition, the extension of EQK's
duration will likely increase the amount of fees paid to BCM, which is expected
to succeed LLPM as EQK's Advisor.
Changes in EQK's Policies without Shareholder Approval. EQK's Declaration
of Trust currently provides that, in general, none of EQK's policies may be
amended without the approval of holders of three-quarters of the outstanding EQK
Shares. Subject to Requisite Shareholder Approval of the Merger-Related
Proposals, EQK's Declaration of Trust
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<PAGE> 36
will be amended to provide that the EQK Board, which will be composed of the ART
Designated Trustees (as defined herein under "The Board Election Proposal"), may
change EQK's investment policies from time to time without the approval of EQK's
Shareholders. Accordingly, EQK Shareholders will be relying upon the discretion
of ART's affiliate and advisor, BCM, as EQK's New Advisor, and the EQK Board in
making changes to any existing investment policies and selecting any additional
investments. Any such change in existing investment policies may affect EQK's
financing, borrowing and distribution policies and may adversely affect EQK's
financial condition, results of operations and the market price of the EQK
Shares without the approval of the EQK Shareholders. The potential conflicts of
interest in the relationship between ART and BCM are described herein under "--
Possible Detrimental Effects of the Merger -- Conflicts of Interest between EQK
and BCM."
Removal of Prohibitions and Restrictions from Certain Activities and
Investments. The Declaration of Trust currently provides that EQK may acquire
additional real properties, but only under very limited circumstances. The
Amended Declaration of Trust will remove all restrictions on EQK's ability to
acquire additional real or personal property and other debt and equity
investments, although except for the acquisition of the Oak Tree Village from
ART, it is not currently intended that EQK will make any further acquisitions or
additional investments in the foreseeable future. Accordingly, EQK Shareholders
will be relying upon the discretion of ART's affiliate and advisor, BCM, as
EQK's New Advisor, and the EQK Board in making changes to any existing
investment policies and selecting any additional investments. The removal of
such restrictions could adversely affect EQK's financial condition, results of
operations and the market price of the EQK Shares without the approval of the
EQK shareholders. See "The Business of EQK -- Summary of the Existing
Declaration of Trust -- Prohibited Activities and Investments."
Possible Issuance of Additional EQK Shares or Other Securities. Subject to
Requisite Shareholder Approval, EQK's Declaration of Trust will be amended to
remove prohibitions relating to the issuance of additional EQK Shares or other
types of securities, including securities with preferential rights senior to the
EQK Shares. Any such issuance of additional EQK Shares would require the
affirmative vote of the holders of not less than a majority of the then
outstanding EQK Shares. Any such issuance of other types of securities would not
require the approval of the EQK Shareholders. In the event that additional EQK
Shares or other equity securities are so issued by EQK, holders of outstanding
EQK Shares will incur dilution in their percentage of equity in EQK.
POTENTIAL ADVERSE CONSEQUENCES ASSOCIATED WITH AFFILIATE OF CONTROLLING
SHAREHOLDER OF NEW ADVISOR
Upon consummation of the Merger, LLPM and EQK will terminate the Advisory
Agreement and EQK will enter into the New Advisory Agreement with BCM, an
affiliate of and advisor to ART, pursuant to which BCM will become the New
Advisor. BCM is a privately held Nevada corporation owned by a trust established
for the benefit of the children of Gene E. Phillips. Mr. Phillips currently
serves as a representative of such trust and, in such capacity, has substantial
contact with the management of BCM and input with respect to BCM's performance
of advisory services. Mr. Phillips is the former chairman of Southmark
Corporation ("Southmark"), a real estate syndicator and parent of San Jacinto
Savings Association ("San Jacinto"). Mr. Phillips resigned his positions with
Southmark and certain of its affiliates in January 1989. Southmark filed a
voluntary petition of bankruptcy under Chapter 11 of the United States
Bankruptcy Code in July 1989. In November 1990, San Jacinto was placed under
conservatorship of the Resolution Trust Corporation ("RTC") by federal banking
authorities. Mr. Phillips was named as a defendant in a number of lawsuits
brought by the RTC and private plaintiffs in which the allegations made against
Mr. Phillips included breach of fiduciary duty and other misconduct, which
allegations were denied by Mr. Phillips. All of these actions have been
dismissed or settled. See "Description of ART" and "The Business of ART --
Investments in Real Estate Investment Trusts and Real Estate Partnership."
CORRELATION BETWEEN THE VALUE OF THE ART PREFERRED SHARES AND THE SUCCESS OF
ART'S BUSINESS
As part of the Merger Consideration and pursuant to the Merger, EQK
Shareholders will receive ART Preferred Shares (and subsequently may receive ART
Common Shares upon conversion of the ART Preferred Shares) as described herein,
the value of which will be substantially dependent upon the success of ART's
business. Set forth below is a summary of potential risks relating to ART's
business.
Recent Operating History. ART has experienced net losses of $2,428,000,
$5,554,000, $2,836,000, $2,426,000, and $4,427,000, respectively, for each of
the fiscal years ended December 31, 1997, 1996, 1995, 1994 and 1993, and ART had
an accumulated deficit at December 31, 1997 of $25,638,000. During the six
months ended June 30, 1998,
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ART had net income of $5,669,000 and an accumulated deficit of $21,137,000 at
June 30, 1998. During the six months ended June 30, 1998, ART paid a cumulative
dividend of $0.10 with respect to each ART Common Share. During 1997, ART paid a
cumulative dividend of $0.20 with respect to each ART Common Share, and during
1996, ART paid a cumulative dividend of $0.15 with respect to each ART Common
Share. From 1993 through 1995, ART paid no dividends in respect of the ART
Common Shares. There can be no assurance that ART will be able to pay dividends
in respect of the ART Preferred Shares or the ART Common Shares in the future.
Changes in ART's Policies Without Stockholder Approval. The investment,
financing, borrowing and distribution policies of ART and its policies with
respect to all other activities, growth, debt, capitalization and operations,
will be determined by the ART Board. Although it has no present intention to do
so, the ART Board may amend or revise these policies at any time and from time
to time at its discretion without a vote of the stockholders of ART. A change in
these policies could adversely affect the market price of the ART Preferred
Shares or the ART Common Shares. See "The Business of ART -- General."
Investments in Real Property. Real property investments are subject to
varying degrees of risk and are relatively illiquid. Income from real property
investments and ART's resulting ability to pay dividends to its shareholders may
be adversely affected by a number of factors, including general economic climate
and local real estate conditions (such as oversupply of or reduced demand for
space and changes in market rental rates); the perceptions of prospective
tenants of the safety, convenience and attractiveness of ART's properties; the
ability of ART or the owner of such properties to provide adequate management,
maintenance and insurance; energy and supply shortages; the ability to collect
on a timely basis all rent from tenants and interest from borrowers; the expense
of periodically renovating, repairing and reletting spaces; and increasing
operating costs (including real estate taxes and utilities) which may not be
passed through to tenants. Certain significant expenditures associated with
investments in real estate (such as mortgage payments, real estate taxes,
insurance and maintenance costs) are generally not reduced when circumstances
cause a reduction in rental revenues from the investment. If a property of ART
is mortgaged to secure the payment of indebtedness and if ART or an entity in
which ART invests or to which it lends is unable to meet its mortgage payments,
a loss could be sustained as a result of foreclosure on the property or the
exercise of other remedies by the mortgagee. Real estate values and income from
properties are also affected by such factors as compliance with laws, including
tax laws, interest rate levels and the availability of financing.
Nature of Investments Made by ART May Involve High Risk; Illiquidity of
Real Estate Investments. ART may make investments in real estate-related assets
and businesses which have experienced severe financial difficulties, which
difficulties may never be overcome. Since such investments may involve a high
degree of risk, poor performance by any such investments could severely affect
the financial condition and results of operations of ART.
The illiquid nature of ART's real estate investments may limit the ability
of ART to modify its portfolio in response to changes in economic or other
conditions. Such illiquidity may result from the absence of an established
market for ART's investments as well as legal or contractual restrictions on
their resale by ART.
Difficulty of Locating Suitable Investments; Competition. Identifying,
completing and realizing on real estate investments has from time to time been
highly competitive, and involves a high degree of uncertainty. ART competes for
investments with many public and private real estate investment vehicles,
including financial institutions (such as mortgage banks, pension funds and real
estate investment trusts) and other institutional investors, as well as
individuals. There can be no assurance that ART will continue to be able to
locate and complete investments which satisfy ART's objectives or realize upon
their value or that it will be able to fully invest its available capital.
Many of those with whom ART competes for investments and its services are
far larger than ART, may have greater financial resources than ART and may have
management personnel with more experience than the officers of ART.
General Investment Risks Associated With Acquisition Activities. From time
to time, ART will acquire existing properties to the extent that they can be
acquired on advantageous terms and meet ART's investment criteria. Acquisitions
of properties entail general investment risks associated with any real estate
investment, including the risk that investments will fail to perform as
expected, that estimates of the cost of improvements to bring an acquired
property up to standards established for the intended market position may prove
inaccurate and the occupancy rates and rents achieved may be less than
anticipated.
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Dependence on Rental Income from Real Property. ART's cash flow, results of
operations and value of its assets would be adversely affected if a significant
number of tenants of ART's properties failed to meet their lease obligations or
if ART or the owner of a property in which ART has an interest were unable to
lease a significant amount of space on economically favorable terms. In the
event of a default by a lessee, the owner may experience delays in enforcing its
rights as lessor and may incur substantial costs in protecting its investment.
The bankruptcy or insolvency of a major tenant may have an adverse effect on a
property. At any time, a tenant may also seek protection under the bankruptcy
laws, which could result in rejection and termination of such tenant's lease and
thereby cause a reduction in the cash flow of the property. If a tenant rejects
its lease, the owner's claim for breach of the lease would (absent collateral
securing the claim) be treated as a general unsecured claim. Generally, the
amount of the claim would be capped at the amount owed for unpaid pre-petition
lease payments unrelated to the rejection, plus the greater of one year's lease
payments or 15% of the remaining lease payments payable under the lease (but not
to exceed the amount of three years' lease payments). No assurance can be given
that the properties in which ART has an interest will not experience significant
tenant defaults in the future.
Properties that Serve as Collateral for ART's Mortgage Notes Receivable. A
substantial portion of ART's assets have been invested in mortgage notes
receivable, principally those secured by income producing real estate. The
income producing real estate properties have included apartment complexes,
hotels, office buildings and shopping centers. Those properties are located in
the Mountain, Southeast and Southwest regions of the United States. Certain
geographic regions of the United States from time to time will experience weaker
regional economic conditions and housing markets, and, consequently, will
experience higher rates of loss and delinquency on mortgage loans generally. Any
concentration of loan assets in such a region may present risk considerations in
addition to those generally present for similar mortgage-backed or asset-backed
securities without such concentration. See "The Business of ART -- Geographic
Regions" for a description of the geographic regions.
Market values of apartment complexes can be affected significantly by the
supply and demand in the geographic market for such properties securing the loan
and, therefore, may be subject to adverse economic conditions. Market values on
apartment complexes may vary as a result of economic events or governmental
regulations outside the control of the borrower or lender. Governmental
regulations such as rent control laws may impact the future cash flow of the
apartment complex.
Like any income producing property, the income generated by a hotel
property is subject to several factors such as local, regional and national
economic conditions and competition. However, because such income is primarily
generated by room occupancy and such occupancy is usually for short periods of
time, the level of such income may respond more quickly to conditions such as
those described above. Such sensitivity to competition may require more frequent
improvements and renovations than other properties. To the extent a hotel is
affiliated to, or associated with, a regional, national, or international chain,
changes in the public perception of such chain may have an impact on the income
generated by the related property. The hotel industry is also generally
seasonal. This will result in fluctuation in the income generated by hotel
properties.
The market value of properties such as office buildings and shopping
centers are subject to risks that, upon expiration, leases for space in the
office buildings and shopping centers may not be renewed, the space may not be
released, or the terms of renewal or re-lease (including the cost of required
renovations or concessions to tenants) may be less favorable than current lease
terms.
Operating Risks of ART's Properties. The properties in which ART has an
interest are subject to operating risks common to the particular property type,
any and all of which may adversely affect occupancy or rental rates. Such
properties are subject to increases in operating expenses such as cleaning;
electricity; heating, ventilation and air-conditioning; elevator repair and
maintenance; insurance and administrative costs; and other general costs
associated with security, landscaping, repairs and maintenance. While commercial
tenants are often obligated to pay a portion of these escalating costs, there
can be no assurance that they will agree to pay such costs or that the portion
that they agree to pay will fully cover such costs. If operating expenses
increase, the local rental market may limit the extent to which rents may be
increased to meet increased expenses without decreasing occupancy rates. To the
extent rents cannot be increased or costs controlled, the cash flow of ART and
its financial condition may be adversely affected.
Possible Inability to Meet Payments on Debt Financing. ART's debt-to-equity
ratio, inclusive of margin debt, was 4.97 to 1 as of December 31, 1997, and 5.84
to 1 as of June 30, 1998. Under certain circumstances, ART's cash flow
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may be insufficient to meet required payments of principal, interest on its debt
and dividend distributions. If a property is mortgaged to secure payment of
indebtedness and ART is unable to meet mortgage payments, the lender could
foreclose upon the property, appoint a receiver and receive an assignment of
rents and leases or pursue other remedies, all with a consequent loss of income
and asset value to ART. If ART defaults on secured indebtedness, the lender may
foreclose and ART could lose its entire investment in the security for such
loan. Because ART may engage in portfolio financings where several investments
are cross-collateralized, multiple investments may be subject to the risk of
loss. As a result, ART could lose its interests in performing investments in the
event such investments are cross-collateralized with poorly performing or
nonperforming investments. In addition, recourse debt may subject other assets
of ART to risk of loss. Any such losses would adversely affect ART's ability to
make distributions in respect of the ART Preferred Shares. Distributions in
respect of the ART Preferred Shares will be subordinate in right of payment to
ART's debt obligations which, as of June 30, 1998, have an aggregate outstanding
principal balance of approximately $398.9 million. Substantially all of ART's
mortgage notes receivable, real estate, equity security holdings in CMET, IORI,
TCI and NRLP and its trading portfolio of equity securities has been pledged to
secure ART's outstanding indebtedness. Such borrowings increase ART's risk of
loss because they represent a prior claim on ART's assets and require fixed
payments regardless of profitability. If ART defaults on such secured
indebtedness, the lender may foreclose on ART's assets securing such
indebtedness, and ART could lose its investment in the pledged assets.
Possible Inability to Refinance Existing Indebtedness. ART may not be able
to refinance existing indebtedness or the terms of such refinancing may not be
as favorable as the terms of current indebtedness and ART may not be able to
finance necessary capital expenditures for renovations and other improvements on
favorable terms or at all. If ART were unable to refinance its indebtedness on
acceptable terms, or at all, ART might be forced to dispose of one or more of
its properties on disadvantageous terms, which might result in losses to ART and
might adversely affect the cash available for distributions to its shareholders.
If interest rates or other factors at the time of the refinancing result in
higher interest rates upon refinancing, ART's interest expense would increase,
which would affect ART's ability to make distributions to its shareholders.
Substantially all of ART's real estate equity investments utilize a leveraged
capital structure, in which case a third party lender would be entitled to cash
flow generated by such investments prior to ART receiving a return. As a result
of such leverage, in addition to the risks described above, ART would be subject
to the risk that existing debt (which in most cases will not have been fully
amortized at maturity) will not be able to be refinanced or that the terms of
such refinancings will not be as favorable to ART and the risk that necessary
capital expenditures for such purposes as renovations and other improvements
will not be able to be financed on favorable terms or at all. While such
leverage may increase returns or the funds available for investment by ART, it
also will increase the risk of loss on a leveraged investment. The
organizational documents of ART do not contain any limitation on the amount of
indebtedness ART may incur. Accordingly, ART could become even more highly
leveraged than it currently is, thus resulting in an increase in debt service
that could increase the risk of default on ART's indebtedness.
Existing Debt Maturities. As of December 31, 1997, approximately $89.0
million of ART's outstanding indebtedness became due within the next twelve
months. ART had the option of extending the maturity dates with respect to $18.3
million of such amount to April and June 1999. In April 1998, ART paid off $5.0
million of such debt and refinanced the remaining $13.3 million with the same
lender, increasing the loan's principal balance by $1.7 million, and extended
the maturity date of such loan to April 2000. The lender on an additional $19.5
million has extended the related loan's maturity date to February 2000. In March
1998, ART made a $10.2 million paydown on this loan. In addition, through June
30, 1998, ART paid off a total of $20.4 million of the remainder of such
maturing debt. ART anticipates that only a portion of the principal of its
indebtedness outstanding from time to time will be repaid prior to maturity. ART
may not have sufficient funds to repay such indebtedness at maturity; it may
therefore be necessary for ART to refinance debt through additional debt
financing or equity offerings. If ART is unable to refinance this indebtedness
on acceptable terms, ART may be forced to dispose of properties upon
disadvantageous terms, which could result in losses to ART and adversely affect
the amount of cash available for further investment, to make payments on its
outstanding indebtedness or to make distributions in respect of the ART
Preferred Shares.
Rising Interest Rates on Variable Rate Debt. As of June 30, 1998,
approximately 21% and 79% of ART's indebtedness is subject to variable interest
rates and fixed interest rates, respectively. ART may incur indebtedness in the
future that also bears interest at a variable rate or may be required to
refinance its debt at higher rates. Accordingly, increases in variable interest
rates could increase ART's interest expense and adversely effect the financial
condition and results of operations of ART. In the event that ART's financial
condition and results of operations are adversely affected, the value of the ART
Preferred Shares will likely decline.
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Covenants. Various debt obligations may require ART to comply with a number
of customary financial and other covenants on an ongoing basis. Failure to
comply with such covenants may limit ART's ability to borrow funds or may cause
a default under its then-existing indebtedness. Various ART debt obligations
contain specific covenants, which provide that if ART should be declared in
default of any of its debt obligations, and such default is not cured in the
time allowed, then the debt obligations containing such covenant would also be
declared in default, as a result of which, among other consequences, all such
debt would become due and payable.
Lack of Control and Other Risks of Equity Investments in and with Third
Parties. ART may invest in shares or other equity interests of real estate
investment trusts or other entities that invest in real estate assets. In such
cases, ART will be relying on the assets, investments and management of the real
estate investment trust or other entity in which it is investing. Such entities
and their properties will be subject to the other risks affecting the ownership
and operation of real estate set forth herein.
ART may also co-invest with third parties through partnerships, joint
ventures or other entities, acquiring non-controlling interests in or sharing
responsibility for managing the affairs of a property, partnership, joint
venture or other entity and, therefore, will not be in a position to exercise
sole decision-making authority regarding the property, partnership, joint
venture or other entity.
Investments in partnerships, joint ventures, or other entities may, under
certain circumstances, involve risks which would not be present were a third
party not involved, including the possibility that ART's partners or
co-venturers might become bankrupt or otherwise fail to fund their share of
required capital contributions, that such partners or co-venturers might at any
time have economic or other business interests or goals which are inconsistent
with the business interests or goals of ART, and that such partners or
co-venturers may be in a position to take action contrary to the instructions or
the requests of ART and contrary to ART's policies or objectives. Such
investments may also have the potential risk of impasse on decisions, such as a
sale, because neither ART nor the partner or co-venturer would have full control
over the partnership or joint venture. Consequently, actions by such partner or
co-venturer might result in subjecting properties owned by the partnership or
joint venture to additional risk. In addition, ART may in certain circumstances
be liable for the actions of its third-party partners or co-venturers.
Investments in Non-Recourse Mortgage Loans. To the extent ART invests in
mortgage loans, such mortgage loans may or may not be recourse obligations of
the borrower and generally will not be insured or guaranteed by governmental
agencies or otherwise. In the event of a default under such obligations, ART may
have to foreclose its mortgage or protect its investment by acquiring title to a
property and thereafter making substantial improvements or repairs in order to
maximize the property's investment potential. Borrowers may contest enforcement
of foreclosure or other remedies, seek bankruptcy protection against such
enforcement and/or bring claims for lender liability in response to actions to
enforce mortgage obligations. Relatively high "loan-to-value" ratios and
declines in the value of the mortgaged property may prevent ART from realizing
an amount equal to its mortgage loan upon foreclosure.
ART may participate in loans originated by other financing institutions. As
a participant, ART may not have the sole authority to declare a default under
the mortgage or to control the management or disposition of the related property
or any foreclosure proceedings in respect thereof.
Any investments in junior mortgage loans which are subordinate to liens of
senior mortgages would involve additional risks, including the lack of control
over the collateral and any related foreclosure proceeding. In the event of a
default on a senior mortgage, ART may make payments to prevent foreclosure on
the senior mortgage without necessarily improving ART's position with respect to
the subject real property. In such event, ART would be entitled to share in the
proceeds only after satisfaction of the amounts due to the holder of the senior
mortgage.
Limitations on Remedies. Although ART will have certain contractual
remedies upon the default by borrowers under certain debt instruments, such as
foreclosing on the underlying real estate or collecting rents generated
therefrom, certain legal requirements (including the risks of lender liability)
may limit the ability of ART to effectively exercise such remedies.
The right of a mortgage lender to convert its loan position into an equity
interest may be limited or prevented by certain common law or statutory
prohibitions.
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Possibility of Uninsured Loss on Uninsurable or Economically Uninsurable
Properties. ART carries comprehensive liability, fire, extended coverage and
rental loss insurance with respect to all of the improved real property that it
owns, with policy specifications, insured limits and deductibles customarily
carried for similar properties. There are, however, certain types of losses
(such as losses arising from acts of war or relating to pollution) that are not
generally insured because they are either uninsurable or not economically
insurable. Should an uninsured loss or a loss in excess of insured limits occur,
ART could lose its capital invested in a property, as well as the anticipated
future revenue from such property and would continue to be obligated on any
mortgage indebtedness or other obligations related to the property. Any such
loss could adversely affect the financial condition and results of operations of
ART.
With respect to those properties in which ART holds an interest through a
mortgage, as well as those properties owned by entities to whom ART makes
unsecured loans, the borrowers will most likely be obligated to maintain
insurance on such properties and to arrange for ART to be covered as a named
insured on such policies. The face amount and scope of such insurance coverage
may be less comprehensive than ART would carry if it held the fee interest in
such property. Accordingly, in such circumstances, or in the event that the
borrowers fail to maintain required coverage, uninsured or underinsured losses
may occur, which could have an adverse impact on ART's cash flow or financial
condition.
Costs of Compliance with the Americans with Disabilities Act and Similar
Laws. Under the Americans with Disabilities Act of 1980 (the "ADA"), places of
public accommodations and commercial facilities are required to meet certain
federal requirements related to access and use by disabled persons. Compliance
with ADA requirements could require both structural and non-structural changes
to the properties in which ART invests and noncompliance could result in
imposition of fines by the United States government or an award of damages to
private litigants. Although management of ART believes that its properties are
substantially in compliance with present requirements of the ADA, ART may incur
additional costs of compliance in the future. A number of additional Federal,
state and local laws exist which impose further burdens or restrictions on
owners with respect to access by disabled persons and may require modifications
to properties in which ART invests, or restrict certain further renovations
thereof. The ultimate amount of the cost of compliance with the ADA or other
such laws is not currently ascertainable. While such costs are not expected to
have a material effect on ART, they could be substantial. If required changes
involve greater expense than ART currently anticipates, ART's financial
condition and results of operations could be adversely affected.
Potential Environmental Liability Affecting ART. Under various Federal,
state and local environmental laws, ordinances and regulations, an owner of real
estate may be liable for the costs of removal or remediation of certain
hazardous or toxic substances on such property. These laws often impose
environmental liability without regard to whether the owner knew of, or was
responsible for, the presence of such hazardous or toxic substances. The
presence of such substances, or the failure properly to remediate such
substances, may adversely affect the owner's ability to sell or rent the
property or to borrow using the property as collateral. Persons who arrange for
the disposal or treatment of hazardous or toxic substances may also be liable
for the costs of removal or remediation of such substances at a disposal or
treatment facility, whether or not such facility is owned or operated by such
person. Certain laws impose liability for release of asbestos- containing
materials ("ACMs") into the air and third parties may seek recovery from owners
or operators of real properties for personal injury associated with ACMs. In
connection with the ownership (directly or indirectly through its lending
activities), operation, management and development of real properties, ART may
be considered an owner or operator of such properties or as having arranged for
the disposal or treatment of hazardous or toxic substances and, therefore,
potentially liable for removal or remediation costs, as well as for certain
other related costs, including governmental fines and injuries to persons and
property.
ART's management is not aware of any environmental matters affecting its
properties or investments that would have a material adverse effect on ART's
business, assets or results of operations.
No assurance can be given that existing environmental assessments with
respect to any of ART's properties reveal all environmental liabilities, that
any prior owner of a property did not create any material environmental
condition not known to ART, or that a material environmental condition does not
otherwise exist with respect to any one or more properties of ART.
Noncompliance with Other Laws. Real estate properties are also subject to
various Federal, state and local regulatory requirements, such as state and
local fire and life safety requirements. Failure to comply with these
requirements could result in the imposition of fines by governmental authorities
or awards of damages to private
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litigants. ART believes that its properties are currently in material compliance
with all such regulatory requirements. However, there can be no assurance that
these requirements will not be changed or that new requirements will not be
imposed which would require significant unanticipated expenditures by ART and
could have an adverse effect on ART's results of operations.
Changes in Laws. Increases in real estate taxes, income taxes and service
or other taxes generally are not passed through to tenants under existing leases
and may adversely affect ART's cash flow from operations and its ability to make
distributions to shareholders. Similarly, changes in laws increasing the
potential liability for environmental conditions existing on properties or
increasing the restrictions on discharges or other conditions may result in
significant unanticipated expenditures, which would adversely affect ART's funds
from operations and thus its ability to make payments on its outstanding
indebtedness and to make distributions to its shareholders.
Dependence on Key Personnel. ART will be dependent on the efforts of its
executive officers and the executive officers of BCM, an affiliate of and
advisor to ART. While ART believes that it and BCM could find replacements for
these key personnel, the loss of their services may have a temporary adverse
effect on the operations of ART. Only Randall M. Paulson, the President of BCM,
has an employment agreement with BCM. None of the other officers has entered or
is expected to enter into employment agreements with ART or BCM.
CORRELATION BETWEEN THE VALUE OF THE EQK SHARES AND THE SUCCESS OF EQK'S
BUSINESS
EQK Shareholders are subject to many of the risks described above under
"--Risks Relating to ART's Business," as they may also pertain to the business
of EQK. The value of the EQK Shares may be affected by such risks and the risks
set forth below. In addition, as a result of the sale of the Center, the
resulting distribution to EQK Shareholders and the acquisition of Oak Tree
Village for a note in the full amount of the purchase price, EQK is not expected
to have any net worth after the Merger.
Possible Loss of NOLs. EQK currently has NOLs of approximately $94,000,000
prior to the anticipated utilization of a portion of these NOL's to offset the
taxable gain realized upon the sale of Harrisburg East Mall. In general, such
NOLs may be used to offset any taxable gains realized upon the sale of EQK's
assets so long as there is not or more than a 50 percentage point change in the
ownership of the EQK Shares during any three year period. In the event that
there is more than a 50 percentage point change in the ownership of EQK Shares
during a three year period, the availability of such NOLs to offset taxable
gains or income would be reduced to a very significant extent. Although it is
not expected that the Merger, the Block Purchase or the Standstill Agreements
would reduce the availability of the NOLs, a reduction in the availability of
such NOLs could have a material adverse effect on the market value of EQK and
the EQK Shares.
Consequences of Failure of EQK to Qualify as a REIT. EQK 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 Code. Under the Code, a real
estate investment trust that meets the applicable requirements is not subject to
Federal income tax on that portion of its taxable income that is distributed to
its shareholders. Upon consummation of the Merger, EQK intends to continue to
operate in a manner so as to qualify as a REIT under the Code. However, no
assurance can be given that EQK will be able to continue to operate in a manner
to so qualify. Qualification as a REIT involves the satisfaction of numerous
requirements (some on an annual and quarterly basis) established under highly
technical and complex Code provisions for which there are only limited judicial
or administrative interpretations, and involves the determination of various
factual matters and circumstances not entirely within EQK's control.
If EQK were to fail to qualify as a REIT in any taxable year, EQK would be
subject to Federal income tax (including any applicable alternative minimum tax)
on its taxable income at corporate rates. Moreover, unless entitled to relief
under certain statutory provisions, EQK also would be disqualified from
treatment as a REIT for the four taxable years following the year during which
qualification is lost. This treatment would reduce the net earnings of EQK
available for investment or distribution to shareholders because of the
additional tax liability to EQK for the years involved. In addition,
distributions to EQK Shareholders would no longer be required to be made.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table summarizes the ratio of ART's earnings to combined
fixed charges and preferred stock dividends for each of the five fiscal years
ended December 31, 1997:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED * * * * *
STOCK DIVIDENDS
</TABLE>
* Earnings were inadequate to cover fixed charges and preferred stock dividends
by $8,474,000, $4,819,000, $189,000, $1,390,000, and $4,923,000 in 1997, 1996,
1995, 1994 and 1993, respectively.
USE OF PROCEEDS
Neither ART nor EQK will receive any cash proceeds from the Merger. ART
plans to hold the EQK Shares that it receives as the ART Merger Consideration
for investment purposes. See "The Proposed Merger and Related Matters --
Purposes of the Merger".
THE EQK ANNUAL MEETING
INTRODUCTION
This Prospectus/Proxy Statement is being furnished in connection with the
solicitation of proxies by the EQK Board for use in connection with the EQK
Annual Meeting and any adjournments or postponements of such meeting.
It is anticipated that the mailing of this Prospectus/Proxy Statement to
EQK Shareholders will commence on _________ __, 1998.
DATE, TIME AND PLACE OF MEETINGS
The EQK Annual Meeting is scheduled to be held at the corporate offices of
EQK, 5775 Peachtree Dunwoody Road, Suite 200D, Atlanta, Georgia on ________ __,
1998 at 9:00 a.m. Eastern Standard Time.
MATTERS TO BE CONSIDERED AT THE EQK ANNUAL MEETING
At the EQK Annual Meeting, the EQK Shareholders, voting together as a
single class, will be asked to consider and vote upon the Proposals. The Board
Election Proposal will require the affirmative vote of EQK Shareholders
representing a majority of the total votes authorized to be cast by EQK Shares
then outstanding which are present at the EQK Annual Meeting in person or by
proxy and entitled to vote thereon. The Merger-Related Proposals will each
require the Requisite Shareholder Approval. None of the Merger-Related Proposals
will take effect unless all such proposals receive the Requisite Shareholder
Approval.
RECORD DATE AND VOTE REQUIRED
The EQK Board has fixed the close of business on ________ __, 1998 as the
EQK Record Date for the EQK Annual Meeting. As of such date, there were
_________________ EQK Shares issued and outstanding.
The presence, in person or by proxy, of EQK Shareholders owning EQK Shares
representing a majority of all the votes entitled to be cast by EQK Shareholders
at the EQK Annual Meeting is necessary to constitute a quorum at such meeting.
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The Board Election Proposal will require the affirmative vote of EQK
Shareholders representing a majority of the total votes authorized to be cast by
EQK Shares then outstanding which are present at the EQK Annual Meeting in
person or by proxy and entitled to vote thereon. The Merger-Related Proposals
will each require the Requisite Shareholder Approval. None of the Merger-Related
Proposals will take effect unless all such proposals receive the Requisite
Shareholder Approval. LLPM, Summit and Sutter have agreed to vote their EQK
Shares in favor of the Merger-Related Proposals. LLPM, Summit, Sutter and
Halperin currently own 17.50%, 9.52%, 9.55% and 8.9%, respectively, of the
issued and outstanding EQK Shares. The number of affirmative votes required for
approval of the Proposals at the EQK Annual Meeting is also described above
under "--Matters to be Considered at the EQK Annual Meeting."
As of June 30, 1998, Trustees and executive officers of EQK as a group
beneficially held outstanding EQK Shares representing less than 1% of all the
votes entitled to be cast by EQK Shareholders at the EQK Annual Meeting and each
such person has advised ART that he or she intends to vote to approve and adopt
the Proposals.
A proxy may indicate that all or a portion of the shares represented by
such proxy are not being voted with respect to a specific proposal. This could
occur, for example, when a broker is not permitted to vote shares held in street
name on certain proposals in the absence of instructions from the beneficial
owner. Such broker non-votes and abstentions will be considered as not present
and entitled to vote on such proposal, even though such shares will be
considered present for purposes of determining a quorum and voting on other
proposals. BECAUSE APPROVAL OF THE MERGER-RELATED PROPOSALS AT THE EQK ANNUAL
MEETING REQUIRES THE AFFIRMATIVE VOTE OF THREE QUARTERS OF THE OUTSTANDING EQK
SHARES AS DESCRIBED MORE FULLY ABOVE IN "--MATTERS TO BE CONSIDERED AT THE EQK
ANNUAL MEETING," ANY BROKER NON-VOTES OR ABSTENTIONS ON THE PROPOSALS WILL HAVE
THE SAME EFFECT AS A VOTE "AGAINST" THE MERGER-RELATED PROPOSALS AND ACCORDINGLY
WILL AFFECT WHETHER THE MERGER-RELATED PROPOSALS WILL BE APPROVED.
PROXY
Enclosed is a form of proxy which should be completed, dated, signed and
returned by each EQK Shareholder before the EQK Annual Meeting to ensure that
such stockholder's shares will be voted at such meeting. Any EQK Shareholder
signing and delivering a proxy has the power to revoke the proxy at any time
prior to its use by filing with the corporate secretary of EQK a written
revocation of the proxy or a duly executed proxy bearing a later date or by
attending and voting in person at the meetings.
Shares represented by a properly executed proxy will be voted in accordance
with the instructions indicated on such proxy with respect to the proposal at
the EQK Annual Meeting, and at the discretion of the proxy holders on all other
matters to come properly before such meeting. If an EQK Shareholder executes a
proxy with no instructions indicated thereon, shares represented by such proxy
will be voted in favor of the Proposals.
SOLICITATION OF PROXIES
ART will bear the expense of the proxy solicitation. ART has retained
Shareholder Communications Corporation (the "Proxy Solicitor") to act as proxy
solicitor in connection with the Merger. The Proxy Solicitor may contact EQK
Shareholders by mail, telephone, telex, telegraph and personal interviews and
may request brokers, dealers and other nominee stockholders to forward the proxy
materials to beneficial owners of EQK Shares. The Proxy Solicitor will receive a
fee estimated not to exceed $9,500 for such services, plus reimbursement of
out-of-pocket expenses, and ART will indemnify the Proxy Solicitor against
certain liabilities and expenses in connection with the Merger, including
liabilities under federal securities laws. The telephone number of the Proxy
Solicitor is 1-800-221-5724.
OTHER MATTERS
The EQK Board of Trustees knows of no matters, other than those described
in this Prospectus/Proxy Statement, which are to be brought before the EQK
Annual Meeting. However, if any other matters properly come before such meeting,
it is the intention of the persons named in the enclosed form of proxy to vote
such proxy in accordance with their judgment on such matters.
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THE PROPOSED MERGER AND RELATED MATTERS
BACKGROUND OF THE MERGER
On March 5, 1996, Mr. Doug Tibetts, President of Equitable (formerly the
indirect parent of LLPM which holds 1,685,556 EQK Shares), met with ART
representatives at ART's office in Dallas. The meeting was general in nature
without a formal agenda. Mr. Tibetts suggested that representatives of ART speak
with Mr. Gregory R. Greenfield, Executive Vice President and Treasurer of EQK,
concerning the possible sale of EQK. During March and April of 1996, various
telephone conversations were held between Mr. Cooper B. Stuart, an Executive
Vice President of BCM, an affiliate of and advisor to ART, and Mr. Greenfield
regarding the Center and a possible transaction involving EQK.
In August of 1996, Messrs. Stuart and Greenfield had various additional
discussions regarding the possible sale of EQK. Mr. Greenfield informed Mr.
Stuart that EQK needed to focus on completing the sale of certain properties and
Messrs. Stuart and Greenfield agreed to discontinue their discussions until the
beginning of 1997.
On January 23, 1997, representatives of ART held a meeting with Mr. William
G. Brown, Vice President and Controller of EQK, and Mr. Greenfield to discuss a
proposed exchange offer by ART with respect to the EQK Shares. EQK agreed to
engage the Financial Advisor to review the fairness of the proposed exchange
offer for the EQK Board.
On February 20, 1997, Mr. Stuart and Mr. A. Cal Rossi, Jr., an Executive
Vice President of BCM, met with Messrs. Greenfield and Brown to further discuss
the proposed exchange offer pursuant to which ART would offer to exchange a
combination of cash and ART Preferred Shares for up to 50% of the outstanding
EQK Shares.
On March 6, 1997, ART and EQK entered into a cost sharing agreement with
respect to the proposed exchange offer. Under the terms of such agreement, (i)
if ART and EQK do not execute a definitive agreement, EQK's liability would
shall be limited to the lesser of 50% of the actual transaction costs or $50,000
and ART shall be responsible for all additional transaction costs, (ii) if ART
and EQK agree upon the terms of and execute a definitive agreement and proceed
in good faith to complete the proposed transaction, but are unsuccessful in this
effort by reason of inadequate shareholder response to the related proxy
statement or otherwise, EQK's liability shall be limited to the lesser of 50% of
the actual transaction costs or $100,000, and ART shall be responsible for all
additional transaction costs, and (iii) if the proposed transaction is
ultimately initiated and successfully achieves the desired shareholder exchange
in accordance with the terms of a definitive agreement, EQK's liability shall be
limited to the lesser of 50% of the actual transaction costs or $150,000, and
ART shall be responsible for all additional transaction costs.
On March 24, 1997, representatives of the Financial Advisor visited ART's
offices to interview key personnel of both ART and BCM.
During April 1997, discussions continued between representatives of ART and
EQK concerning the terms of the ART Preferred Shares, the terms of the proposed
exchange offer and the fairness opinion. Although an offer was never extended,
ART informally proposed to offer to exchange a combination of (i) cash of
approximately $0.40 per share and (ii) ART Preferred Shares having a liquidation
value of approximately $1.85 for up to 50% of the outstanding EQK Shares. EQK
had 9,264,344 shares outstanding and Prudential, the lender on the Center, held
the Prudential Warrants, for a total of 9,632,212 shares. The ART Preferred
Shares would pay a 10% annual dividend beginning August 16, 1998 and have a
stated liquidation value of $10.00 per ART Preferred Share, plus accrued and
unpaid dividends. If the proposed exchange offer was 100% successful and ART
acquired 4,632,172 shares of EQK and if the actual exchange offer was the same
as that informally discussed, ART would have paid $1,852,869 in cash and issued
856,952 ART Preferred Shares (having a liquidation value of $8,569,520). The
terms of the ART Preferred Shares have not changed in any material manner from
those preliminary discussions. For a description of the ART Preferred Shares see
"Description of the Capital Stock of ART -- ART Preferred Shares." On April 11,
1997, BCM received from EQK a copy of a draft appraisal with respect to the
leasehold interests in the Center. On May 7, 1997, the Financial Advisor orally
issued a fairness opinion with respect to the terms of the proposed exchange
offer. The EQK Board met on May 7, 1997 and approved the terms of the proposed
exchange offer from ART to the EQK Shareholders.
On June 10, 1997, Lend Lease Corporation acquired ERE, including its
subsidiaries, LLPM and Compass. In connection with such acquisition, the
ownership of LLPM's EQK Shares was transferred for tax purposes, thus
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effectively limiting the number of EQK Shares that could be acquired by ART in
an exchange offer without limiting the availability of EQK's NOLs. As a result,
during June and July of 1997, Mr. Stuart and Mr. Brown held further discussions
regarding a proposed change in the structure of the transaction from an exchange
offer to a merger and two separate stock purchases between ART and each holder
of 5% or more of the EQK Shares (excluding ART) (each a "5% Holder") who had
acquired or experienced a change in ownership in EQK Shares during the past
three years. The merger would result in the EQK Shareholders (other than LLPM
and Greenspring which would sell all of their shares in the stock purchase
transactions) retaining all of their EQK Shares and receiving a combination of
cash and ART Preferred Shares. The public EQK Shareholders' aggregate percentage
interest in EQK would be reduced as a result of the issuance of EQK Shares to
ART pursuant to the merger. This reduction in percentage interest would
effectively be equivalent to the sale by each public EQK Shareholder of
approximately 25% of such EQK Shareholder's shares at the same price per share
($.40 in cash and a portion of an ART Preferred Share with a Liquidation Value
of $1.85) as was to be offered in the exchange offer. It was then contemplated
that LLPM and Greenspring would receive for each EQK Share sold by them a
portion of an ART Preferred Share with a Liquidation Value of $2.25.
On July 9, 1997, ART and EQK entered into a revised cost sharing agreement
that reflected the change in the proposed structure of the transaction from an
exchange offer to a merger. The terms and conditions of the revised cost sharing
agreement remained substantially the same.
During August and September 1997, the Financial Advisor evaluated the
revised structure of the transaction and recommended that the consideration to
be paid to LLPM and Greenspring in connection with the Block Purchase should be
reduced to 0.185 shares of ART Preferred Stock per EQK Share. This
recommendation was adopted and, as a result, the non-cash consideration per
share to other EQK Shareholders was increased from .0492 to 0.0616 of an ART
Preferred Share. The Financial Advisor evaluated the initial revised structure
and noted that the value of the consideration to be paid in the Block Purchase
(as derived by the Financial Advisor) exceeded the value of (i) the
consideration to be paid to the Public EQK Shareholders plus (ii) their retained
interest in the diluted EQK Shares (also as derived by the Financial Advisor).
The Financial Advisor then recommended that the consideration to be paid in the
Block Purchase be reduced to approximate the value of the consideration to be
paid to the Public EQK Shareholders plus their retained interest. Accordingly,
the terms of the Block Purchase were revised to provide that ART would purchase
all of the EQK shares held by LLPM and Greenspring (2,269,356 shares or
approximately 23.56% of the outstanding EQK Shares prior to the Merger) in
exchange for 0.185 ART Preferred Shares (having a Liquidation Value of $1.85 per
share) per each EQK Share for an aggregate of 419,831 ART Preferred Shares
(having an aggregate Liquidation Value of $4,198,309). Together with the EQK
Shares it proposed to acquire in connection with the merger, ART would own 49%
of the issued and outstanding EQK Shares.
As a further condition precedent to the Merger, ART agreed to offer to
enter into a Standstill Agreement with each 5% Holder of EQK Shares (other than
LLPM and Greenspring) whereby ART would pay $0.10 per existing EQK Share held by
the two remaining 5% Holders (paid on a maximum of 2,156,600 EQK Shares or a
maximum of $215,660 in cash) as compensation for such holder's agreement not to
sell any of its EQK Shares or acquire any additional EQK Shares for a period of
42 months after the consummation of the Merger.
As consideration for the Merger, the Public EQK Shareholders would have
been entitled to receive approximately 453,552 ART Preferred Shares (having a
liquidation value of $4,535,519) and $1,884,891 in cash. Each Public EQK
Shareholder would also have been entitled to retain its EQK Shares. In addition,
as consideration for the Merger, ART would be entitled to receive 4,804,761
newly-issued EQK Shares.
ART had also agreed to issue 333,500 ART Preferred Shares (having a
Liquidation Value of $3,335,000) to LLPM in settlement of deferred advisory and
disposition fees owed by EQK to LLPM under the Advisory Agreement. One- half of
the deferred advisory fee (136,000 ART Preferred Shares having a Liquidation
Value of $1,360,000) would have been paid to LLPM at closing, and the other half
would have been paid to LLPM three years after the Closing Date. BCM would act
as successor advisor to EQK under the terms and conditions of a new advisory
agreement.
On September 30, 1997, the Financial Advisor orally issued a revised
fairness opinion with respect to the proposed Merger.
On September 30, 1997 and November 13, 1997, the EQK Board and the ART
Board, respectively, approved the terms of the initial Agreement and Plan of
Merger (the "Original Merger Agreement").
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In October 1997 Mr. Brown contacted Greenspring regarding its interest in
the Block Purchase. From September 30, 1997 until December 24, 1997 the parties
held numerous telephone conferences to finalize the definitive agreements for
the Merger and Block Purchase.
On December 24, 1997, ART and EQK issued a joint press release to the
effect that the Original Merger Agreement had been signed.
On January 6, 1998, ART filed the Registration Statement with the
Commission.
In January 1998, ART and EQK learned of the Halperin Purchase from a
Schedule 13D filing made by Halperin. During January and February of 1998,
Mssrs. Stuart and Brown had several discussions regarding the Halperin Purchase.
After consulting with its counsel, ART decided that it would make an offer to
Halperin to purchase his EQK Shares after the Registration Statement had been
declared effective by the Commission. Such offer would be made upon the same
terms and conditions as ART's offer to purchase the EQK Shares held by LLPM and
Greenspring. If Halperin declined such offer, ART would amend the Registration
Statement to reflect such fact, but the consideration to be paid to the Public
EQK Shareholders, LLPM and Greenspring pursuant to the Merger and the Block
Purchase would remain the same.
On February 20, 1998, ART received the Commission's comments to the
Registration Statement.
During March and April 1998, ART and EQK prepared their respective
responses to the Commission's comments to the Registration Statement.
On March 19, 1998, Prudential gave EQK notice of its intent to exercise the
Prudential Warrants. The Prudential Warrants were exercised on April 8, 1998 and
on May 7, 1998, 367,868 EQK Shares were issued to Prudential.
On April 23, 1998, the NYSE announced that trading in the EQK Shares would
be suspended prior to the opening of the NYSE on May 4, 1998 because EQK had
fallen below the NYSE's continued listing criteria for net tangible assets
available to common stock (less than $12 million) and 3-year average net income
(less than $600,000).
During May 1998, Mr. Brown informed Mr. Stuart that the EQK Board had
decided that it was in the best interests of the EQK Shareholders to terminate
the Original Merger Agreement and to sell the Center and distribute the net
liquid assets to the EQK Shareholders. Mr. Brown stated that the EQK Board was
concerned that the Original Merger Agreement would hinder EQK's ability to
consummate a sale of the Center by December 15, 1998, the date on which the
forbearance agreement relating to the Center's mortgage terminates.
During May 1998, Mr. Brown and Mr. Stuart held various discussions
regarding the proposed termination of the Original Merger Agreement. On May 15,
1998, Mr. Stuart executed and delivered to Mr. Brown a letter setting forth
ART's desire to continue discussions with EQK for a modified structure and ART's
consent to the proposed sale of the Center prior to the consummation of the
Merger.
During May through August of 1998, Mr. Brown and Messrs. Stuart and Rossi
held further discussions regarding a revised structure for the Merger in which
ART would permit EQK to sell the Center prior to the consummation of the Merger
and EQK would agree to purchase the Oak Tree Village from ART upon terms that
were mutually acceptable to EQK and ART. The parties agreed to reduce the
consideration to be paid by ART in connection with the Merger and the Block
Purchase since the EQK Shareholders (including LLPM, Greenspring and Halperin)
would receive the net proceeds from the sale of the Center. The parties agreed
that the consideration to be paid to LLPM, Greenspring and Halperin in
connection with the Block Purchase would be a portion of an ART Preferred Share
with a Liquidation Value of $0.328 per EQK Share purchased and the consideration
to be paid to the Public EQK Shareholders would be a portion of an ART Preferred
Share with a Liquidation Value of $0.157 per EQK Share, with the Public EQK
Shareholders retaining all of their EQK Shares subject to the dilution resulting
from the issuance of additional EQK Shares as the ART Merger Consideration.
As a result of the revised structure and the sale of the Center prior to
the consummation of the Merger, the EQK Board determined that it would no longer
be practicable to obtain a fairness opinion with respect to the Merger. In this
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regard, EQK obtained the right to solicit and negotiate regarding alternate
proposals subject to the obligation to make certain termination payments under
certain specified circumstances as described under "The Proposed Merger and
Related Matters -- Solicitation Permitted; Board Action; Fees and Expenses."
In August 1998, Summit and Sutter each filed a Schedule 13G with the
Commission disclosing the Summit/Sutter Purchases. These purchases were from one
of the 5% Holders. During August 1998, Messrs.. Stuart and Brown had several
discussions regarding the impact of the Summit/Sutter Purchases. One effect of
the Summit/Sutter purchases was to reduce, as a result of tax considerations,
the number of shares that ART could purchase that were held by Public EQK
Shareholders. As a result, the parties determined that the terms of the
consideration for the Merger and the Block Purchases should be adjusted so that
the consideration to be paid to LLPM, Greenspring, Summit, Sutter and Halperin
in connection with the Block Purchase would be a portion of an ART Preferred
Share with a liquidation value of $0.30 per EQK Share purchased and the
consideration to be paid to the Public EQK Shareholders would be a portion of an
ART Preferred Share with a liquidation value of $0.14 per EQK Share, with the
Public EQK Shareholders retaining all of their EQK Shares subject to the
dilution resulting from the issuance of additional EQK Shares as the ART Merger
Consideration. Upon reaching a preliminary agreement as to the consideration for
the Merger and the Block Purchases, ART then offered to purchase from Summit and
Sutter all of their respective EQK Shares upon the same terms and conditions as
the LLPM and Greenspring purchases. Each of Summit and Sutter has accepted ART's
purchase offer. Additionally, on August 27, 1998, Summit and Sutter each
purchased one half of Greenspring's total EQK shares, thereby increasing the
number of shares to be acquired by ART from Summit and Sutter pursuant to the
Block Purchases.
As a condition precedent to the Merger, ART also agreed to offer to enter
into a Standstill Agreement with the remaining 5% Holder (other than LLPM,
Summit, Sutter and Halperin) whereby ART would pay $0.10 per existing EQK Share
held by the such 5% Holder (paid on a maximum of 906,600 shares or a maximum of
$90,660 in cash) as compensation for such 5% Holder's agreement not to sell any
of its EQK Shares or acquire any additional EQK Shares for a period of 42 months
after the consummation of the Merger.
On August 25, 1998, ART and EQK executed the Merger Agreement.
GENERAL
The following description of the Merger and the Merger Agreement does not
purport to be complete and is qualified in its entirety by reference to the
Merger Agreement, a copy of which is attached as Appendix B to this
Prospectus/Proxy Statement and incorporated herein by reference. EQK
Shareholders are urged to read the Merger Agreement in its entirety.
EFFECTS OF THE MERGER
The Merger Agreement provides that, subject to the Requisite Shareholder
Approval of the Merger-Related Proposals and the satisfaction or waiver of the
other conditions to the Merger, ART Newco will be merged with and into EQK,
whereupon the separate existence of ART Newco will cease and EQK will be the
surviving corporation of the Merger. At the Effective Time (as defined below),
the payment of the EQK Merger Consideration will be effected as described below.
The Amended Declaration of Trust and the Trustees' Regulations, as in effect at
the Effective Time, will continue to be the Declaration of Trust and Trustees'
Regulations of EQK after consummation of the Merger. Following completion of the
Merger, the New EQK Board (as defined herein under "The Board Election
Proposal") will be comprised of the individuals identified above in "The Board
Election Proposal."
EFFECTIVE TIME OF THE MERGER
Following the adoption of the Merger Agreement by the EQK Shareholders and
subject to satisfaction or waiver of the terms and conditions thereof, the
Merger will become effective upon the filing of a Certificate of Merger filed
with the Secretary of the Commonwealth of Massachusetts at the Effective Time.
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TERMS OF THE MERGER
At the Effective Time, ART will pay the EQK Merger Consideration to the EQK
Shareholders and EQK will pay the ART Merger Consideration to ART.
Following the Effective Time, American Stock Transfer and Trust Company,
which will act as Merger Agent (the "Merger Agent") in connection with the
Merger, shall distribute or shall cause the Dealer Manager, an affiliate of ART
and BCM, to distribute the EQK Merger Consideration to each EQK Shareholder of
record. In addition, following the Effective Time, EQK will distribute the ART
Merger Consideration to ART. No interest will be paid or accrued on the Merger
Consideration. No EQK Shareholder will be entitled to dividends or other rights
in respect of any fractional interests. See "--Cash in Lieu of Fractional Shares
of ART Preferred Shares."
ART or the Merger Agent shall be entitled to deduct and withhold from the
EQK Merger Consideration otherwise payable pursuant to the Merger Agreement to
any EQK Shareholder such amounts as ART or the Merger Agent is required to
deduct and withhold with respect to the making of such payment under the Code,
or any provision of state, local or foreign tax law. To the extent that amounts
are so withheld by ART or the Merger Agent, such withheld amounts shall be
treated for all purposes as having been paid to the holder of the EQK Shares in
respect of which such deduction and withholding was made by ART or the Merger
Agent. See "The Proposed Merger and Related Matters -- Federal Income Tax
Consequences."
None of ART, ART Newco, EQK or the Merger Agent shall be liable to any
person in respect of any EQK Merger Consideration delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
The ART Preferred Shares to be issued to EQK Shareholders in connection
with the Merger will be freely transferable under the Securities Act, except for
shares issued to any person who may be deemed to be an "affiliate" of ART or EQK
within the meaning of Rule 145 under the Securities Act. It is expected that the
affiliates of ART and EQK will be able to sell such shares without registration
in accordance with the applicable limitations of Rule 145 under the Securities
Act.
CASH IN LIEU OF FRACTIONAL SHARES OF ART PREFERRED SHARES
No certificates representing fractional shares of ART Preferred Shares will
be issued pursuant to the Merger. In lieu thereof, each EQK Shareholder who
would otherwise be entitled to a fractional ART Preferred Share will receive, on
the date the EQK Merger Consideration is paid to such EQK Shareholder, cash in
an amount equal to such fraction (expressed as a decimal and rounded to the
nearest 0.01 of a share) multiplied by the Liquidation Value of an ART Preferred
Share.
AVAILABILITY OF APPRAISAL RIGHTS
The EQK Board has been advised that no statutory appraisal rights are
available to EQK Shareholders in connection with the Merger under Massachusetts
law. However, in at least one case, the Massachusetts Supreme Judicial Court
held that shareholders of a merging corporation were entitled to common law
appraisal rights. Neither ART nor EQK believes that the Merger would give rise
to such common law appraisal rights. However, any EQK Shareholder may, by
written notice prior to the EQK Annual Meeting, assert his or her entitlement to
common law dissenter's appraisal rights. EQK intends to oppose any such
assertion of such rights. In the event that holders of more than 3% of the
outstanding EQK Shares assert common law dissenter's appraisal rights, the
Merger Agreement may be terminated.
All written notices of an EQK Shareholder's assertion of common law
dissenter's appraisal rights with respect to the Merger, if any, should be
addressed to: EQK Realty Investors I, Inc., 5775 Peachtree Dunwoody Road, Suite
200D, Atlanta, Georgia 30342, Attention: Secretary, and should be executed by,
or with the consent of, the holder of record. In the notice, the EQK
Shareholder's name should be stated as it appears on his or her stock
certificates(s). If the EQK Shares are owned of record in a fiduciary capacity,
such as by a trustee, guardian or custodian, such notice should be executed by
or for the fiduciary. If the EQK Shares are owned of record by or for more than
one person, as in a joint tenancy or tenancy in common, such notice should be
executed by or for all joint owners. An authorized agent, including an agent for
two or more joint owners, may execute the notice for an EQK Shareholder of
record; however,
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the agent should identify the record owner(s) and expressly disclose the fact
that, in sending the notice, he is acting as agent for the record owners.
CONDITIONS TO THE MERGER; TERMINATION; WAIVER AND AMENDMENT
In addition to the Requisite Shareholder Approval, the obligations of ART
Newco on the one hand and EQK on the other to consummate the Merger are subject
to the satisfaction or waiver of certain other conditions including, among
others: (i) the consummation of the Block Purchase, (ii) the Requisite
Shareholder Approval of the Merger-Related Proposals, (iii) the acquisition by
EQK from ART of the Oak Tree Village upon the terms and conditions described
herein under "--Sale of the Center and Acquisition of Oak Tree Village," (iv)
EQK's sale of the Center and distribution of the net liquid assets to the EQK
shareholders, (v) the execution by such 5% Holder (other than LLPM, Summit,
Sutter and Halperin) of an agreement pursuant to which each 5% Holder will
receive $0.10 cash per EQK Share held by such 5% Holder in exchange for a
restriction on the rights of such 5% Holder to sell or purchase any EQK Shares
for a period of 42 months after the consummation of the Merger (a "Standstill
Agreement"), (vi) the authorization of the ART Preferred Shares for listing on
the NYSE, subject to official notice of issuance, (vii) no stop order suspending
the effectiveness of the Registration Statement having been issued and no
proceedings for that purpose having been initiated or threatened by the
Commission, (viii) no order, injunction or decree issued by any court or agency
of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger, (ix) the receipt by ART and EQK of all required
material governmental authorizations, permits, consents, orders or approvals,
(x) the receipt of all licenses, permits, consents, approvals and authorizations
from all third parties and governmental bodies and agencies which are necessary
in connection with consummation of the Merger and the conduct of EQK's business
after the Merger (xi) EQK operating in all respects in its ordinary course of
business without any material adverse change in its business, properties or
financial condition, (xii) the receipt by ART of written resignations from all
members of the current EQK Board, (xiii) the number of outstanding EQK Shares
immediately prior to the Merger being 9,632,212 and no additional EQK Shares or
other equity interests or any option, warrant, right or other security
exercisable for, convertible into or exchangeable for EQK Shares or other equity
interests in EQK being issued since June 30, 1998, and (xiv) the representations
and warranties of EQK in the Merger Agreement being true, complete and accurate
in all material respects as of the date when made and as of the date the Merger
is consummated. EQK intends to resolicit shareholder approval for the Merger if
EQK desires to waive any material condition specified above.
The obligations of ART to consummate the Merger are subject to the
satisfaction or waiver of certain other conditions including, among others: (i)
the continuing accuracy in all material respects of the representations and
warranties made by EQK in the Merger Agreement; (ii) the performance in all
material respects of all agreements and covenants to be performed by EQK or LLPM
under the Merger Agreement; (iii) the receipt of certain opinions of counsel;
(iv) the exercise in full, termination or cancellation of any options or
warrants (or other derivative or convertible interests in the equity securities
of EQK) for EQK Shares, and (v) there having been no change in EQK's business,
results of operations or financial condition which would have a material adverse
effect on EQK.
The obligations of EQK to consummate the Merger are subject to the
satisfaction or waiver of certain other conditions including, among others: (i)
the continuing accuracy in all material respects of the representations and
warranties made by ART in the Merger Agreement; (ii) the performance in all
material respects of all agreements and covenants to be performed by ART under
the Merger Agreement; and (iii) there having been no change in ART's business,
results of operations or financial condition had occurred which would have a
material adverse effect on ART.
The Merger Agreement may be terminated and the Merger abandoned prior to
the Effective Time, whether before or after the Requisite Shareholder Approval:
(i) by mutual written consent of ART, ART Newco and EQK; (ii) by ART Newco or
ART, on or after December 15, 1998, if any of the conditions precedent to ART or
ART Newco's obligations under the Merger Agreement have not been met or, to the
extent permitted by applicable law, have not been waived in writing by ART and
ART Newco prior to such date, (iii) by EQK on or after December 15, 1998, if any
of the conditions precedent to EQK's obligations under the Merger Agreement have
not been met or, to the extent permitted by applicable law, have not been waived
in writing by EQK prior to such date; (iv) by EQK if EQK accepts a proposal from
a party other the ART or ART's affiliates concerning a merger, sale of
substantial assets or similar transaction involving EQK or the sale of any EQK
Shares, (iv) by EQK upon a Negative Determination, or (v) by EQK if the EQK
Board determines that compliance with the Merger Agreement is reasonably likely
to materially impair or delay its ability to sell the Center or result in a
material reduction in the consideration that would be received by EQK in
connection with such sale.
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<PAGE> 51
ART and EQK may, by an appropriate instrument executed at any time prior to
the Effective Time, whether before or after the Requisite Shareholder Approval
is obtained, amend the Merger Agreement; provided that after the receipt of such
approvals, no amendment or modification may be made which alters the amount or
changes the form of the EQK Merger Consideration or ART Merger Consideration.
The parties to the Merger Agreement may also, at any time prior to the
Effective Time, by action taken by its Board of Directors or Trustees, as
applicable: (i) extend the time for the performance of any of the obligations or
other acts of the other party; (ii) waive any inaccuracies in the
representations and warranties contained in the Merger Agreement or in any
document delivered pursuant thereto and (iii) subject to limitations on
amendment, waive compliance with any of the agreements or conditions contained
in the Merger Agreement to the extent permitted by law.
SOLICITATION PERMITTED; BOARD ACTION; FEES AND EXPENSES
The Merger Agreement provides that EQK and those acting on its behalf may
solicit, encourage, or initiate any discussions with, or provide any information
to, any person or entity concerning any merger, sale of substantial assets, or
similar transaction involving EQK, or any sale of any of the EQK Shares. EQK
must notify ART in writing of all of the relevant details relating to all
inquiries and proposals which it may receive relating to any of such matters. In
the event that EQK accepts such an offer or proposal from a party other than ART
or its affiliates and, as a result terminates the Merger Agreement, EQK must pay
ART a termination or "break-up" fee of $200,000, plus EQK's share of any
expenses related to the Merger in accordance with the terms of the Cost Sharing
Agreement.
CONDUCT OF EQK'S BUSINESSES PENDING COMPLETION OF THE MERGER
The Merger Agreement provides that, prior to the Effective Time or the
termination of the Merger Agreement pursuant to its terms, unless ART shall
otherwise consent in writing, EQK will conduct its operations according to its
ordinary and usual course of business and will not (i) enter into or agree to
any transaction outside the ordinary course of business, (ii) incur any
additional indebtedness for borrowed money except pursuant to existing lines of
credit and in the ordinary course of business and except in connection with the
acquisition of the Oak Tree Village from ART, (iii) pay dividends on or make
other distributions or payments in respect of its capital stock other than in
connection with the sale of the Center, (iv) issue any additional equity
securities or any option, warrant, right or other security exercisable for,
convertible into or exchangeable for any equity securities, (v) increase or
agree to increase the salary, compensation, bonus or benefits of any officer,
Trustee or employee of EQK other than in the ordinary course of business (except
for reasonable consideration to be granted to Trustees upon their retirement
from the EQK Board) or (vi) sell or otherwise dispose of any of its properties,
with the exception of the Center, other than in the ordinary course of business.
SALE OF THE CENTER AND ACQUISITION OF OAK TREE VILLAGE
Pursuant to the Merger Agreement, ART has consented to (i) the acquisition
by EQK of the Oak Tree Village upon the terms and conditions described below,
(ii) the sale of the Center by EQK upon such terms and conditions as EQK shall
determine, (iii) the retirement of the mortgage debt on the Center, (iv) the
payment of all other obligations of EQK (other than those associated with the
Oak Tree Village), (v) all actions that EQK determines are necessary and
appropriate to effectuate the foregoing actions, and (vi) the distribution of
the net proceeds from the sale of the Center to the EQK Shareholders.
Subject to Requisite Shareholder Approval of the Merger-Related Proposals,
EQK has agreed to acquire the Oak Tree Village from ART. Oak Tree Village is a
retail shopping center located in Lubbock, Texas. The municipal address of Oak
Tree Village is 3701 19th Street and 3702 20th Street, Lubbock, Lubbock County,
Texas. Although the Oak Tree Village is classified as a "retail shopping
center," its usage includes both retail and medical office applications. One
tenant, American Home Patient, occupies ten percent or more of the rentable
square footage of the Oak Tree Village and the principal nature of business of
such tenant is the sale of home health care equipment. The principal business
carried on in or from the Oak Tree Village is the retail sale of goods and
professional services. ART acquired the Oak Tree Village for investment
purposes. ART currently has no plans to renovate, improve or further develop the
Oak Tree Village.
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<PAGE> 52
As of June 30, 1998, the Oak Tree Village was encumbered by a first lien
mortgage in the principal amount of $1,530,046 in favor of Midland Loan Services
(the "Lender"). In connection with the Merger, ART will sell the Oak Tree
Village to EQK pursuant to the terms of a real estate purchase and sale
agreement which will provide for, among other things, the purchase by EQK of the
Oak Tree Village for a total consideration of $2,780,046, consisting of an
assumption by EQK of $1,530,046 in existing debt (subject to Lender's approval)
and a non-recourse promissory note (the "Note") by EQK payable to ART in the
amount of $1,250,000 that shall bear interest at a rate of 12% per annum and
shall be payable quarterly in installments of interest only over a term of five
years with a final principal payment being due on December 15, 2003. If the
Lender approves the terms of the transaction, the Note will be secured by a
second lien mortgage on the Oak Tree Village in favor of ART.
Pursuant to the Real Estate Purchase and Sale Agreement, ART will agree to
indemnify and hold EQK harmless from and against any liabilities to which EQK
may become subject that cannot be satisfied by the disposition of the Oak Tree
Village.
Upon the sale of the Center and the acquisition of the Oak Tree Village by
EQK, the Oak Tree Village will be the sole real estate asset of EQK.
The principal tenants of the Oak Tree Village are American Home Patient,
Southwest Hematology Oncology and Uniform Today. The principal tenants of the
Oak Tree Village lease their space and the underlying land pursuant to leases
which are summarized below.
<TABLE>
<CAPTION>
Principal Tenant Area Minimum Expiration Renewal
---------------- (Sq. Ft.) Annual Rent Date Options
--------- ----------- ---- -------
<S> <C> <C> <C> <C>
American Home Patient 4,931 $29,900 3/31/99 No
Southwest Hematology 4,437 $28,841 11/30/98 No
Oncology
Uniform Today 3,973 $40,723 2/28/02 No
</TABLE>
The following table shows lease expiration information for the tenants of
the Oak Tree Village at June 30, 1998:
<TABLE>
<CAPTION>
% of
Gross 1997 Aggregate 1998
Number of Leased Minimum Minimum
Leases Area Annual Annual
Year Expiring (a) (Sq. Ft.) Rent Rent
---- ------------ --------- ------ -----
<S> <C> <C> <C> <C>
Month to Month -- -- $ -- --%
1998 3 7,973 54,971 16.12%
1999 6 9,769 77,165 22.63%
2000 7 13,198 119,043 34.91%
2001 2 4,925 36,431 10.68%
2002 2 5,922 53,392 15.66%
2003 -- -- -- --%
2004 -- -- -- --%
2005 -- -- -- --%
2006 and thereafter -- -- -- --%
---- -------- -------------- ------
TOTAL 20 41,787 $ 341,002 100.00%
=== ======== ============== ======
</TABLE>
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<PAGE> 53
- ----------------
(a) Assumes no renewal options will be exercised in order to show the earliest
termination of the leases.
According to a report prepared by an independent appraiser in February
1997, with respect to Oak Tree Village, there are no plans for the construction
of new multi-tenant retail shopping centers in the immediate vicinity of Oak
Tree Village. According to a February 1998 report by the Blosser Company on the
Lubbock, Texas area, retail vacancy for multi-tenant shopping centers in the
Lubbock, Texas area increased approximately 1% from early 1997 and the market
appeared to be stabilizing at a 14% to 15% vacancy level. Rental rates have been
fairly stable during 1997. There were few sales of retail centers during 1997.
According to such report by the Blosser Company, there has been no
significant new multi-tenant office building construction in the Lubbock, Texas
area since 1990 because the rental rates have not yet improved to the point of
economic feasibility. As of February 1998, office vacancy had decreased
approximately 1% from early 1997. There have been several office building sales
in recent months as a result of the positive rental trend. Office buildings have
been in greater demand lately than in early 1997 by investors seeking longer
term investments.
In October 1997, ART refinanced, at maturity, the $1.4 million mortgage
debt secured by the Oak Tree Village for $1.5 million. ART received no net
financing proceeds after the payoff of the existing mortgage and the payment of
various closing costs associated with the refinancing. The new loan bears
interest at a rate of 8.48% per annum, requires monthly principal and interest
payments of $13,344 and matures in October 2007. If the new loan is voluntarily
prepaid, the related mortgage provides that the following prepayment
consideration will be payable to the lender:
Years 1-3: The greater of (i) three percent (3%) of the outstanding
principal balance of the mortgage note at the time of
prepayment or (ii) the Yield Maintenance Amount (as defined
below).
Year 4: The greater of (i) two percent (2%) of the outstanding
principal balance of the mortgage note at the time of
prepayment or (ii) the Yield Maintenance Amount.
Year 5-9: The greater of (i) one percent (1%) of the outstanding
principal balance of the mortgage note at the time of
prepayment or (ii) the Yield Maintenance Amount.
Year 10
through
maturity: No prepayment consideration is required.
The "Yield Maintenance Amount" is the present value, as of the date of
prepayment, of the remaining scheduled payments of principal and interest from
the date of prepayment through the maturity date of the loan(including any
balloon payment) determined by discounting such payments at the Discount Rate
(hereinafter defined), less the amount of principal being prepaid. The "Discount
Rate" is that rate which, when compounded monthly, is equal to the Treasury Rate
(hereinafter defined) when compounded semi-annually. The "Treasury Rate" is the
yield calculated by the linear interpolation of the yields, as reported in
Federal Reserve Statistical Release H.15-Selected Interest Rates under the
heading U.S. Government Securities/Treasury Constant Maturities for the week
ending prior to the date of prepayment, of U.S. Treasury constant maturities
with maturity dates (one longer and one shorter) most nearly approximating the
maturity date of the new loan.
Real estate taxes are levied against the Oak Tree Village for county and
township, and school tax purposes. The Oak Tree Village was assessed $53,770 in
real estate taxes in 1997. The 1997 millage rate was 2.42/100. ART estimates
that the Oak Tree Village will owe approximately $54,000 in real estate taxes in
1998. Real estate taxes are substantially reimbursed by the tenants through real
estate tax recovery billings.
As of December 31, 1997, for Federal income tax purposes, ART depreciates
the New Property under the MACES as follows:
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<PAGE> 54
Buildings:
Gross Federal Income Tax Basis $1,430,781
Accumulated Depreciation $ 40,241
Depreciation Method MACES - Straight Line ("SL")
Depreciable Life 40 years
Land Improvements:
Not Applicable.
Personal Property:
Not applicable.
ART'S PURPOSES FOR THE MERGER
ART intends to acquire an aggregate of 5,050,032 EQK Shares pursuant to the
Merger and the Block Purchase primarily for the purpose of investment and in
order to achieve the listing of the ART Preferred Shares on the NYSE. The ART
Board believes that the issuance and the proposed listing of the ART Preferred
Shares on the NYSE in connection with the Merger would provide ART with greater
access to the public capital markets for future acquisition transactions. The
ART Board also considered the amount of EQK's net operating losses (the "NOLs")
which currently approximate $94,000,000 and the resulting benefits to ART of
acquiring an indirect interest in such NOLs through EQK pursuant to the Merger.
Assuming market conditions, industry conditions and EQK's business and financial
condition do not suffer adversely in the interim, it is currently ART's
intention (but not obligation) to seek to acquire substantially all of the
remaining outstanding EQK Shares at some time after the third anniversary of the
consummation of the Merger for consideration of 0.0486 of an ART Preferred Share
(with a Liquidation Value of $0.486) per currently outstanding EQK Share.
Notwithstanding the foregoing, ART is not obligated to make any further
acquisitions of EQK Shares and no assurance can be given that ART will make any
such acquisitions in the future. In addition, any such acquisitions may be for a
consideration per EQK Share which is greater or less than the consideration
offered in the Merger or set forth above.
THE EQK BOARD RECOMMENDATION
The EQK Board believes that the Merger is fair to, and in the best
interests of, EQK and the holders of EQK Shares. By unanimous vote, the EQK
Board approved the Merger and the transactions contemplated thereby and
unanimously recommend that the EQK Shareholders approve the Merger.
In approving the Merger Agreement and determining to recommend that the EQK
Shareholders approve the Merger, the EQK Board considered certain information,
including primarily the following:
(i) The financial condition, results of operations, business and
prospects of EQK.
(ii) Certain publicly available information regarding the financial
condition, results of operations, business and properties of ART.
The following factors were deemed by the EQK Board to be reasons supporting
its recommendation that the EQK Shareholders approve the Merger.
(i) Based upon available information and taking into account that the
Center is expected to be sold and the remaining assets of EQK
distributed prior to the Merger, the Merger consideration appears to
represent, in the judgment of the EQK Board, the highest available
return to EQK Shareholders.
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<PAGE> 55
(ii) ART has indicated its intention, without legal obligation, to
purchase all or substantially all of the remaining EQK Shares
approximately three years after the Merger for additional ART
Preferred Shares with a Liquidation Value of $0.486 per EQK Share.
(iii) The Merger-Related Proposals are subject to Requisite Shareholder
Approval (i.e., a 75% supermajority vote).
(iv) EQK has the right to solicit competing offers for the EQK Shares,
subject to the obligation to make specified termination payments to
ART in certain circumstances if a competing offer is accepted.
(v) EQK has the right to terminate the Merger Agreement if it determines
that compliance with the Merger Agreement is reasonably likely to
materially impair or delay its ability to dispose of the Mall, or
result in a material reduction in the consideration that would be
received by EQK or the EQK Shareholders in connection with such
disposition.
(vi) The Merger has been structured to preserve the availability of EQK's
accumulated NOLs, although the EQK Board recognizes that there is no
assurance that some or all of such availability will not be lost as a
result of future changes in the ownership of EQK Shares or otherwise.
(vii) The ART Preferred Shares received as the EQK Merger Consideration
will entitle the recipients thereof to quarterly dividend payments,
whereas the EQK Shares have not been paying dividends.
The following factors were deemed by the EQK Board to be reasons that would
weigh against recommending that the EQK Shareholders accept the Offer (see "Risk
Factors" for a further discussion of certain of these considerations):
(i) The ART Preferred Shares may not trade at or near their Liquidation
Value. Furthermore, the ART Preferred Shares will be subject to the
risks of ART's business, including those described under "Risk
Factors -- Risks Relating to ART's Business."
(ii) It is not practicable to obtain a fairness opinion with respect to
the EQK Merger Consideration and there is no readily ascertainable
market value for the EQK Shares after the sale of the Center.
(iii) There is no assurance that the EQK Shares will have any significant
value after the Merger.
(iv) ART and BCM, an affiliate of and advisor to ART, and certain of their
management personnel had relationships with Southmark Corporation,
which underwent bankruptcy proceedings beginning in July 1989 and was
the subject of various legal proceedings. For a further description
of such bankruptcy and certain related and other legal proceedings,
see the discussion under the caption "Description of ART." See "Risk
Factors -- Potential Risks Associated With Affiliate of Controlling
Shareholder of New Advisor."
(v) Certain conflicts of interest exist with regard to the approval of
the Merger-Related Transactions and the resulting control of EQK by
ART. See "Risk Factors -- Risks Relating to Merger -- Conflicts of
Interest Between LLPM and EQK" and "Risk Factors -- Risks Relating to
Merger -- Conflicts of Interest Between EQK and BCM" herein.
The foregoing discussion of the information and factors considered and
given weight by the Board is not intended to be exhaustive. In view of the
variety of factors considered in connection with its evaluation of the Merger
Agreement and the Merger, the Board did not find it practicable to, and did not,
quantify or otherwise assign relative weights to the specific factors considered
in reaching its determination. In addition, individual members of the Board may
have given different weights to different factors.
FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of material Federal income tax consequences of
the Merger. This summary may not apply to certain classes of persons, including,
without limitation, foreign persons, insurance companies, tax-exempt
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<PAGE> 56
organizations, financial institutions, dealers in securities, persons who
acquired EQK Shares pursuant to the exercise of employee stock options or rights
or otherwise as compensation and persons who hold EQK Shares as part of a
straddle or conversion transaction. This summary is based upon laws,
regulations, rulings and decisions, all of which are subject to change (possibly
with retroactive effect), and no ruling has been or will be requested from the
Internal Revenue Service on the tax consequences of the Merger.
In the opinion of Andrews & Kurth L.L.P., special tax counsel to ART, which
opinion is based upon certain assumptions made with the consent of ART, the
payment of the EQK Merger Consideration to the Public EQK Shareholders pursuant
to the Merger will be treated as a taxable transaction for Federal income tax
purposes.
In general, a Public EQK Shareholder will recognize a gain equal to the
fair market value of the EQK Merger Consideration over the adjusted tax basis of
EQK Shares deemed sold in the taxable Merger. It is expected that such Public
EQK Shareholders will be deemed to have sold approximately 3.6% of their
respective EQK Shares held before the Merger. Such gain will be treated as a
capital gain if the EQK Shares are capital assets in the hands of the Public EQK
Shareholder.
The Federal income tax consequences set forth above are for general
information only. Each EQK Shareholder is urged to consult his own tax advisor
to determine the particular tax consequences to him or her of the Merger,
including the applicability and effect of state, local and other tax laws.
DIVIDEND PAYMENTS. A distribution made with respect to ART Common Shares or
ART Preferred Shares (other than a distribution in redemption of such stock or
in liquidation of ART) will be a dividend for federal income tax purposes to the
extent made out of the current or accumulated earnings and profits, as
determined for federal income tax purposes, of ART. If a distribution exceeds
the current or accumulated earnings and profits of ART, such distribution will
be treated first as a return of capital to the extent of the holder's adjusted
basis in the stock on which the distribution was made (the basis of such stock
would be reduced by the amount of the distribution) and will be treated second
as an amount received from the sale or exchange of the stock on which the
distribution was made.
A domestic corporation which holds ART Common Shares or ART Preferred
Shares will be entitled to the 70% dividends received deduction with respect to
dividends received thereon, subject however to generally applicable limitations
thereon which are discussed below. The special rule that the dividends received
deduction is 80% for a stockholder who owns 20% by vote and value of the stock
of ART is not discussed here. The dividends received deduction (taking into
account dividends received from ART and from other corporations) may not exceed
70% of the taxable income (adjusted as provided in Section 246(b) of the Code)
of the corporate stockholder. Moreover, the dividends received deduction is
completely disallowed if the stock with respect to which the dividend is paid is
not held for 46 days or more during the 90-day period beginning on the date
which is 45 days before the stock becomes ex-dividend (91 days or more during
the 180 day period beginning 90 days before the date on which the stock becomes
ex-dividend, if the dividends are with respect to ART Preferred Shares and are
attributable to a period or periods of 366 days or more) or the holder of such
stock is obligated to make related payments with respect to a position in
substantially similar or related property. The holding period of stock includes
the day of disposition of the stock but not the day of acquisition, does not
include any day which is more than 45 days (or 90 days in the case of ART
Preferred Shares) after the date on which the stock becomes ex-dividend, and is
determined without regard to Section 1223(4) of the Code with respect to wash
sales. A holder may not count toward the required holding period any period
during which it (a) has an option to sell, is under a contractual obligation to
sell, or has made (and not closed) a short sale of substantially identical stock
or securities, (b) is the grantor of an option (other than a qualified covered
call) to buy substantially identical stock or securities, or (c) has diminished
its risk of loss by holding one or more other positions with respect to
substantially similar or related property (with respect to the meaning of which
regulations have recently been proposed). The dividends received deduction is
reduced under Section 246A of the Code to the extent that a holder incurs
indebtedness directly attributable to its investment in the stock with respect
to which the dividend is received. A corporate holder must reduce its basis, but
not below zero, in stock with respect to which an extraordinary dividend is
received by the amount of the extraordinary dividend which is not subject to tax
by reason of the dividends received deduction. An extraordinary dividend is,
with an exception that excludes qualified preferred dividends within the meaning
of Section 1059(e)(3) of the Code from classification thereas, a dividend with
respect to stock held for two years or less on the dividend announcement date
(i) exceeds 5% (10%, in the case of ART Common Shares) of the holder's basis in
the stock, treating all dividends having ex-dividend dates within an 85-day
period as one dividend or (ii) that exceed 20% of the holder's basis in the
stock, treating all dividends having ex-dividend dates within a 365-day
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period as one dividend. Fair market value, if it can be established by the
holder to the satisfaction of the IRS, may be substituted for basis for purposes
of the preceding sentence. In addition, an amount treated as a dividend in the
case of a redemption that is either not pro rata as to all stockholders, an
amount which is a dividend and is part of a partial liquidation, and an amount
which is a dividend with respect to stock the issue price of which exceeds its
liquidation rights or its stated redemption price is an extraordinary dividend
without regard to the length of time that the stock has been held. A holder
disposing of stock with respect to which one or more extraordinary dividends has
been paid will recognize gain upon such disposition, in addition to the gain
which would otherwise be recognized upon such disposition, in an amount which is
equal to the untaxed portion of the extraordinary dividends, if any, which were
in excess of the basis in the stock at the time of the distribution.
Dividend income that is not subject to regular corporate taxation as a
consequence of the dividends received deduction may give rise to alternative
minimum tax liability. Holders of ART Preferred Shares or ART Common Shares may
be liable for state and local income taxes with respect to dividends or other
distributions paid on the ART Preferred Shares or ART Common Shares. Because a
state or locality may not allow, or may limit, a dividends received deduction,
each prospective purchaser of ART Preferred Shares or ART Common Shares is
advised to consult its own tax advisor concerning state and local taxes.
REDEMPTION, SALES AND EXCHANGES. Generally, any redemption of ART Common
Shares or ART Preferred Shares will be treated as a sale or exchange thereof if
the redemption (a) results in a complete termination of the holder's stock
interest in ART, (b) is substantially disproportionate with respect to the
holder or (c) is not essentially equivalent to a dividend with respect to the
holder, in each case within the meaning of Section 302(b) of the Code. In
determining whether any of these tests has been met, stock which is
constructively owned by reason of Section 318 of the Code (pursuant to which a
holder will be deemed to own stock owned (actually or constructively) by certain
related individuals and entities and to own stock subject to option), as well as
stock actually owned is taken into account. A distribution will generally be
treated as substantially disproportionate if the percentage of the voting stock
of ART which is owned immediately after the redemption is less than 80% of the
percentage of the voting stock of ART which is owned immediately before the
redemption and if the percentage of the ART Common Shares of ART which is owned
by such person is also so reduced. A distribution will be not essentially
equivalent to a dividend if it results in a "meaningful reduction" in a holder's
stock interest in ART. The IRS has stated in published rulings that a redemption
that results in a reduction in the actual and constructive stock interest of a
minority stockholder, whose relative actual and constructive stock interest is
minimal and who exercises no control over corporate affairs, will generally be
treated as not essentially equivalent to a dividend. If a redemption does not
satisfy any of the Section 302 tests, the amount received in the redemption will
be treated as a distribution which is made by ART with respect to the stock so
redeemed which is taxable as provided in "Dividend Payments" above, and the
adjusted tax basis of the stock so redeemed will be transferred to any retained
stock interest in ART.
The amount of gain or loss which is recognized upon the sale or exchange
(including a redemption which is treated as a sale or exchange) of ART Common
Shares or ART Preferred Shares is the difference between the amount realized and
the adjusted basis in the ART Common Shares or ART Preferred Shares so sold or
exchanged. Reductions in adjusted basis which are the result of distributions as
discussed above will increase the amount of gain recognized or reduce the amount
of loss recognized upon the sale thereof. Any gain or loss so recognized upon
such a disposition of ART Common Shares or ART Preferred Shares will be a
capital gain or loss if such stock is a capital asset.
ART PREFERRED SHARES; Conversion into ART Common Shares. No gain or loss
will be recognized upon the conversion of ART Preferred Shares into shares of
ART Common Shares except as noted below. As discussed below, special rules apply
to Foreign Holders. Any cash which is received in lieu of a fractional share
upon any such conversion will be treated under the current advance ruling policy
of the IRS as an amount received in exchange of the fractional share. Moreover,
if dividends on the ART Preferred Stock are in arrears at the time of conversion
into ART Common Shares, a portion of the ART Common Shares so received the value
of which is less than or equal to the amount of such arrearage may be includible
in income as a dividend (to the extent of ART's current or accumulated earnings
and profits).
The adjusted tax basis of the shares of ART Common Shares received upon
such a conversion (excluding any shares the receipt of which was taxable because
of dividend arrearages) will be equal to the adjusted tax basis of the ART
Preferred Shares converted (exclusive of any tax basis allocated to a fractional
share in lieu of which cash was received). The holding period of the shares of
ART Common Shares which are held with a carryover basis will include the holding
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period of the ART Preferred Shares converted, if the ART Preferred Shares were
held as a capital asset at the time of the exchange. The holding period of any
shares the receipt of which was taxable because of dividend arrearages will
begin the day after the receipt thereof.
Redemption Premium. Under Section 305 of the Code and applicable
regulations, any excess of the redemption price of the ART Preferred Shares over
the issue price thereof is includible in income as a dividend (to the extent of
ART's current or accumulated earnings and profits) on a constant yield to
maturity base under current regulations (in accordance with the economic accrual
principles of Section 1272 of the Code under regulations which are to be
prescribed) even though no cash is received in respect thereof units if (i)
based on all of the facts and circumstances as of the issue date, the redemption
pursuant to ART's call right is more likely than not to occur and (ii) the
premium is not solely in the nature of a penalty for premature redemption.
Although the issue is not free from doubt, ART intends to take the position that
no such accrual will be required. A redemption premium for the ART Preferred
Shares is reasonable if it is in the nature of a penalty for premature
redemption and if it does not exceed the amount which ART would be required to
pay for such redemption right under market conditions existing at the time of
issuance of the ART Preferred Shares. ART believes that the redemption premium
on the ART Preferred Shares satisfies this standard.
Adjustment of Conversion Price. Under applicable Treasury regulations
certain adjustments to the conversion price of convertible preferred stock, such
as adjustments to reflect taxable distributions of cash or property on the
related common stock, will be treated as a constructive distribution of stock
and will be treated as a dividend to the holders of the preferred stock to the
extent of the current or accumulated earnings and profits of the corporation.
The formula for the conversion price of the ART Preferred Stock is not adjusted
to reflect such distributions, however, the actual conversion price may be
adjusted through changes in the value of the ART Common Stock as a result of
such distributions. Adjustments to reflect nontaxable stock splits or
distributions to the holders of ART Common Shares of stock, stock warrants or
stock rights will, however, generally not be so treated. The failure to adjust
fully the conversion price for the ART Preferred Shares to reflect distributions
of stock, stock warrants or stock rights with respect to the ART Common Shares
may result in a taxable dividend to holders of ART Common Shares or ART
Preferred Shares.
SPECIAL TAX RULES APPLICABLE TO FOREIGN HOLDERS. As used herein in the
discussion of U.S. federal income tax matters, a "Foreign Holder" is a person
who, for United States federal income tax purposes, is a foreign corporation, a
nonresident alien individual, a foreign estate, a foreign trust, or a foreign
partnership. Foreign Holders seeking benefits under applicable tax treaties or
an exemption from United States withholding tax for "effectively connected
income," as described below, will be required to comply with certain
certification and other requirements in order to establish their entitlement to
such benefits or exemption. Additional or different rules, not discussed herein,
may apply in light of the circumstances of a particular Foreign Holder.
Accordingly, each prospective Foreign Holder should discuss these matters with
its own tax advisors.
Dividends. Dividends on the ART Preferred Shares or the ART Common Shares
which are paid to a Foreign Holder and which are not effectively connected with
the conduct of a trade or business in the United States will be subject to
United States withholding tax at a rate of 30% (or such lower rate as may be
prescribed by an applicable tax treaty). If the dividends on the ART Preferred
Shares or the ART Common Shares are effectively connected with the conduct of a
trade or business carried on in the United States, such dividends will be
subject to tax at the rates and in the manner applicable to United States
persons and may also be subject to an additional "branch profits tax" at a 30%
rate (or such lower rate as may be specified by an applicable income tax
treaty).
Gain on Disposition of ART Preferred Shares or ART Common Shares. Foreign
Holders will not be subject to U.S. federal income tax on gain realized on a
disposition of the ART Preferred Shares or the ART Common Shares unless (a) the
gain is effectively connected with the conduct of a trade or business in the
United States in which case such gain will be subject to tax at the rates and in
the manner applicable to United States persons (the branch profits tax described
above may also apply if the holder is a foreign corporation), (b) in the case of
an individual Foreign Holder, such holder is present in the United States for at
least 183 days in the taxable year of the disposition and either the income from
the disposition is attributable to an office or other fixed place of business
maintained by the holder in the United States or the holder has a tax home, as
defined in Section 911(d)(3) of the Code, in the United States or (c) the gain
is subject to tax under Section 897 of the Code.
Gain realized by a Foreign Holder on a disposition of ART Preferred Shares
(including a disposition by conversion or redemption) will not be subject to tax
under Section 897 of the Code if the Foreign Holder, after taking into account
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certain constructive ownership rules, does not own and has not owned within the
five-year period ending on the date of the disposition more than five percent of
the outstanding ART Preferred Shares assuming that the ART Preferred Shares are
regularly traded on an established securities market, within the meaning of
Section 897(c)(3) of the Code. Similarly, gain realized by a Foreign Holder on a
disposition of ART Common Shares will not be subject to tax under Section 897 of
the Code if the Foreign Holder after taking into account certain constructive
ownership rules has not owned within the five year period ending on the date of
the disposition more than five percent of the outstanding ART Common Shares
assuming that the ART Common Shares is regularly traded on an established
securities market, within the meaning of Section 897 of the Code. If the
exemption which is discussed in the two preceding sentences is not available,
then a Foreign Holder of ART Preferred Shares or of ART Common Shares should
discuss the effect of Section 897 of the Code with its tax advisors.
United States Federal Income Tax. Unless otherwise provided in an
applicable estate tax treaty, shares of ART Preferred Shares and ART Common
Shares will be considered property situated in the United States for federal
estate tax purposes and will be subject to U.S. federal estate tax.
BACK-UP WITHHOLDING. A noncorporate holder of ART Preferred Shares or ART
Common Shares may be subject to backup withholding at the rate of 31 percent
with respect to dividends paid on ART Preferred Shares or ART Common Shares or
the proceeds of a sale, exchange or redemption thereof if (i) the payee fails to
furnish a taxpayer identification number ("TIN") to the payor, (ii) the IRS
notifies the payor that the TIN furnished by the payee is incorrect, (iii) there
has been a notified payee under reporting with respect to interest, dividends or
original issue discount described in Section 3406(c) of the Code, or (iv) there
has been a failure of the payee to certify under penalty of perjury that the
payee is not subject to back-up withholding.
The payment of the proceeds of a sale of ART Preferred Shares or ART Common
Shares to or through the foreign office of a broker generally will not be
subject to back-up withholding. However, information reporting requirements will
apply to a payment of proceeds from the sale of shares of ART Preferred Shares
or ART Common Shares through a foreign office of a broker that is a United
States person or of certain foreign brokers unless the broker has documentary
evidence in its files that the owner is a non-United States holder and the
broker has no actual knowledge to the contrary.
Any amounts withheld under the back-up withholding rules from a payment to
a holder will be allowed as a refund or a credit against the holder's U.S.
federal income tax liability, provided that the required information is
furnished to the IRS.
EFFECT OF MERGER ON MARKET FOR EQK SHARES; REGISTRATION UNDER THE EXCHANGE ACT
The cumulative effect of the sale of the Center, the resulting distribution
of the net liquid assets to the EQK Shareholders, the Merger, the Block Purchase
and the Standstill Agreements will reduce the number of EQK Shareholders and the
number of EQK Shares that might otherwise trade publicly and, thus, the
liquidity and market value of the EQK Shares are likely to be adversely
affected. As a result of the distribution to EQK Shareholders and the
acquisition of Oak Tree Village for a note in the full amount of the purchase
price, EQK is not expected to have any net worth after the Merger.
Prior to May 4, 1998, the EQK Shares were listed and traded on the NYSE. On
April 23, 1998, the NYSE announced that trading of the EQK Shares would be
suspended prior to the opening of the NYSE on May 4, 1998, as EQK had fallen
below the NYSE's continued listing criteria for net tangible assets available to
common stock (less than $12 million) and 3-year average net income (less than
$600,000). The EQK Shares are currently traded in the over-the-counter market.
The extent of the public market for such EQK Shares and the availability of
price quotations in respect thereof from time to time depends upon such factors
as the number of EQK Shareholders, the interest in maintaining a market in the
EQK Shares on the part of securities firms, the trading value of the EQK Shares,
the possible termination of registration of EQK Shares under the Exchange Act,
as described below, and other factors.
The EQK Shares are currently registered under the Exchange Act. Such
registration may be terminated by EQK upon application to the Commission if the
outstanding EQK Shares are not listed on a national securities exchange and
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if there are fewer than 300 holders of record of EQK Shares. As of June 30,
1998, EQK had 234 holders of record. Although legally permissible, pursuant to
the Merger Agreement, EQK will agree not to affirmatively deregister the EQK
Shares. Termination of registration of the EQK Shares under the Exchange Act
would reduce the information required to be furnished by EQK to its shareholders
and to the Commission and would make certain provisions of the Exchange Act,
such as the short-swing profit recovery provisions of Section 16(b) and the
requirement of furnishing a proxy statement in connection with shareholders'
meetings pursuant to Section 14(a) and the related requirement of furnishing an
annual report to shareholders, no longer applicable with respect to the EQK
Shares. Furthermore, the ability of "affiliates" of EQK and persons holding
"restricted securities" of EQK to dispose of such securities pursuant to Rules
144 or 145 under the Securities Act may be impaired or eliminated if the EQK
Shares were deregistered under the Act.
FEES AND EXPENSES IN CONNECTION WITH THE MERGER
ART has retained Shareholder Communications Corporation to act as Proxy
Solicitor in connection with the Merger. The Proxy Solicitor may contact EQK
Shareholders by mail, telephone, telex, telegraph and personal interviews and
may request brokers, dealers and other nominee stockholders to forward the
Merger materials to beneficial owners of EQK Shares. The Proxy Solicitor will
receive a fee estimated not to exceed $9,500 for such services, plus
reimbursement of out-of-pocket expenses, and ART will indemnify the Proxy
Solicitor against certain liabilities and expenses in connection with the
Merger, including liabilities under federal securities laws.
ART will pay the Merger Agent and the Dealer Manager, an affiliate of ART
and BCM, reasonable and customary compensation for their respective services in
connection with the Merger, plus reimbursement for their out-of-pocket expenses,
and will indemnify each of them against certain liabilities and expenses in
connection therewith, including liabilities under the federal securities laws.
ART will not pay any fees or commissions to any broker or dealer or other person
(other than the Proxy Solicitor and the Dealer Manager) for soliciting proxies
in connection with the Merger. Brokers, dealers, commercial banks and trust
companies will be reimbursed by ART for customary mailing and handling expenses
incurred by them in forwarding material to their customers.
ART and EQK have entered into an expense sharing agreement (the "Expense
Sharing Agreement") whereby each of ART and EQK will share the costs and
expenses associated with the Merger. Under the terms of the Expense Sharing
Agreement, if EQK and ART enter into the Merger Agreement and proceed in good
faith to complete the Merger but are unsuccessful in such effort by reason of an
inadequate EQK Shareholder response to this Prospectus/Proxy Statement or
otherwise, EQK's liability under the Expense Sharing Agreement shall be limited
to the lesser of 50% of the actual transaction costs or $100,000, and ART shall
be responsible for all additional transaction costs. In addition, if the Merger
is consummated in accordance with the terms of the Merger Agreement, EQK's
liability shall be limited to the lesser of 50% of the actual transaction costs
or $150,000 and ART shall be responsible for all additional transaction costs.
ACCOUNTING TREATMENT
Since ART may be considered to have the ability to exercise significant
influence over the operating policies of EQK upon consummation of the Merger,
ART will account for its investment in EQK using the equity method.
STOCK EXCHANGE LISTING
Application will be made to list the ART Preferred Shares to be issued
pursuant to the Merger on the NYSE. See "Risk Factors -- ART Preferred Shares --
Application for the Listing and Trading of ART Preferred Shares and Possible
Subsequent Delisting."
EQK LITIGATION
Each of EQK, the EQK Trustees and the Advisor have been named as defendants
in a purported class action complaint filed in Massachusetts state court which
seeks to enjoin the Merger. The complaint also seeks other relief including
unspecified damages. EQK believes the action to be without merit and intends to
vigorously defend the action.
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THE DECLARATION AMENDMENT PROPOSAL
The following is a brief summary of proposed amendments to the Declaration
of Trust that will be reflected in the Amended Declaration of Trust. All of the
amendments contemplated by the Amended Declaration of Trust are subject to the
Requisite Shareholder Approval of the Merger-Related Proposals. The full text of
the Amended Declaration of Trust is attached hereto as Appendix D.
Extension of the Duration and Termination of the Trust. The Declaration of
Trust currently provides that the term of EQK will expire in March 1999. The
Amended Declaration of Trust will permit the existence of EQK to continue for an
additional 20 year period, unless sooner terminated as otherwise provided under
"The Business of EQK -- Summary of the Existing Declaration of Trust -- Duration
and Termination of the Trust".
Removal of Limitation of Number of Authorized EQK Shares. The Declaration
of Trust currently provides that the total number of authorized EQK Shares is
10,055,555. There will be no limitation on the number of authorized EQK Shares
under the Amended Declaration of Trust.
Reduction of the Number of EQK Shareholders Required to Vote on Certain
Matters. The Declaration of Trust currently provides that each of the following
amendments to the Declaration of Trust shall require the affirmative vote of the
holders of three-quarters of the outstanding EQK Shares: (i) increases in the
number of authorized EQK Shares, (ii) amendments to the investment policies of
EQK, (iii) any plan for the termination of EQK which contemplates the
distribution to the EQK Shareholders of securities or other property-in-kind
(other than the right promptly to receive cash), and (iv) any amendments which
would reduce the percentage vote required to approve any amendments to the
amendment provisions of the Declaration of Trust. The Amended Declaration of
Trust will remove restrictions on the number of authorized EQK Shares and will
allow the Trustees to amend EQK's investment policies without the approval of
the EQK Shareholders. In addition, the Amended Declaration of Trust will reduce
the number of affirmative votes of EQK Shareholders required to amend the
Amended Declaration of Trust in all other instances to a majority. See "The
Business of EQK -- Summary of the Existing Declaration of Trust -- Duration and
Termination of the Trust."
Removal of Prohibitions and Restrictions from Certain Activities and
Investments. The Declaration of Trust currently provides that EQK may acquire
additional real properties, but only under very limited circumstances. The
Amended Declaration of Trust will remove all restrictions on EQK's ability to
acquire additional real or personal property and other debt and equity
investments, although it is not currently intended that any such acquisitions or
additional investments will be made in the foreseeable future. See "The Business
of EQK -- Summary of the Existing Declaration of Trust -- Prohibited Activities
and Investments."
Removal of Prohibitions on the Issuance of EQK Shares and other Securities.
Under the Declaration of Trust, EQK is currently prohibited from issuing any
additional EQK Shares or any rights, warrants or options to subscribe to,
purchase or acquire any EQK Shares. The Amended Declaration of Trust will allow
EQK to issue additional EQK Shares and other types of securities from time to
time, including securities with preferential rights to the EQK Shares, provided
that any issuance of additional EQK Shares will require the affirmative vote of
holders of not less than a majority of the then outstanding EQK Shares entitled
to vote thereon.
Removal of Borrowing Restrictions. The Declaration of Trust currently
restricts the aggregate amount of secured or unsecured borrowings that EQK may
incur to 75% of EQK's total assets (other than intangibles). The Amended
Declaration of Trust will eliminate such borrowing restrictions.
Revision of Trustee Provisions. The Declaration of Trust currently provides
that the number of Trustees must be no fewer than five and no more than twelve
and that a majority of the Trustees shall be unaffiliated with EQK and its
affiliates. The Amended Declaration of Trust will reduce the maximum number of
Trustees to seven, with at least one trustee being unaffiliated with EQK and/or
its affiliates. See "The Business of EQK -- Summary of the Existing Declaration
of Trust -- Trustees."
Ownership Limit. The Declaration of Trust currently contains provisions
which allow the Trustees to restrict ownership of EQK Shares in order to
maintain EQK's qualification as a REIT under the Code. The Amended
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Declaration of Trust will specifically prohibit ownership of more than 4.9% of
the outstanding EQK Shares by any single shareholder, other than ART and duPont.
Under the Amended Declaration of Trust, the EQK Board may exempt a proposed
transferee from this restriction upon receipt of a ruling from the Internal
Revenue Service, an opinion of counsel or other evidence satisfactory to the EQK
Board that ownership of EQK by a proposed transferee will not adversely affect
EQK's qualification as a REIT under the Code, and upon such other conditions as
the EQK Board may direct.
Change the Name of EQK. The Amended Declaration of Trust will change the
name of EQK from "EQK Realty Investors I" to "ART Realty Investors I" to
eliminate any reference to EQK or LLPM or any of their affiliates.
Reduction of the Number of EQK Trustees Required to Vote on Certain
Matters. The Declaration of Trust currently requires the approval of two-thirds
of the EQK Board to amend the Declaration of Trust, without the vote or consent
of EQK Shareholders, in order to conform the Declaration of Trust to the
requirements of (a) the REIT provisions of the Code, (b) other applicable
Federal laws or regulations or (c) any state securities or "blue sky" laws or
requirements of administrative agencies thereunder in connection with the
initial public offering of EQK Shares. The Amended Declaration of Trust will
require only a majority vote of the New EQK Board (as defined herein under "The
Board Election Proposal") to approve amendments to the Declaration of Trust with
respect to the aforementioned conformity issues. The Declaration of Trust will
also be amended to require only a majority vote of the New EQK Board, without
EQK Shareholder approval, to change the investment policies of EQK from time to
time, in keeping with the other provisions of the Declaration of Trust. See "The
Business of EQK -- Summary of the Existing Declaration of Trust Amendment of
Declaration of Trust; Merger."
Change in Organizational Structure of EQK. The Amended Declaration of Trust
will provide that, upon a vote of a majority of the New EQK Board (as defined
herein under "The Board Election Proposal"), and with the affirmative vote of
the holders of a majority of the outstanding EQK Shares, the New EQK Board shall
have the power to cause to be organized or to assist in organizing a corporation
or corporations under the laws of any jurisdiction or any other trust,
partnership, association, or other organization to take over the trust estate of
EQK or any part or parts thereof or to carry on any business in which EQK shall
directly or indirectly have any interest, and to sell, convey and transfer the
trust estate of EQK or any part or parts thereof to any such corporation, trust,
partnership, association, or organization in exchange for the EQK Shares or
securities issued by EQK or otherwise, and to lend money to, subscribe for the
EQK Shares or securities issued by EQK, and enter into any contracts with any
such corporation, trust, partnership, association, or organization, or any
corporation, trust partnership, association, or organization in which EQK holds
or is about to acquire shares or any other interest. The New EQK Board may also
cause a merger or consolidation between EQK or any successor thereto and any
such corporation if and to the extent permitted by law, provided that under the
law then in effect, the federal income tax benefits available to qualified real
estate investment trusts and their shareholders, or substantially similar
benefits, are also available to such corporation, trust, partnership,
association, or organization and its stockholders or members, and provided that
the resulting investment would be substantially equal in quality and
substantially the same in type as an investment in the EQK Shares.
The EQK Board believes that the Amended Declaration of Trust is fair to,
and in the best interests of, EQK and the holders of EQK Shares. By unanimous
vote, the EQK Board approved the Declaration Amendment Proposal and unanimously
recommends that the EQK Shareholders approve the Declaration Amendment Proposal.
THE NEW ADVISORY AGREEMENT PROPOSAL
EQK has entered into an agreement with LLPM, a wholly owned subsidiary of
ERE, to act as its "Advisor." The Advisor makes recommendations to EQK
concerning investments, administration and day-to-day operations.
Under the terms of the Advisory Agreement, the Advisor receives a
management fee that is based upon the average daily per share price of EQK's
shares plus the average daily balance of outstanding mortgage indebtedness. Such
fee is calculated using a factor of 42.5 basis points (0.425%) and generally has
been payable monthly without subordination. Commencing with the December 1995
extension of debt and continuing with the December 1996 debt extension,
Prudential requested, and the Advisor agreed to, a partial deferral of payment
of its fee. Whereas the fee continues to be computed as described above,
payments to the Advisor are limited to $37,500 per quarter. Accrued but unpaid
amounts will be eligible for payment upon the repayment of the Mortgage Note (as
defined in "The Business of EQK -- General"). For the years ended December 31,
1997, 1996, and 1995, portfolio management fees were $242,000,
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$250,000, and $403,000, respectively. The balance of deferred advisory fees at
December 31, 1997 was $217,000. The deferred advisory fees will be paid to the
Advisor upon the consummation of the sale of the Center.
Upon consummation of the Merger and subject to Requisite Shareholder
Approval of the Merger-Related Proposals, LLPM will terminate its rights and
duties as Advisor under the Advisory Agreement and BCM, an affiliate of and
advisor to ART, will become the New Advisor to EQK under the New Advisory
Agreement.
The duties of the New Advisor under the New Advisory Agreement will
include, among other things, locating, investigating, evaluating and
recommending real estate and mortgage note investment and sales opportunities,
as well as financing and refinancing sources for EQK. The New Advisor will also
serve as a consultant to EQK in connection with EQK's business plan and
investment policy decisions to be made by the New EQK Board.
The New Advisory Agreement provides that the New Advisor shall receive base
compensation at the rate of 0.0625% per month (0.75% on an annualized basis) of
EQK's gross asset value in the form of a gross asset fee. In addition to base
compensation, the New Advisory Agreement provides that the New Advisor, or an
affiliate of the New Advisor, shall be entitled to receive an acquisition fee
for locating, leasing or purchasing real estate for the Company; a net income
fee for the investment and management of EQK's assets; a loan arrangement fee;
an incentive fee equal to 10% of net income for the year in excess of a 10%
return on shareholders' equity, and 10% of the excess of net capital gains over
net capital losses, if any; and a mortgage placement fee, on mortgage loans
originated or purchased. The New Advisory Agreement further provides that the
New Advisor shall bear the cost of certain expenses of its employees not
directly identifiable to EQK's assets, liabilities, operations, business or
financial affairs; and miscellaneous administrative expenses relating to the
performance by the New Advisor of its duties under the New Advisory Agreement.
If and to the extent that EQK shall request the New Advisor, or any
director, officer, partner or employee of the New Advisor, to render services to
EQK other than those required to be rendered by the New Advisor under the New
Advisory Agreement, such additional services, if performed, will be compensated
separately on terms agreed upon between such party and EQK from time to time.
The New Advisory Agreement automatically renews from year to year unless
terminated in accordance with its terms.
The EQK Board believes that the New Advisory Agreement is fair to, and in
the best interests of, EQK and the holders of EQK Shares. By unanimous vote, the
EQK Board approved the New Advisory Agreement Proposal and unanimously recommend
that the EQK Shareholders approve the New Advisory Agreement Proposal.
THE BOARD ELECTION PROPOSAL
At the EQK Annual Meeting, the EQK Shareholders, voting together as a
class, will be asked to consider and vote upon the members of the EQK Board
pursuant to the Board Election Proposal. The Board Election Proposal will
require the affirmative vote of EQK Shareholders representing a majority of the
total votes authorized to be cast by EQK Shares then outstanding which are
present at the EQK Annual Meeting in person or by proxy and entitled to vote
thereon.
The current members of the EQK Board are described below. The term of
office of each member of the EQK Board expires at the 1998 annual meeting of the
EQK Board or when the respective successor is elected and qualifies. Upon
majority approval of the Board Election Proposal by the EQK Shareholders, the
current members of the EQK Board shall be re-elected and shall serve until the
earlier of (i) the 1999 annual meeting of EQK, or (ii) the appointment of the
New EQK Board.
Sylvan M. Cohen, age 82, has been a Trustee since 1988. Mr. Cohen has
been Chairman, Chief Executive Officer, and Trustee of Pennsylvania Real
Estate Investment Trust, an American Stock Exchange-listed real estate
investment trust, since 1994 and was President and Trustee since its
inception in 1960. Mr. Cohen has been Of Counsel to 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 FPA
Corporation, an American Stock Exchange-listed real estate development
company. Mr. Cohen was a managing trustee of Arbor Property Trust, a
NYSE-listed real estate investment trust and
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successor in interest to EQK Green Acres, L.P., until 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 75, 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 is currently a director of the Hudson River Trust and the New York
State Electric & Gas Corp., and was a managing trustee of Arbor Property
Trust until December 1997. He is an independent partner of Equitable
Capital and Equitable Capital Retirement Fund.
George R. Peacock, age 73, 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 had retired from ERE, a
wholly-owned subsidiary of 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 ERE and was a managing trustee of Arbor
Property Trust until December 1997.
Phillip E. Stephens, age 49, has been a Trustee since 1990. Mr.
Stephens is currently a consultant to ERE and Mr. Stephens was Chairman and
Chief Executive Officer of Compass, a subsidiary of ERE, 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 Compass
from January 1990 to December 1991. He has also served as President of
LLPM, EQK's advisor and a wholly-owned subsidiary of ERE, 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 LLPM. Prior to
that date and since its inception in September 1983, he was Senior Vice
President and subsequently President of EQK Partners. Mr. Stephens was also
a managing trustee of Arbor Property Trust until December 1997.
Robert C. Robb, Jr., age 51, has been a Trustee since 1991. Mr. Robb
has been President of and partner in the management and financial
consulting firm of Lewis, Eckert, Robb & Company since 1981. Mr. Robb is
currently a director of PNC Bank, N.A., Pittsburgh, Pennsylvania, Tamaqua
Cable Products Company, and Brynwood Partners, and is a former director of
Brinks, Inc. of Darien, Connecticut.
Robert Welanetz, age 45, currently serves as the Chief Executive and
Executive Vice President of Lend Lease Retail (f/k/a "Compass"). He is
responsible for strategic operations and day-to-day planning. Mr. Welanetz
also serves on Lend Lease's Executive and Senior Management committees. He
previously served as President of Yarmouth Group Property Management, Inc.
Prior to joining Yarmouth in 1991, Mr. Welanetz served as the Vice
President of Leasing and Operations for Pan Pacific Development, a Canadian
firm specializing in community center, power center and regional center
development and acquisitions. Prior to joining Pan Pacific Development, Mr.
Welanetz had twelve years of experience with The Hahn Company as an officer
for that company's portfolio. He was responsible for partnership relations
and fee management activities.
Subject to Requisite Shareholder Approval of the Merger-Related Proposals,
upon completion of the Merger, pursuant to the Merger Agreement, all of the
members of the then current EQK Board will resign and the related vacancies
shall be filled with persons designated by ART (the "ART Designated Trustees"),
at least one of whom shall be unaffiliated with ART or its affiliates (the
"Independent Trustee"). The ART Designated Trustees shall constitute the new
board of EQK (the "New EQK Board"). ART currently intends to designate Thomas A.
Holland, A. Cal Rossi, Jr., Cooper B. Stuart, Karl L. Blaha and Al Gonzalez as
the ART Designated Trustees. To the extent that the current ART Designated
Trustees are unwilling or unable to continue to serve as Trustees of EQK, their
successors will generally be nominated by the remaining ART Designated Trustees.
See "The Declaration Amendment Proposal -- Revision of Trustee Provisions".
Set forth below are descriptions of the members of the proposed New EQK
Board.
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Thomas A. Holland, age 55, has served ART as Executive Vice President
and Chief Financial Officer since August 1995, and Senior Vice President
and Chief Accounting Officer from July 1990 to August 1995. Mr. Holland has
also served BCM, Syntek Asset Management, Inc. ("SAMI"), CMET, IORI and TCI
as Executive Vice President and Chief Financial Officer since August 1995
and Senior Vice President and Chief Accounting Officer from July 1990 to
August 1995. He has been Secretary of CMET, IORI and TCI since February
1997. Mr. Holland was Senior Vice President and Chief Accounting Officer of
National Income Realty Trust ("NIRT") and Vinland Property Trust ("VPT")
from July 1990 to February 1994. His other previous positions include Vice
President and Controller from December 1986 to June 1990 of Southmark, Vice
President-Finance from January 1986 to December 1986 of Diamond Shamrock
Chemical Company, Assistant Controller from May 1976 to January 1986 of
Maxus Energy Corporation (formerly Diamond Shamrock Corporation), and
Trustee from August 1989 to June 1990 of Arlington Realty Investors. Mr.
Holland has been a Certified Public Accountant since 1970.
A. Cal Rossi, Jr., age 60, currently serves as Executive Vice
President and Director of Capital Markets at BCM. He joined BCM as a
permanent employee on March 1, 1996. Mr. Rossi is the President of the
Rossi Group of Companies and has created world-class hotels and resorts
throughout the United States.
Cooper B. Stuart, age 46, currently serves as Executive Vice
President at BCM, where he commenced employment in early 1994. Mr. Stuart
currently works in the Capital Markets area of BCM where he is principally
involved in both debt and equity transactions including public offerings.
Mr. Stuart was also Managing Director of InveQuest Realty Corporation. He
was also President of InveQuest Ventures, Inc., InveQuest Incorporated and
its subsidiary, InveQuest Properties, Inc., and a General Partner of
numerous real estate syndications involving land, office and apartment
development. Mr. Stuart served as Senior Vice President of First Financial
Equities Corporation from 1988 to 1989. Mr. Stuart is a licensed real
estate broker and worked for Moore Myers & Associates from 1980 to 1981. He
was employed by Xerox Corporation as a sales executive in the New York and
Connecticut areas from 1975 to 1979.
Karl L. Blaha, age 50 has served as a director of ART since June
1996. Mr. Blaha has served as President of ART since October 1993 and as
Executive Vice President and Director of Commercial Management of ART from
April 1992 to October 1993. Since July 1997, Mr. Blaha has served as
Executive Vice President - Commercial Asset Management of BCM, TCI, CMET,
IORI and SAMI, which is the general partner of NRLP and NOLP, and from
April 1992 to August 1995, Mr. Blaha served as an Executive Vice President
and Director of Commercial Management of BCM, TCI, CMET, IORI and SAMI.
From October 1992 to July 1997, Mr. Blaha served as Executive Vice
President of Carmel Realty, Inc., a company owned by First Equity
Properties, Inc. ("First Equity"), which is 50% owned by BCM. Since 1996,
Mr. Blaha has served as a Director and President of First Equity. From
April 1992 to February 1994, Mr. Blaha served as Executive Vice President
and Director of Commercial Management of NIRT and VPT. From August 1988 to
March 1992, Mr. Blaha was a Partner and Director of the National Real
Estate Operations of First Winthrop Corporation. From April 1984 to August
1988, Mr. Blaha served as a Corporate Vice President of Southmark
Corporation and from March 1986 to August 1988, was the President of
Southmark Commercial Management.
Al Gonzalez, age 62, has been a director of ART since 1989 and has
served as President of AGE Refining, Inc. , a petroleum refining and
marketing firm, since March 1991. From January 1988 to March 1991, Mr.
Gonzalez served as President of Moody-Day Inc., a company that sells and
leases construction equipment and supplies; owner and President of Gulf-Tex
Construction Company; and owner and lessor of two restaurant sites in
Dallas, Texas. Mr. Gonzalez has served as a director of Avacelle, Inc.
("Avacelle") since April of 1990. From 1988 to 1992, Mr. Gonzalez served as
a director of Greenbriar Corp. From 1987 to 1989, Mr. Gonzalez served as a
member of the Dallas City Council. On March 18, 1992, Avacelle filed a
voluntary petition under Chapter 11 of the United States Bankruptcy Code
and an Order confirming its Plan of Reorganization was entered October 18,
1993 by the United States Bankruptcy Court, Northern Division of Oklahoma.
On April 21, 1997, Avacelle again filed a voluntary petition under Chapter
11 of the United States Bankruptcy Code.
Pursuant to the Amended Declaration of Trust, the unanimous consent of a
committee of the New EQK Board consisting of the Independent Trustee and at
lease two other ART Designated Trustees shall be required to approve (i)
transactions between EQK and ART and any of their respective affiliates and
other related persons (other than
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<PAGE> 66
transactions between related parties pursuant to the New Advisory Agreement),
and (ii) any amendments to EQK's organizational documents. The New EQK Board
will not review the New Advisory Agreement because the New Advisory Agreement is
one of the three Merger-Related Proposals and therefore voted on before the
election of the New EQK Board under the Board Election Proposal.
DESCRIPTION OF ART
ART, a Georgia corporation, is the successor to a District of Columbia
business trust organized pursuant to a declaration of trust dated July 14, 1961.
The business trust merged into ART on June 24, 1988. ART invests in equity
interests in real estate (including equity securities of real estate-related
entities), leases, joint venture development projects and partnerships and
finances real estate and real estate activities through investments in mortgage
loans. ART has invested in private and open market purchases in the equity
securities of CMET, IORI, TCI and NRLP.
The ART Board has broad authority under ART's governing documents to make
all types of real estate investments, including mortgage loans and equity real
estate investments, as well as investments in the securities of other entities,
whether or not such entities are engaged in real estate-related activities.
Although the ART Board is directly responsible for managing the affairs of
ART and for setting the policies which guide it, the day-to-day operations of
ART are performed by BCM, an affiliate of and advisor to ART. BCM is a
contractual advisor under the supervision of the ART Board. The duties of BCM
include, among other things, locating, investigating, evaluating and
recommending real estate and mortgage note investment and sales opportunities,
as well as financing and refinancing sources for ART. BCM also serves as a
consultant in connection with ART's business plan and investment policy
decisions made by the ART Board.
BCM, an affiliate of and advisor to ART, is a company owned by a trust for
the benefit of the children of Gene E. Phillips, the Chairman of the Board and a
Director of ART until November 16, 1992. Gene E. Phillips served as a director
of BCM until December 22, 1989 and as Chief Executive Officer of BCM until
September 1, 1992. Gene E. Phillips currently serves as a representative of the
trust that owns BCM for the benefit of his children and, in such capacity, Gene
E. Phillips has substantial contact with the management of BCM and input with
respect to BCM's performance of advisory services to ART. Ryan T. Phillips, the
son of Gene E. Phillips and a Director of ART until June 4, 1996, is also a
director of BCM and a trustee of the trust which owns BCM for the benefit of the
children of Gene E. Phillips. As of August 14, 1998, BCM owned 5,607,526 ART
Common Shares, representing approximately 52.2% of the ART Common Shares then
outstanding. BCM has been providing advisory services to ART since February 6,
1989. BCM also serves as advisor to CMET, IORI and TCI. Karl L. Blaha, Randall
M. Paulson, Bruce A. Endendyk and Thomas A. Holland, executive officers of ART,
are also executive officers of CMET, IORI and TCI. Karl L. Blaha also serves as
a Director of ART. Oscar W. Cashwell, a Director of ART, served as Executive
Vice President of BCM until January 10, 1997. Randall M. Paulson, Executive Vice
President of ART, serves as President and sole director of SAMI, the managing
general partner of Syntek Asset Management, L.P. ("SAMLP"), the general partner
of NRLP and National Operating, L.P. ("NOLP"), the operating partnership of
NRLP. Gene E. Phillips is also a general partner of SAMLP and served as a
director and Chief Executive Officer of SAMI until May 15, 1996. SAMI is a
company owned by BCM. BCM performs certain administrative functions for NRLP and
NOLP on a cost reimbursement basis.
Gene E. Phillips is the former chairman of Southmark, a real estate
syndicator and parent of San Jacinto. As a result of a deadlock on Southmark's
Board of Directors, Mr. Phillips, among others, reached an agreement whereby he
resigned his positions with Southmark and certain of Southmark's subsidiaries
and affiliates in January 1989. Southmark filed a voluntary petition in
bankruptcy under Chapter 11 of the United States Bankruptcy Code in July 1989.
In November 1990, San Jacinto was placed under conservatorship of the RTC by
federal banking authorities. In December 1990, San Jacinto was converted into a
Federal Association and placed in receivership. Mr. Phillips has been named as a
defendant in a number of lawsuits brought by the RTC and private plaintiffs in
which the allegations made against Mr. Phillips included breach of fiduciary
duty and other misconduct, which allegations were denied by Mr.
Phillips. These actions have been dismissed or settled.
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Since February 1, 1990, affiliates of BCM have provided property management
services to ART. Currently, Carmel Realty Services, Ltd. ("Carmel, Ltd.")
provides such property management services. Carmel, Ltd. subcontracts with other
entities for the provision of the property-level management services to ART at
various rates. The general partner of Carmel, Ltd. is BCM. The limited partners
of Carmel, Ltd. are (i) First Equity which is 50% owned by BCM, (ii) Gene E.
Phillips, and (iii) a trust for the benefit of the children of Gene E. Phillips.
Carmel, Ltd. subcontracts the property-level management of ART's hotels,
shopping centers, office buildings and the Denver Merchandise Mart to Carmel
Realty, Inc. ("Carmel Realty") which is a company owned by First Equity. Carmel
Realty is entitled to receive property and construction management fees and
leasing commissions in accordance with the terms of its property-level
management agreement with Carmel, Ltd.
Affiliates of BCM are also entitled to receive real estate brokerage
commissions in accordance with the terms of the advisory agreement between ART
and BCM.
ART has no employees itself, but PWSI, a wholly-owned food service
subsidiary of ART has approximately 790 employees as of June 30, 1998. Employees
of BCM render services to ART.
ART's principal offices are located at 10670 North Central Expressway,
Suite 300, Dallas, Texas 75231. ART's telephone number is (214) 692-4700.
EXECUTIVE COMPENSATION OF ART
ART itself has no employees, payroll or employee benefit plans and pays no
compensation to executive officers of ART. The Directors and executive officers
of ART who are also officers or employees of BCM are compensated by BCM. Such
affiliated Directors and executive officers of ART perform a variety of services
for BCM and the amount of their compensation is determined solely by BCM. BCM
does not allocate the cash compensation of its officers among the various
entities for which it serves as advisor.
The only direct remuneration paid by ART is to those Directors who are not
officers or employees of BCM or its affiliated companies. Until April 1, 1998,
ART compensated such Independent Directors at a rate of $5,000 per year, plus
$500 per meeting attended and $300 per Audit Committee meeting attended. During
1997, $48,673 was paid to Independent Directors in total Directors' fees for all
meetings, as follows: Dale A. Crenwelge, $15,400; Al Gonzalez, $13,100; and
Cliff Harris, $5,333. Effective April 1, 1998, ART compensates Independent
Directors at the rate of $20,000 per year, plus $300 per Audit Committee meeting
attended. In addition, the Chairman of the Audit Committee receives an annual
fee of $500.
In September 1997, the ART Board, including all of the Independent
Directors, approved ART's 1997 Stock Option Plan (the "Plan"). The Plan was
approved by the ART stockholders at ART's annual meeting on January 19, 1998.
The Plan is intended principally as an incentive for and as a means of
encouraging ownership of ART Common Stock, by eligible persons, including
certain Directors and officers of ART. Options may be granted either as
incentive stock options (which qualify for certain favorable tax treatment), or
as non-qualified stock options. Incentive stock options cannot be granted to,
among others, persons who are not employees of ART, or of any parent or
subsidiary of ART, or to persons who fail to satisfy certain criteria concerning
ownership of less than 10% of the shares of ART. The Plan is administered by the
Stock Option Committee, which currently consists of the three Independent
Directors of ART. The exercise price per share of an option will not be less
than 100% of the fair market value per share on the date of grant thereof. ART
receives no consideration for the grant of an option. As of August 25, 1998,
there were no stock options outstanding under the Plan.
THE BUSINESS OF ART
GENERAL
ART, a Georgia corporation, is the successor to a District of Columbia
business trust. ART elected to be treated as a REIT under Sections 856 through
860 of the Code, during the period July 1, 1987 through December 31, 1990.
ART allowed its REIT tax status to lapse in 1991.
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ART's primary business is investing in equity interests in real estate
(including equity securities of real estate- related entities), leases, joint
venture development projects and partnerships and financing real estate and real
estate activities through investments in mortgage loans, including first,
wraparound and junior mortgage loans. The ART Board has broad authority under
ART's governing documents to make all types of real estate investments,
including mortgage loans and equity real estate investments, as well as
investments in the securities of other entities, whether or not such entities
are engaged in real estate-related activities. ART does not have a policy
limiting the amount or percentage of assets that may be invested in any
particular property or type of property or in any geographic area. ART's
governing documents do not contain any limitation on the amount or percentage of
indebtedness ART may incur.
ART, through PWSI, also operates and franchises pizza parlors featuring
pizza delivery, carry-out and dine-in under the trademark "Me-N-Ed's" in
California and Texas. The first Me-N-Ed's pizza parlor opened in 1962. At June
30, 1998, there were 56 Me-N-Ed's pizza parlors in operation, consisting of 50
owned and 6 franchised pizza parlors, eight of the owned pizza parlors were in
Texas and the remainder in California.
ART's businesses are not seasonal. With regard to real estate investments,
ART is seeking both current income and capital appreciation. ART's plan of
operation is to continue, to the extent its liquidity permits, to make equity
investments in income producing real estate such as apartment complexes and
commercial properties or equity securities of real estate-related entities and
to continue to service and hold for investment its mortgage notes. ART also
intends to pursue higher risk, higher reward investments, such as developed,
partially developed and undeveloped land where it can obtain financing of
substantially all of a property's purchase price. ART intends to seek selected
dispositions of certain of its assets, in particular certain of its land
holdings, where the prices obtainable for such assets justify their disposition.
ART intends to continue to service and hold for investment its mortgage notes.
ART also intends to pursue its rights vigorously with respect to mortgage notes
receivable that are in default.
ART may purchase or lease properties for long-term investment, develop or
redevelop its properties or sell such properties, in whole or in part, when
circumstances warrant. ART currently participates and may continue to
participate with other entities in property ownership, through joint ventures or
other types of co-ownership. Equity investments may be subject to existing
mortgage financing and other indebtedness that have priority over ART's equity
interest.
ART may repurchase or otherwise reacquire ART Common Shares, Special Stock
(as defined under "Description of the Capital Stock of ART -- General") or other
securities and may also invest in securities of other entities engaged in real
estate activities or securities of other issuers. ART may invest in the
securities of other issuers in connection with acquisitions of indirect
interests in real estate (normally general or limited partnership interests in
special purpose partnerships owning one or more properties). ART may in the
future acquire all or substantially all of the securities or assets of real
estate investment trusts, management companies or similar entities where such
investments would be consistent with its investment policies. ART may also
invest in securities of other issuers from time to time for the purpose of
exercising control. It is not intended that ART's investments in securities will
require it to register as an "investment company" under the Investment Company
Act of 1940, as amended, and it is intended that ART would divest securities
before any such registration would be required.
The ART Board may devote available assets to particular investments or
types of investments, without restriction on the amount or percentage of ART's
assets that may be so devoted to a single investment or to any particular type
of investment, and without limit on the percentage of securities of any one
issuer that ART may acquire. ART's investment objectives and policies may be
changed at any time by the ART Board without the approval of ART's stockholders.
See "Risk Factors -- Risks Relating to ART's Business -- Changes in ART's
Policies Without Stockholder Approval."
To the extent that the ART Board determines to seek additional capital, ART
may raise such capital through additional equity offerings, debt financing or
retention of cash flow, or a combination of these methods. If the ART Board
determines to raise additional equity capital, it may, without stockholder
approval, issue additional shares of ART Common Stock or Special Stock up to the
amount of its authorized capital in any manner (and on such terms and for such
consideration) as it deems appropriate, including in exchange for property. Such
securities may be senior to the outstanding ART Common Shares and may include
additional series of Special Stock (which may be convertible into ART Common
Shares). Existing stockholders of ART will have no preemptive right to purchase
shares in any subsequent offering of securities by ART, and any such offering
could cause a dilution of a stockholder's investment in ART.
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<PAGE> 69
To the extent that the ART Board determines to obtain additional debt
financing, ART intends to do so generally through mortgages on properties. Such
mortgages may be recourse, non-recourse or cross-collateralized. ART does not
have a policy limiting the number or amount of mortgages that may be placed on
any particular property, but mortgage financing instruments usually limit
additional indebtedness on such properties. ART may also borrow funds through
bank borrowings, publicly and privately placed debt instruments, or purchase
money obligations to the sellers of properties, any of which indebtedness may be
unsecured or may be secured by any or all of the assets of ART or any existing
or new property-owning entity in which ART holds an interest and may have full
or limited recourse to all or any portion of the assets of ART, or any such
existing or new property-owning entity.
ART may seek to obtain unsecured or secured lines of credit or may
determine to issue debt securities (which may be convertible into capital stock
or be accompanied by warrants to purchase capital stock), or to sell or
securitize its receivables. The proceeds from any borrowings may be used to
finance acquisitions, to develop or redevelop properties, to refinance existing
indebtedness or for working capital or capital improvements. ART also may
determine to finance acquisitions through the exchange of properties or issuance
of additional ART Preferred Shares, ART Common Shares, Special Stock or other
securities.
ART has made and may in the future make loans to joint ventures or other
entities in which it participates. ART does not intend to engage in (i) trading,
underwriting or agency distribution or sale of securities of other issuers and
(ii) the active trade of loans and investments, other than in connection with
acquisitions of additional interests in CMET, IORI, TCI and NRLP.
Except as required under the Exchange Act, and the rules and regulations of
the NYSE, ART is not required to make annual or other reports to its
securityholders.
The specific composition of ART's real estate and mortgage notes receivable
portfolios from time to time depends largely on the judgment of ART's management
as to changing investment opportunities and the level of risk associated with
specific investments or types of investments. ART's management intends to
continue to maintain real estate and mortgage notes receivable portfolios
diversified by location and type of property. In addition to its equity
investments in real estate and mortgage notes, ART has also invested in private
and open market purchases of the equity securities of CMET, IORI, TCI and NRLP.
GEOGRAPHIC REGIONS
For purposes of its investments, ART has divided the continental United
States into the following six geographic regions.
Northeast region comprised of the states of Connecticut, Delaware, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,
Rhode Island and Vermont, and the District of Columbia. As of June 30,
1998, ART had no properties in this region.
Southeast region comprised of the states of Alabama, Florida, Georgia,
Mississippi, North Carolina, South Carolina, Tennessee and Virginia. As of
June 30, 1998, ART had 32 apartment complexes and two hotels in this
region.
Southwest region comprised of the states of Arizona, Arkansas, Louisiana,
New Mexico, Oklahoma and Texas. As of June 30, 1998, ART had two apartment
complexes and two commercial properties in this region.
Midwest region comprised of the states of Illinois, Indiana, Iowa, Kansas,
Kentucky, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio,
South Dakota, West Virginia and Wisconsin. As of June 30, 1998, ART had one
commercial property and one hotel in this region.
Mountain region comprised of the states of Colorado, Idaho, Montana,
Nevada, Utah and Wyoming. As of June 30, 1998, ART had two commercial
properties and one hotel in this region.
Pacific region comprised of the states of California, Oregon and
Washington. As of June 30, 1998, ART had four hotels in this region.
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Excluded from the above are a single family residence in Dallas, Texas and 47
parcels of developed, partially developed and undeveloped land as described
below.
REAL ESTATE
At June 30, 1998, approximately 89% of ART's assets were invested in real
estate and the equity securities of real estate entities. ART has invested in
real estate located throughout the continental United States, either on a
leveraged or nonleveraged basis. ART's real estate portfolio consists of
properties held for investment, investments in partnerships, properties held for
sale and investments in equity securities of CMET, IORI, TCI and NRLP.
Types of Real Estate Investments. ART's real estate consists of apartments,
commercial properties (office buildings, shopping centers and a merchandise
mart), hotels and developed, partially developed and undeveloped land. In
selecting new real estate investments, the location, age and type of property,
gross rents, lease terms, financial and business standing of tenants, operating
expenses, fixed charges, land values and physical condition are among the
factors considered. ART may acquire properties subject to or assume existing
debt and may mortgage, pledge or otherwise obtain financing for its properties.
The ART Board may alter the types of and criteria for selecting new real estate
investments and for obtaining financing without a vote of ART's stockholders.
Although ART has typically invested in developed real estate, ART may also
invest in new construction or development either directly or in partnership with
nonaffiliated parties or affiliates (subject to approval by the ART Board). To
the extent that ART invests in construction and development projects, ART would
be subject to business risks, such as cost overruns and construction delays,
associated with such higher risk projects.
At June 30, 1998, ART had under construction One Hickory Center, a 102,615
square foot office building in Farmers Branch, Texas. ART expects to expend
approximately $4.5 million in 1998 to complete construction and an additional
$750,000 for tenant improvements.
In the opinion of ART's management, the properties owned by ART are
adequately covered by insurance.
The following table sets forth the percentages, by property type and
geographic region, of ART's owned real estate (excluding the 47 parcels of
developed, partially developed and undeveloped land, and a single family
residence, described below) at June 30, 1998.
<TABLE>
<CAPTION>
Region Apartments Commercial Properties Hotels
- ------ ---------- --------------------- ------
<S> <C> <C> <C>
Midwest --% 9% 14%
Mountain -- 82 11
Pacific -- -- 46
Southwest 6 9 --
Southeast 94 -- 29
--- --- ---
Total 100% 100% 100%
=== === ===
</TABLE>
The foregoing table is based solely on the number of apartment units,
commercial square footage and hotel rooms owned by ART, as applicable, and does
not reflect the value of ART's investment in each region. Excluded from the
above table are a single family residence in Dallas, Texas and 47 parcels of
developed, partially developed and undeveloped land consisting of: one developed
residential lot in a residential subdivision in Fort Worth, Texas, two parcels
of partially developed land in Las Colinas, Texas, totaling 59.2 acres; 3.5
acres of undeveloped land in downtown Atlanta, Georgia; 389.4 acres of partially
developed land in Denver, Colorado; 3 parcels of partially developed land in
Dallas County, Texas, totaling 298.8 acres; 7.7 acres of undeveloped land in
Carrolton, Texas; 3 parcels of partially developed land in Irving, Texas,
totaling 344.7 acres; 420.0 acres of undeveloped land in Duchense, Utah; 82.4
acres of undeveloped land in Oceanside, California; 4 parcels of undeveloped
land in Tarrant County, Texas, totaling 1,688.0 acres; 2 parcels of undeveloped
land in Harris County, Texas, totaling 456.4 acres; 9 parcels of undeveloped
land in Collin County, Texas, totaling 646.7 acres; 7 parcels of undeveloped
land in Farmers Branch, Texas, totaling 95.0 acres; 2 parcels of undeveloped
land in Plano, Texas, totaling 352.2 acres; 1,448 acres of undeveloped land in
Austin, Texas; 420.0 acres of undeveloped land in Palm Desert, California;
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20.6 acres of undeveloped land in Santa Clarita, California; and 6 additional
parcels of land totaling approximately 113.5 acres.
A summary of the activity in ART's owned real estate portfolio during 1997
and through June 30, 1998 is as follows:
<TABLE>
<S> <C>
Owned properties in real estate portfolio at January 1, 1997.. 26*
Properties purchased.......................................... 74
Property obtained through foreclosure......................... 1
Properties sold............................................... (3)
Owned properties in real estate portfolio at
June 30, 1998............................................... 96*
</TABLE>
- ---------------------
* Includes one residential subdivision with 22 developed residential lots at
January 1, 1997, and one developed residential lot at June 30, 1998.
Properties Held for Investment. Set forth below are ART's properties
held for investment and the average annual rental rate per square foot for
commercial properties and the average daily room rate for hotels and occupancy
at December 31, 1997, 1996, 1995, 1994 and 1993 for commercial properties and
average occupancy during such periods for hotels:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Average Annual Rental Per Square Foot
or Average Room Rate
Square --------------------------------------------------------
Property Location Footage/Rooms 1997 1996 1995 1994 1993
-------- -------- ------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Office Building:
Rosedale Towers Minneapolis, MN 84,798 Sq. Ft. $15.03 $14.88 $13.16 $14.46 $14.00
- ----------------------------------------------------------------------------------------------------------------------------------
Shopping Centers:
Collection Denver, CO 267,812 Sq. Ft. 9.46 * * * *
Oak Tree Village Lubbock, TX 45,623 Sq. Ft. 8.17 7.98 7.34 * *
Preston Square Dallas, TX 35,508 Sq. Ft. 15.26 * * * *
- ----------------------------------------------------------------------------------------------------------------------------------
Merchandise Mart:
Denver Mart Denver, CO 509,008 Sq. Ft. 14.75 15.33 14.53 14.18 *
- ----------------------------------------------------------------------------------------------------------------------------------
Hotels:
Best Western Virginia Beach, VA 110 Rooms 90.44 41.11 * * *
Oceanside
Inn at the Mart Denver, CO 161 Rooms 53.15 46.66 44.69 42.38 *
Kansas City
Holiday Inn Kansas City, MO 196 Rooms 70.73 66.46 61.66 52.47 *
Piccadilly Airport Fresno, CA 185 Rooms 62.98 * * * *
Piccadilly Chateau Fresno, CA 78 Rooms 50.86 * * * *
Piccadilly Shaw Fresno, CA 194 Rooms 64.07 * * * *
Piccadilly University Fresno, CA 190 Rooms 62.22 * * * *
Williamsburg
Hospitality House Williamsburg, VA 296 Rooms 81.87 * * * *
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Property was acquired in 1995, 1996 or 1997.
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<PAGE> 72
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
Occupancy
---------
- ---------------------------------------------------------------------------------------
Property 1997 1996 1995 1994 1993
-------- ---- ---- ---- ---- ----
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Office Building:
Rosedale Towers 93% 91% 90% 94% 92%
- ---------------------------------------------------------------------------------------
Shopping Centers:
Collection 82% * * * *
Oak Tree Village 90% 89% 91% * *
Preston Square 92% * * * *
- ---------------------------------------------------------------------------------------
Merchandise Mart:
Denver Mart 93% 95% 96% 97% *
- ---------------------------------------------------------------------------------------
Hotels:
Best Western 60% 42% * * *
Oceanside
Inn at the Mart 53% 36% 40% 42% *
Kansas City
Holiday Inn 77% 79% 75% 75% *
Piccadilly Airport 50% * * * *
Piccadilly Chateau 49% * * * *
Piccadilly Shaw 62% * * * *
Piccadilly University 49% * * * *
Williamsburg
Hospitality House 60% * * * *
- ---------------------------------------------------------------------------------------
</TABLE>
* Property was acquired in 1995, 1996 or 1997.
Occupancy presented above is without reference to whether leases in effect are
at, below or above market rates.
As of June 30, 1998, none of ART's properties had a book value which
exceeded 10% of ART's total assets. For the quarter and six months ended June
30, 1998, the revenues of the Denver Merchandise Mart exceeded 10% of ART's
total revenues.
Denver Merchandise Mart. The Denver Merchandise Mart is a wholesale trade
mart located in Denver, Colorado. No tenant occupies ten percent or more of the
rentable square footage of the Denver Merchandise Mart. The principal business
carried on in or from the Denver Merchandise Mart is wholesale sales of goods.
The following table shows lease expiration information for the tenants of
the Denver Merchandise Mart at June 30, 1998:
<TABLE>
<CAPTION>
% of
Gross 1998 Aggregate 1998
Number of Leased Minimum Minimum
Leases Area Annual Annual
Year Expiring (a) (Sq. Ft.) Rent Rent
---- ------------ --------- ------- --------------
<S> <C> <C> <C> <C>
Month to Month 17 10,840 $ 125,772 2.5%
1998 227 130,821 2,031,948 40.8%
1999 91 61,956 1,049,532 21.1%
2000 132 105,924 1,772,508 35.6%
2001 -- -- -- --%
2002 -- -- -- --%
2003 -- -- -- --%
2004 -- -- -- --%
2005 -- -- -- --%
2006 1 2,278 -- --%
--- ------- ---------- -----
TOTAL 468 311,819 $4,979,760 100.0%
=== ======= ========== =====
</TABLE>
- ----------------
(a) Assumes no renewal options will be exercised in order to show the earliest
termination of the leases.
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<PAGE> 73
In October 1997, ART refinanced the mortgage debt secured by the Denver
Merchandise Mart for $25.0 million. The new loan is secured by a mortgage
against the Denver Merchandise Mart. ART received net refinancing proceeds of
$10.2 million after the payoff of $14.8 million in existing mortgage debt that
was scheduled to mature in October 1997. The new loan bears interest at 8.3% per
annum, requires monthly principal and interest payments of $198,000 and matures
in October 2012. The principal balance of the mortgage debt as of June 30, 1998
was $24.9 million. ART substantially completed a renovation and expansion of the
Denver Merchandise Mart in December 1997.
In October 1997, ART contributed the Denver Merchandise Mart to a limited
partnership in exchange for $6.0 million in cash, a 1% managing general partner
interest in the partnership, all of the Class B limited partner units in the
partnership and the partnership's assumption of the mortgage debt secured by
such property. The existing general and limited partners converted their general
and limited partner interests into Class A limited partner units in the
partnership. The Class A units have an agreed value of $1.00 per unit and are
entitled to a fixed preferred return of 10% per annum, paid quarterly. The Class
A units may be converted into a total of 529,000 ART Preferred Shares at any
time after the first but not later than the sixth anniversary of the closing, on
the basis of one ART Preferred Share for each ten Class A units.
Real estate taxes are levied against the Denver Merchandise Mart for county
and township, and school tax purposes. Denver Merchandise Mart paid $305,746 in
real estate taxes in 1997. The 1997 millage rate was 8.4042/100. ART estimates
that Denver Merchandise Mart will owe approximately $312,175 in real estate
taxes in 1998. Real estate taxes are substantially reimbursed by the tenants
through real estate tax recovery billings.
As of June 30, 1998, for Federal income tax purposes, ART depreciates the
Denver Merchandise Mart under the Modified Accelerated Cost Recovery System
("MACRS") as follows:
Buildings:
Gross Federal Income Tax Basis $ 17,382,481
Accumulated Depreciation $ 8,762,335
Depreciation Method MACRS - Straight Line ("SL")
Depreciable Life Various
Land Improvements:
Gross Federal Income Tax Basis $ 226,112
Accumulated Depreciation $ 13,743
Depreciation Method MACRS - 150% Declining Balance ("DB")
Depreciable Life 15 years
Personal Property:
Gross Federal Income Tax Basis $ 862,309
Accumulated Depreciation $ 612,465
Depreciation Method MACRS - 200% DB
Depreciable Life Various
In September 1997, ART foreclosed on its $8.9 million junior mortgage note
receivable secured by the Williamsburg Hospitality House, a 297 room hotel in
Williamsburg, Virginia. ART acquired the property at foreclosure subject to a
first lien mortgage of $12.0 million.
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In September 1997, ART purchased The Collection, a 267,812 square foot
retail and commercial center in Denver, Colorado, for $19.5 million. ART paid
$791,000 in cash and assumed existing mortgages totaling $14.7 million, and
issued 400,000 ART Preferred Shares (having a total value of $4.0 million). A
first lien mortgage in the amount of $14.2 million bears interest at 8.64% per
annum, requires monthly principal and interest payments of $116,000 and matures
in May 2017. A second lien mortgage in the amount of $580,000 bears interest at
7% per annum until April 2001, 7.5% per annum from May 2001 to April 2006, and
8% per annum from May 2006 to May 2010, requires monthly principal and interest
payments of $3,000 and matures in May 2010.
In October 1997, ART purchased, in a single transaction, four hotels in
Fresno, California, for $33.0 million, consisting of (i) Piccadilly Inn Shaw
(194 rooms), (ii) Piccadilly Inn University (190 rooms), (iii) Piccadilly Inn
Airport (185 rooms) and (iv) Chateau Inn (78 rooms). ART issued 1.6 million ART
Preferred Shares (having a total value of $16.0 million) and obtained new
mortgage financing of $19.8 million. ART received net financing proceeds of $2.2
million after the payment of various closing costs associated with the
financing. The mortgage bears interest at 8.4% per annum, requires monthly
principal and interest payments of $158,000 and matures in October 2013.
Also in October 1997, ART refinanced the Oak Tree Village in Lubbock,
Texas, for $1.5 million. ART received no net financing proceeds after the payoff
of $1.4 million in existing mortgage debt and the payment of various closing
costs associated with the financing. The mortgage bears interest of 8.48% per
annum, requires monthly payments of principal and interest of $18,000 and
matures in November 2007.
In December 1997, ART exchanged a 43.0 acre tract of Valley Ranch land for
Preston Square, a 35,508 square foot shopping center in Dallas, Texas. In
accordance with the provisions of the term loan secured by the Valley Ranch
land, ART paid $2.8 million to the lender in exchange for the lender's release
of its collateral interest in such land . Simultaneously, ART obtained new
mortgage financing of $2.5 million secured by the shopping center. The mortgage
bears interest at 8.2% per annum, requires monthly payments of interest only and
matures in December 1999. ART recognized no gain or loss on the exchange.
Also in December 1997, ART refinanced the Inn at the Mart in Denver,
Colorado, for $4.0 million. ART received net financing proceeds of $1.4 million,
after the payoff of $2.0 million in existing mortgage debt and the payment of
various closing costs associated with the financing. The mortgage bears interest
at 7.85% per annum, requires monthly payments of principal and interest of
$30,000 and matures in January 2013.
In November 1994, ART and an affiliate of BCM, sold five apartment
complexes to a newly formed limited partnership in exchange for $3.2 million in
cash, a 27% limited partner interest in the partnership and two mortgage notes
receivable, secured by one of the properties sold. ART had the option to
reacquire the properties at any time after September 1997 for their original
sales prices, after the buyer having received a 12% return on its investment.
Accordingly, ART recorded a deferred gain of $5.6 million which was offset
against ART's investment in the partnership. In February 1998, ART reacquired
three of the properties for $7.7 million. ART paid $4.0 million in cash and
assumed the existing mortgages of $3.7 million. Simultaneously ART refinanced
the three properties for a total of $7.8 million, ART receiving net financing
proceeds of $3.9 million after paying off of $3.7 million in existing mortgage
debt and the payment of various costs associated with the financing. The new
mortgages bear interest at 9.5% per annum, require monthly principal and
interest payments of a total of $66,000 and mature in February 2008. In June
1998, ART reacquired the remaining two properties for $8.7 million. The Company
paid $2.1 million in cash and assumed the existing mortgages of $6.6 million.
The mortgages bear interest at 8.73% per annum, require monthly principal and
interest payments of a total of $57,000 and mature in January 2019.
In May 1998, but effective April 1, 1998, ART completed the purchase, in a
single transaction, twenty-nine apartment complexes (collectively, the "IGI
Properties") totaling 2,441 units in Florida and Georgia for $55.8 million. ART
acquired the properties through three newly-formed Texas limited partnerships.
The partnerships paid a total of $6.1 million in cash, assumed $43.4 million in
existing mortgage debt and issued a total of $6.6 million in Class A Limited
Partner units in the acquiring entities, having ART as the Class B Limited
Partner and a newly-formed wholly-owned subsidiary of ART, as the Managing
General Partner. The Class A Limited Partners are entitled to an annual
preferred return of $.08 per unit in 1998, $.09 per unit in 1999 and $.10 per
unit in 2000 and thereafter. The units are exchangeable at anytime after April
1, 1999 into ART Preferred Shares on the basis of ten units for one ART
Preferred Share. The mortgages bear interest at rates ranging between 7.86% and
11.22% per annum, require monthly principal and interest payments totaling
$384,000 and mature between July 1, 2000 and September 1, 2017.
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Properties Held for Sale. Set forth below are ART's properties held for
sale, at December 31, 1997, primarily undeveloped, partially developed and
undeveloped land:
<TABLE>
<CAPTION>
Property Location Acres/Lots
- ----------------- ----------------- --------------------
<S> <C> <C>
Atlanta Atlanta, GA 3.5 Acres
Bad Lands Duchense, Utah 420.0 Acres
BP Las Colinas Las Colinas, TX 10.6 Acres
Chase Oaks Plano, TX 60.5 Acres
Dalho Farmers Branch, TX 3.4 Acres
Dowdy Collin County, TX 165.0 Acres
Hollywood Casino Farmers Branch, TX 51.7 Acres
Jeffries Ranch Oceanside, CA 82.4 Acres
Kamperman Collin County, TX 29.9 Acres
Katy Road Harris County, TX 130.6 Acres
Keller Tarrant County, TX 811.8 Acres
Lacy Longhorn Farmers Branch, TX 17.1 Acres
Las Colinas I Las Colinas, TX 48.6 Acres
LBJ Dallas County, TX 10.4 Acres
Lewisville Lewisville, TX 78.5 Acres
McKinney Corners I Collin County, TX 30.4 Acres
McKinney Corners II Collin County, TX 173.9 Acres
McKinney Corners III Collin County, TX 15.5 Acres
McKinney Corners IV Collin County, TX 31.3 Acres
McKinney Corners V Collin County, TX 9.7 Acres
Palm Desert Palm Desert, CA 315.2 Acres
Pantex Collin County, TX 182.5 Acres
Parkfield Denver, CO 410.7 Acres
Pioneer Crossings Austin, TX 1,448.0 Acres
Rasor Plano, TX 291.7 Acres
Santa Clarita Santa Clarita, CA 20.6 Acres
Scout Tarrant County, TX 546.0 Acres
Stagliano Farmers Branch, TX 3.2 Acres
Thompson Farmers Branch, TX 4.0 Acres
Tomlin Farmers Branch, TX 9.2 Acres
Valley Ranch Irving, TX 335.2 Acres
Valley Ranch III Irving, TX 12.5 Acres
Valwood Dallas, TX 280.0 Acres
Vineyards Grapevine, TX 15.8 Acres
Other (8 properties) Various 114.5 Acres
</TABLE>
In January 1997, ART sold a 3.0 acre tract of the Las Colinas I land
parcel in Las Colinas, Texas, for $1.2 million in cash. ART recognized a gain of
$676,000 on the sale.
Also in January 1997, ART purchased the Scout land, a 546 acre parcel
of undeveloped land in Tarrant County, Texas, for $2.2 million. ART paid
$725,000 in cash and obtained new mortgage financing for the remaining $1.5
million of the purchase price. The mortgage bears interest at 16% per annum,
requires quarterly payments of interest only and matures in January 2000.
In February 1996, ART entered into a contract to sell a 72.5 acre tract
of the 92.6 acre parcel of BP Las Colinas land in Las Colinas, Texas, for $12.9
million. The contract called for the sale to close in two phases. In July 1996,
ART completed the first sale. In February 1997, ART completed the second sale of
40.2 acres for $8.0 million, of which $7.2 million was paid in cash. Of the net
cash proceeds of $6.9 million, $1.5 million was used to payoff the debt secured
by the BP Las Colinas land parcel, pay a $500,000 maturity fee to the lender,
make a $1.5 million principal paydown on the loan with the same lender, secured
by the Parkfield land in Denver, Colorado and $1.0 million was applied as
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a principal paydown on the term loan secured by the Las Colinas I land. In
conjunction with the sale ART provided $800,000 in purchase money financing in
the form of a six month unsecured loan. The loan bore interest at 12% per annum,
with all accrued but unpaid interest and principal due at maturity in August
1997. ART recognized a gain of $3.4 million on such sale, deferring an
additional $800,000 of gain until the unsecured loan was paid in full. The loan
was collected in full in August 1997 and the additional $800,000 gain was
recognized.
In March 1997, ART purchased the Katy Road land, a 130.6 acre parcel of
undeveloped land in Harris County, Texas, for $5.6 million. ART paid $1.6
million in cash and obtained seller financing for the remaining $4.0 million of
the purchase price. The mortgage bears interest at 9% per annum, requires
quarterly payments of interest only and matures in March 2000.
In April 1997, ART purchased the McKinney Corners I land, a 30.4 acre
parcel of undeveloped land in Collin County, Texas, for $3.5 million. ART paid
$1.0 million in cash and obtained new mortgage financing of $2.5 million. The
mortgage bears interest at 14% per annum, requires monthly payments of interest
only and matures in April 1998.
Also in April 1997, ART purchased the McKinney Corners II land, a 173.9
acre parcel of undeveloped land in Collin County, Texas, for $5.9 million. ART
paid $900,000 in cash and obtained new mortgage financing of $5.0 million as an
advance under the term loan from the Las Colinas I lender. The McKinney Corners
II land was added as additional collateral on the term loan.
Further in April 1997, ART sold a 3.1 acre parcel of the Las Colinas I
land for $1.3 million in cash. ART used $1.0 million of the sales proceeds as a
collateral escrow deposit in accordance with the provision of the Valley Ranch
land loan. The certificate of deposit was released to the Valley Ranch lender in
December 1997 in connection with the payoff of the land loan. ART recognized a
gain of $668,000 on the sale.
In May 1997, ART purchased the McKinney Corners III land, a 15.5 acre
parcel of undeveloped land in Collin County, Texas, for $896,000 in cash.
Also in May 1997, ART purchased the Lacy Longhorn land, a 17.1 acre
parcel of undeveloped land in Farmers Branch, Texas, for $1.8 million. ART paid
$200,000 in cash and obtained seller financing of the remaining $1.6 million of
the purchase price. The loan bore interest at 10% per annum, required monthly
principal and interest payments of $400,000 and matured in October 1997. The
loan was paid off at maturity.
Further in May 1997, ART purchased the Chase Oaks land, a 60.5 acre
parcel of undeveloped land in Plano, Texas, for $4.2 million. ART paid $200,000
in cash and obtained seller financing of the remaining $4.0 million of the
purchase price. The related mortgage note bears interest at 18% per annum,
requires monthly payments of interest only and matures in May 2000.
In May 1997, ART purchased the Pioneer Crossing land, a 1,448 acre
parcel of undeveloped land in Austin, Texas, for $21.5 million. ART paid $5.4
million in cash and obtained seller financing of the remaining $16.1 million of
the purchase price. The financing bears interest at 9.5% per annum, requires
monthly payments of interest only and matures in May 2001.
Also in May 1997, ART financed the unencumbered 10.6 acre tract of the
BP Las Colinas land for $3.1 million. The mortgage bears interest at 9.5% per
annum, requires monthly payments of interest only and matures in December 1999.
Further in May 1997, ART obtained a second lien mortgage of $3.0
million secured by the Pin Oak land, from the limited partner in Nanook
Partners, L.P., a limited partnership that owns approximately 15.6% of the
outstanding shares of the Common Stock of ART (the "Nanook Limited Partner").
The mortgage bears interest at 12.5% per annum compounded monthly, and matures
in February 1999. In January 1998, the Palm Desert land was substituted for the
Pin Oak land as collateral for the mortgage.
In June 1997, ART purchased the Kamperman land, a 129.6 acre parcel of
undeveloped land in Collin County, Texas, for $5.0 million in cash. ART
simultaneously sold a 99.7 acre tract for $4.5 million in cash. ART recognized a
gain of $215,000 on the sale.
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Also in June 1997, ART purchased the Keller land, a 811.8 acre parcel
of undeveloped land in Tarrant County, Texas, for $6.3 million. ART paid $2.3
million in cash and obtained new mortgage financing of $4.0 million. The
mortgage bears interest at 12.95% per annum, requires monthly payments of
interest only and matures in June 1998.
Further in June 1997, ART purchased the McKinney Corners IV land, a
31.3 acre parcel of undeveloped land in Collin County, Texas, for $2.4 million.
ART paid $400,000 in cash and obtained new mortgage financing of $2.0 million,
as an advance under the term loan from the Las Colinas I lender. The McKinney
Corners IV land was added as additional collateral on the term loan.
In June 1997, ART purchased the Pantex land, a 182.5 acre parcel of
undeveloped land in Collin County, Texas, for $5.4 million. ART paid $900,000 in
cash and obtained seller financing of the remaining $4.5 million of the purchase
price. The financing bears interest at 10.5% per annum, requires semiannual
payments of interest only and matures in December 2000.
Also in June 1997, ART obtained a second lien mortgage of $3.0 million
secured by the Lewisville land, from the Nanook Limited Partner. The mortgage
bears interest at 12.5% per annum, compounded monthly and matures in February
1999.
Further in June 1997, ART refinanced the Valwood land for $15.8
million. The mortgage bears interest at the prime rate plus 4.5%, currently 13%
per annum, requires monthly payments of interest only and matures in December
1998. ART received net financing proceeds of $4.9 million, after the payoff of
$6.2 million in existing mortgage debt secured by the property, an additional
$3.0 million being applied to payoff the Jefferies land loan and $1.4 million
being applied to pay down the Las Colinas I land term loan.
In July 1997, ART sold a 3.9 acre tract of the Las Colinas I land in
Las Colinas, Texas, for $1.6 million in cash. In accordance with the provisions
of the term loan secured by such parcel, ART applied the net sales proceeds of
$1.4 million, to paydown the term loan in exchange for that lender's release of
its collateral interest in such land. ART recognized a gain of $771,000 on the
sale.
Also in July 1997, ART purchased the Dowdy and McKinney Corners V land,
a total of 174.7 acres of undeveloped land in Collin County, Texas, for $2.9
million. ART obtained new mortgage financing of $3.3 million as an advance under
the term loan from the Las Colinas I lender. The Dowdy land, McKinney Corners V
land and McKinney Corners III land were added as additional collateral on the
term loan.
Further in July 1997, ART purchased the Perkins land, a 645.4 acre
parcel of undeveloped land in Collin County, Texas, for $5.8 million. ART paid
$3.3 million in cash and assumed the existing mortgage of $2.5 million. The
mortgage bears interest at 8.5% per annum, requires quarterly payments of
interest only and matures in March 2002.
In July 1997, ART purchased the LBJ land, a 10.4 acre parcel of
undeveloped land in Dallas County, Texas, for $2.3 million. ART paid $300,000 in
cash and obtained seller financing of the remaining $2.0 million of the purchase
price. The mortgage bears interest at 18% per annum, requires quarterly payments
of interest only and matures in September 1998.
Also in July 1997, ART obtained a third lien mortgage of $2.0 million
secured by the Pin Oak land, from the Nanook Limited Partner. The mortgage bore
interest at 12.5% per annum, compounded monthly and matured in February 1998.
The mortgage was paid in full in January 1998.
In September 1997, ART sold the Mopac Building in St. Louis, Missouri,
for $1.0 million in cash. In accordance with the provisions of the Las Colinas I
term loan, ART applied $350,000 of the sales proceeds to paydown the term loan
in exchange for the lender's release of its collateral interest in such
property. ART recognized a gain of $481,000 on the sale.
Also in September 1997, ART sold a 2.6 acre tract of the Las Colinas I
land parcel in Las Colinas, Texas, for $1.2 million in cash. In accordance with
the provisions of the term loan secured by such parcel, ART applied the net
sales proceeds of $1.0 million, to paydown the term loan in exchange for the
lender's release of its collateral interest in such land. ART recognized a gain
of $578,000 on the sale.
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Further in September 1997, ART sold three tracts of the Valley Ranch
land totaling 24.0 acres for $1.6 million in cash. The net cash proceeds of $1.2
million were deposited in a certificate of deposit for the benefit of the
lender, in accordance with the term loan secured by such land. The certificate
of deposit was released to the lender in December 1997, in conjunction with the
payoff of the loan. ART recognized a gain of $567,000 on the sale.
In September 1997, ART refinanced the Las Colinas I land Double O tract
for $7.3 million. ART received net refinancing proceeds of $2.1 million, after
the payoff of the existing mortgage debt of $5.0 million and the payment of
various closing costs associated with the financing. The new mortgage bears
interest at the prime rate plus 4.5%, currently 13% per annum, requires monthly
payments of interest only and matures in October 1998.
In October 1997, ART contributed its Pioneer Crossing land in Austin,
Texas to a limited partnership in exchange for $3.4 million in cash, a 1%
managing general partner interest in the partnership and all of the Class B
limited partner units in the partnership and the partnership's assumption of the
$16.1 million mortgage debt secured by such property. The existing general and
limited partners converted their general and limited partner interests into
Class A limited partner units in the partnership. The Class A units have an
agreed value of $1.00 per unit and are entitled to a fixed preferred return of
10% per annum, paid quarterly. The Class A units may be converted into a total
of 360,000 ART Preferred Shares at any time after the first but no later than
the sixth anniversary of the closing, on the basis of one ART Preferred Share
for each ten Class A units.
Also in October 1997, ART purchased the Palm Desert land, a 315.2 acre
parcel of undeveloped land in Palm Desert, California, for $11.2 million. ART
paid $3.8 million in cash and assumed the existing mortgage of $7.4 million. The
mortgage bears interest at 9% per annum, requires monthly principal and interest
payments of $76,000 and matures in February 2002.
Further in October 1997, ART purchased the Thompson land, a 4.0 acre
parcel of undeveloped land in Dallas County, Texas, for $869,000 in cash.
In October 1997, ART purchased the Santa Clarita land, a 20.6 acre
parcel of undeveloped land, in Santa Clarita, California, for $1.3 million. ART
obtained new mortgage financing of $1.3 million as an advance under the term
loan from the Las Colinas I lender. The Santa Clarita land was added as
additional collateral on the term loan.
Also in October 1997, ART purchased the Tomlin land, a 9.2 acre parcel
of undeveloped land in Dallas County, Texas, for $1.7 million in cash.
Further in October 1997, ART purchased the Rasor land, a 378.2 acre
parcel of undeveloped land in Plano, Texas, for $14.4 million. ART paid $5.1
million in cash, obtained new mortgage financing of $3.5 million as an advance
under the term loan from the Las Colinas I lender, and exchanged its Perkins
land, a 645.4 acre parcel of undeveloped land in Collin County, Texas, for the
remainder of the purchase price. ART simultaneously sold an 86.5 acre tract of
Rasor land for $3.8 million in cash, ART received net cash of $3.5 million after
the payment of various closing costs associated with the sale. The Rasor land
was added as additional collateral on the term loan. ART recognized a gain of
$212,000 on the sale of the 86.5 acre tract.
In October 1997, a newly formed partnership, of which ART is the 1%
general partner and Class B limited partner, purchased Vineyards land, a 15.8
acre parcel of undeveloped land in Tarrant County, Texas, for $4.5 million. The
partnership paid $800,000 in cash, assumed $2.5 million of existing mortgage
debt and issued to the seller 1.1 million Class A limited partner units with an
agreed value of $1.00 per unit. The Class A limited partner is entitled to a
fixed annual preferred return of 10% per annum paid quarterly. The Class A units
may be exchanged for either shares of ART's Series G Cumulative Convertible
Preferred Stock on or after the second anniversary of the closing date at a rate
of one share of Series G Preferred Stock for each 100 Class A units exchanged or
for ART Common Shares only on or after the third anniversary of the closing
date. The Class A units are exchangeable for ART Common Shares at a rate of
$1.00 per unit plus any outstanding preferred return divided by 0.9 times the
simple average of the daily closing price of the ART Common Shares for the 20
business days preceding the date of conversion. The assumed mortgage bore
interest at 12.95% per annum, required quarterly payments of interest only and
was scheduled to mature in June 1998. In February 1998, ART refinanced the
Vineyards land in the amount of $3.4 million. ART received net refinancing
proceeds of $2.9 million after the payoff of the then existing mortgage debt of
$540,000. The new mortgage bears interest at 9.0% per annum, requires monthly
payments of interest only and matures in February 2000.
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Also in October 1997, ART purchased the Dalho land, a 3.4 acre parcel
of undeveloped land in Farmers Branch, Texas, for $300,000 in cash.
Further in October 1997, ART sold an 11.6 acre tract of the Valley
Ranch land for $1.2 million in cash. The net cash proceeds of $990,000, after
the payment of various closing costs associated with the sale, were deposited in
a certificate of deposit for the benefit of the lender, in accordance with the
term loan secured by such land. The certificate of deposit was released to
lender in December 1997, in conjunction with the payoff of the loan. ART
recognized a gain of $629,000 on the sale.
In November 1997, ART sold two tracts of the Valley Ranch land,
totaling 8 acres, for $577,000 in cash. The net cash proceeds of $451,000, after
the payment of various closing costs associated with the sale, were deposited in
a certificate of deposit for the benefit of the lender, in accordance with the
term loan secured by such land. The certificate of deposit was released to
lender in December 1997, in conjunction with the payoff of the loan. ART
recognized a gain of $216,000 on the sale.
Also in November 1997, ART purchased the Hollywood Casino land, a 51.7
acre parcel of undeveloped land in Farmers Branch, Texas, for $11.1 million. ART
paid $3.6 million in cash and obtained new mortgage financing of $7.5 million.
The mortgage bears interest at 9.25% per annum, requires monthly payments of
interest only and matures in December 1999.
Further in November 1997, ART obtained mortgage financing of $5.4
million secured by 33.9 acres of previously unencumbered Valwood land, Lacy
Longhorn land, Thompson land, and Tomlin land. ART received net financing
proceeds of $4.8 million after the payment of various closing costs associated
with the financing. The mortgage bears interest at 13.5% per annum, requires
monthly payments of principal and interest and matures in November 2007.
In December 1997, ART sold a 5.1 acre tract of the Valley Ranch land,
for $430,000 in cash. The net cash proceeds of $353,000, after the payment of
various closing costs associated with the sale, were deposited in a certificate
of deposit for the benefit of the lender, in accordance with the term loan
secured by such land. The certificate of deposit was released to lender in
December 1997, in conjunction with the payoff of the loan. ART recognized a gain
of $203,000 on the sale.
Also in December 1997, ART purchased the Valley Ranch III land, a 12.5
acre parcel of undeveloped land in Irving, Texas, for $2.1 million. ART paid
$527,000 in cash and obtained seller financing of the remaining $1.6 million of
the purchase price. The financing bears interest at 10.0% per annum, requires
the payment of principal and interest at maturity and matures in December 1998.
Further in December 1997, ART purchased the Stagliano land, a 3.2 acre
parcel of undeveloped land in Farmers Branch, Texas, for $500,000 in cash.
In December 1997, ART sold a 32.0 acre tract of the Parkfield land in
Denver, Colorado, for $1.2 million in cash. In accordance with the provisions of
the term loan secured by such parcel, ART applied the net cash proceeds of $1.1
million, to paydown the term loan in exchange for the lender's release of its
collateral interest in such land. ART recognized a gain of $372,000 on the sale.
Also in December 1997, ART sold two parcels of the Valley Ranch land,
totaling 25.1 acres, for $3.3 million. ART received net cash proceeds of $2.1
million and provided an additional $891,000 in purchase money financing. The
purchase money financing bore interest at 10.0% per annum and matured in January
1998. ART received a $624,000 paydown on the purchase money financing in January
1998 with the remainder being deferred until a zoning issue is resolved. In
accordance with the provisions of the term loan secured by such parcel, ART
applied the net cash proceeds of $2.1 million to payoff the term loan secured by
such parcel, the lender releasing its collateral interest in the remaining
Valley Ranch land. ART recognized a gain of $1.8 million on the sale, and
deferred an additional $267,000 until the zoning issue is resolved.
Further in December 1997, ART sold Park Plaza, a 105,507 square foot
shopping center in Manitowoc, Wisconsin, for $4.9 million in cash. ART received
net cash of $1.6 million, after the payoff of $3.1 million in existing
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mortgage debt and the payment of various closing costs associated with the sale.
ART recognized a gain of $105,000 on the sale.
In December 1997, ART sold the Pin Oak land, a 567.6 acre parcel of
undeveloped land in Houston, Texas, for $11.4 million. ART received net cash
proceeds of $3.5 million, and provided an additional $6.9 million in short term
seller financing that was paid in full in January 1998. On the payoff of the
seller financing ART received net cash of $1.5 million after the payoff of $5.2
million in underlying mortgage debt and the payment of various closing costs
associated with the sale. ART recognized a gain of $3.7 million on the sale.
In 1991, ART purchased all of the capital stock of a corporation which
owned 198 developed residential lots in Fort Worth, Texas. Through December 31,
1996, 188 of the residential lots had been sold. During 1997, 9 additional lots
were sold for an aggregate gain of $17,000. At December 31, 1997, one lot
remained to be sold.
In November 1991, ART transferred the Porticos Apartments to IORI, an
equity investee, in satisfaction of ART's then $3.6 million obligation to IORI.
ART recorded a deferred gain of $3.0 million on the transfer. In June 1997, IORI
sold the property, and accordingly ART recognized such previously deferred gain.
In January 1998, ART purchased the El Dorado Parkway land, an 8.5 acre
parcel of undeveloped land in McKinney, Texas, for $952,000. ART paid $307,000
in cash and assumed the existing mortgage of $164,000, and obtained seller
financing of the remaining $481,000 of the purchase price. The mortgage bears
interest at 10% per annum, requires semiannual payments of principal and
interest of $18,000 and matures in May 2005. The seller financing bears interest
at 8% per annum, requires semiannual principal and interest payments of $67,000
and matures in January 2002.
Also in January 1998, ART purchased the Valley Ranch IV land, a 12.3
acre parcel of undeveloped land in Irving, Texas, for $2.0 million. ART paid
$500,000 in cash and obtained seller financing of the remaining $1.5 million of
the purchase price. The financing bears interest at 10% per annum, requires
quarterly payments of interest only and matures in December 2000.
Further in January 1998, ART purchased the JHL Connell land, a 7.7 acre
parcel of undeveloped land in Carrollton, Texas, for $1.3 million in cash.
In February 1998, ART purchased the Scoggins land, a 314.5 acre parcel
of undeveloped land in Tarrant County, Texas, for $3.0 million. ART paid $1.5
million in cash and obtained new mortgage financing of $1.5 million. The
mortgage bears interest at 14% per annum, requires quarterly payments of
interest only, required a principal paydown of $300,000 in May 1998, which was
paid, and matures in February 1999.
Also in February 1998, ART purchased the Bonneau land, a 8.4 acre
parcel of undeveloped land in Dallas County, Texas, for $1.0 million. ART
obtained new mortgage financing of $1.0 million. The mortgage bears interest at
18.5% per annum with principal and interest due at the maturity in February
1999. ART's JHL Connell land is pledged as additional collateral for this loan.
Further in February 1998, ART financed the unencumbered Kamperman land
for $1.6 million. ART received net financing proceeds of $1.5 million after the
payment of various closing costs associated with the financing. The mortgage
bears interest at 9.0% per annum, requires monthly payments of interest only and
matures in February 2000.
In February 1998, ART financed its unencumbered Valley Ranch land for
$4.3 million. ART received net financing proceeds of $4.1 million after the
payment of various closing costs associated with the financing. The mortgage
bears interest at 9.0% per annum, requires monthly payments of interest only and
matures in February 2000.
Also in February 1998, ART refinanced the Vineyards land in the amount
of $3.4 million. ART received net cash of $2.9 million, after paying off
existing mortgage debt of $540,000. The new mortgage bears interest at 9.0% per
annum, requires monthly payments of interest only and matures in February 2000.
In March 1998, ART financed its unencumbered Stagliano and Dalho land
in the amount of $800,000 with the lender on the Bonneau land, described above.
ART received net cash of $790,000 after the payment of various closing
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costs associated with the financing. The mortgage bears interest at 18.5% per
annum with principal and interest due at maturity in February 1999. ART's JHL
Connell land is also pledged as additional collateral for this loan.
Also in March 1998, ART purchased the Desert Wells land, a 420 acre
parcel of undeveloped land in Palm Desert, California, for $12.0 million. ART
paid $400,000 in cash, obtained new mortgage financing of $10.0 million and
obtained seller financing of the remaining $1.6 million of the purchase price.
The mortgage bears interest at 4.5% above the prime rate, currently 13% per
annum, requires monthly payments of interest only and matures in March 1999. The
seller financing bore interest at 10% per annum, required monthly payments of
interest only and matured in July 1998. The seller financing was paid off at
maturity in July 1998.
Further in March 1998, ART refinanced the mortgage debt secured by the
McKinney Corners and Dowdy land in the amount of $20.7 million. ART received net
cash of $5.9 million after the payoff of $2.5 million in existing mortgage debt,
the paydown of $10.2 million on the Las Colinas I term loan and the payment of
various closing costs associated with the financing. ART also pledged 800,000
ART Shares as additional security for the loan. The new mortgage bears interest
at 12% per annum, requires monthly payments of interest only and matures in
March 1999.
In April 1998, ART purchased the Yorktown land, a 325.8 acre parcel of
undeveloped land in Harris County, Texas, for $7.4 million. ART paid $3.0
million in cash and obtained seller financing of the remaining $4.4 million of
the purchase price. The financing bear interest at 8.5% per annum, requires
monthly payments of interest only and matures in November 1998.
Also in April 1998, ART sold a 77.7 acre tract of the Lewisville land
parcel, for $6.8 million in cash. ART received net cash of $358,000 after the
payoff of first and second lien mortgages totaling $5.9 million and the payment
of various closing costs associated with the sale. ART recognized a gain of $2.0
million on the sale.
Further in April 1998, ART obtained a second lien mortgage of $2.0
million secured by the BP Las Colinas land from the Nanook Limited Partner. The
mortgage bears interest at 12% per annum, with principal and interest due at
maturity in October 1998.
In April 1998, ART refinanced the mortgage debt secured by the
Parkfield land in the amount of $7.3 million. ART received net cash of $1.2
million after the payoff of $5.0 million in existing mortgage debt and the
payment of various closing costs associated with the financing. The new mortgage
bears interest at 9.5% per annum, requires monthly payments of interest only and
matures in April 2000.
In May 1998, ART sold a 15.4 acre tract of the Valley Ranch land
parcel, for $1.2 million in cash. ART received net cash of $41,000 after paying
down by $1.1 million the mortgage secured by such land parcel and the payment of
various closing costs associated with the sale. ART paid a real estate brokerage
commission of $37,000 to Carmel Realty based on the $1.2 million sales price of
the property. ART recognized a gain of $663,000 on the sale.
Also in May 1998, ART purchased the FRWM Cummings land, a 6.4 acre
parcel of undeveloped land in Farmers Branch, Texas, for $1.2 million in cash.
ART paid a real estate brokerage commission of $36,000 to Carmel Realty based on
the $1.2 million purchase price of the property.
Further in May 1998, ART sold a 21.3 acre tract of the Parkfield land
parcel, for $1.3 million in cash. ART received net cash of $40,000 after paying
down by $1.1 million the mortgage secured by such land parcel and the payment of
various closing costs associated with the sale. ART paid a real estate brokerage
commission of $38,000 to Carmel Realty based on the $1.3 million sales price of
the property. ART recognized a gain of $670,000 on the sale.
In May 1998, ART refinanced the mortgage debt secured by its Scout and
Scoggins land in the amount of $10.4 million under the Las Colinas I term loan.
ART received net cash of $6.6 million after paying off $1.4 million in mortgage
debt on the Scout land and $1.5 million in mortgage debt on the Scoggins land, a
pay down of $250,000 on the Keller land mortgage, and the payment of various
closing costs associated with the financing. ART also pledged 250,000 shares of
its Common Stock and BCM, an affiliate of and advisor to ART, pledged 177,000
shares of ART's Common Stock as additional security on the mortgage.
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In June 1998, ART sold a 21.6 acre tract of the Chase Oaks land, for
$3.3 million in cash. ART received net cash of $517,000 after paying down by
$2.0 million the mortgage secured by such land parcel and the payment of various
closing costs associated with the sale. ART paid a real estate brokerage
commission of $99,000 to Carmel Realty based on the $3.3 million sales price of
the property. ART recognized a gain of $848,000 on the sale.
Also in June 1998, ART sold a 150.0 acre tract of the Rasor land, for
$6.8 million in cash. ART received net cash of $1.6 million after paying down by
$5.0 million the mortgage secured by such land parcel and the payment of various
closing costs associated with the sale. ART paid a real estate brokerage
commission of $203,000 to Carmel Realty based on the $6.8 million sales price of
the property. ART recognized a gain of $789,000 on the sale.
Further in June 1998, ART sold its entire 315.2 acre Palm Desert land
parcel, for $17.2 million in cash. ART received net cash of $9.2 million after
paying off the $7.2 million mortgage secured by such land parcel and the payment
of various closing costs associated with the sale. ART paid a real estate
brokerage commission of $517,000 to Carmel Realty based on the $17.2 million
sales price of the property. ART recognized a gain of $3.9 million on the sale.
In July 1998, ART purchased the Thompson II land, a 3.5 acre parcel of
undeveloped land in Dallas County, Texas, for $471,000 in cash.
Also in July 1998, ART purchased, through a newly formed partnership, the
Katrina land, a 454.8 acre parcel of undeveloped land in Palm Desert,
California, for $38.2 million. The partnership issued $23.2 million of Class A
Limited Partner units and obtained new mortgage financing of $15.0 million. The
Class A Limited Partners are entitled to an annual preferred return of $.07 per
unit in 1998, $.08 per unit in 1999, $.09 per unit in 2000 and $.10 per unit in
2001 and thereafter the Class A units may be converted into shares of ART's
Series H Preferred Stock anytime after twelve months from closing on the basis
of 100 Class A units for each share of Series H Preferred Stock. The Series H
Preferred Stock may be converted into ART Common Stock using a 90% factor
starting in December 2000.
Further in July 1998, ART purchased the HSM Cummings land, a 10.9 acre
parcel of undeveloped land in Dallas County, Texas, for $1.6 million in cash.
In July 1998, ART purchased the Walker land, a 71.1 acre parcel of
undeveloped land in Dallas County, Texas, for $10.9 million in cash. Also in
July, ART obtained mortgage financing of $13.3 million. ART received net cash of
$12.8 million after the payment of various closing costs associated with the
financing. The mortgage is also secured by the HSM Cummings land.
Competition. Identifying, completing and realizing on real estate
investments has from time to time been highly competitive, and involves a high
degree of uncertainty. ART competes for investments with many public and private
real estate investment vehicles, including financial institutions (such as
mortgage banks, pension funds and real estate investment trusts) and other
institutional investors, as well as individuals. Many of those with whom ART
competes for investments and its services are far larger than ART, may have
greater financial resources than ART and may have management personnel with more
experience than the officers of ART.
MORTGAGE LOANS
In addition to real estate, a portion of ART's assets have been and are
expected to continue to be invested in mortgage notes receivable, principally
those secured by income-producing real estate. ART's mortgage notes receivable
consist of first, wraparound, and junior mortgage loans.
Types of Mortgage Activity. In addition to originating its own mortgage
loans, ART has acquired existing mortgage notes either directly from builders,
developers or property owners, or through mortgage banking firms, commercial
banks or other qualified brokers. BCM, an affiliate of and advisor to ART,
services ART's mortgage notes receivable in its capacity as a mortgage servicer.
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Types of Properties Subject to Mortgages. The types of properties
securing ART's mortgage notes receivable portfolio at June 30, 1998 consisted of
an office building, single-family residences and developed land. The ART Board
may alter the types of properties subject to mortgages in which ART invests
without a vote of ART's stockholders.
At June 30, 1998, the obligors on $268,000 or 32% of ART's mortgage
notes receivable portfolio were affiliates of ART. Also at that date, $499,000
or 59% of ART's mortgage notes receivable portfolio was in default.
A summary of the activity in ART's mortgage notes receivable portfolio
during 1997 and through June 30, 1998 is as follows:
<TABLE>
<S> <C>
Loans in mortgage notes receivable portfolio
at January 1, 1997.................. 13*
Loans funded........................... 1
Loans paid in full..................... (5)
Loans sold............................. (2)
Loan foreclosed........................ (1)
------
Loans in mortgage notes receivable portfolio
at June 30, 1998................... 6*
</TABLE>
- ---------------
* Includes a mortgage note receivable collateralized by two condominium mortgage
loans at January 1, 1997 and one condominium mortgage loan at June 30, 1998.
During 1997, ART collected $2.6 million in interest and $4.5 million in
principal on its mortgage notes receivable and sold two mortgage notes
receivable for a total of $17.0 million. During the first six months of 1998,
ART collected $381,000 in interest and $7.7 million in principal on its mortgage
notes receivable. ART plans, for the foreseeable future, to hold, to the extent
its liquidity permits, rather than to sell in the secondary market, the
remainder of the mortgage notes in its portfolio.
First Mortgage Loans. ART may invest in first mortgage loans, with
either short-, medium- or long-term maturities. First mortgage loans generally
provide for level periodic payments of principal and interest sufficient to
substantially repay the loan prior to maturity, but may involve interest-only
payments or moderate or negative amortization of principal and a "balloon"
principal payment at maturity. With respect to first mortgage loans, it is ART's
general policy to require that the borrower provide a mortgagee's title policy
or an acceptable legal opinion of title as to the validity and the priority of
the mortgage lien over all other obligations, except liens arising from unpaid
property taxes and other exceptions normally allowed by first mortgage lenders
in the relevant area. ART may grant to other lenders participations in first
mortgage loans originated by ART.
The following discussion briefly describes the events that affected
previously funded first mortgage loans during 1997 and through June 30, 1998.
The borrower on a $1.7 million mortgage note receivable secured by land
in Osceola, Florida, failed to pay the note on its November 1, 1993 maturity.
ART instituted foreclosure proceedings and was awarded summary judgment in
January 1994. During 1994 and 1995, the borrower paid ART a total of $270,000 in
nonrefundable fees to delay foreclosure of the property until April 24, 1995. On
April 21, 1995, the borrower filed for bankruptcy protection. On August 24,
1996, the bankruptcy court's stay was lifted allowing ART to proceed with
foreclosure. The note had a principal balance of $1.6 million at December 31,
1996. On February 21, 1997, ART sold its note for $1.8 million in cash. ART
recognized a gain of $171,000 on the sale.
Wraparound Mortgage Loans. ART may invest in wraparound mortgage loans,
sometimes called all-inclusive loans, made on real estate subject to prior
mortgage indebtedness. A wraparound mortgage note is a mortgage note having an
original principal amount equal to the outstanding balance under the prior
existing mortgage loan plus the amount actually advanced under the wraparound
mortgage loan. Wraparound mortgage loans may provide for full,
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partial or no amortization of principal. ART's policy is to make wraparound
mortgage loans in amounts and on properties as to which it would otherwise make
a first mortgage loan.
The following discussion briefly describes events that affected
previously funded wraparound mortgage loans during 1997 and through June 30,
1998.
In September 1997, ART sold its $16.3 million wraparound mortgage note
receivable secured by the Las Vegas Plaza Shopping Center in Las Vegas, Nevada,
for $15.0 million. ART received net cash of $5.5 million after the payoff of
$9.2 million in debt and the payment of various closing costs associated with
the sale. ART incurred no loss on the sale in excess of the reserve previously
established.
In December 1997, ART sold the Pin Oak Land, a 567.6 acre parcel of
undeveloped land in Houston, Texas, for $11.4 million. In connection with such
sale, ART provided $6.9 million in short term purchase money financing that was
paid in full in January 1998.
In August 1990, ART obtained the Continental Hotel and Casino in Las
Vegas, Nevada, through foreclosure subject to first and second lien mortgages
totaling $10.0 million. In June 1992, ART sold the hotel and casino for among
other consideration, a $22.0 million wraparound mortgage note receivable. In
March 1997, the wraparound note was modified and extended in exchange for, among
other things, the borrower's commitment to invest $2.0 million in improvements
to the hotel and casino within four months of the March 1997 modification and an
additional $2.0 million prior to December 1997. The borrower stopped making the
required mortgage payments in April 1997 and did not make the required
improvements. In December 1997, the borrower filed for bankruptcy protection. In
February 1998, a hearing was held to allow ART to foreclose on the hotel and
casino. At the hearing, the court allowed the borrower 90 days to submit a
reorganization plan and beginning March 2, 1998 and required the borrower to
make monthly payments of $175,000 to ART. ART received the first such payment on
March 2, 1998. ART's wraparound mortgage note receivable had a principal balance
of $22.7 million at March 31, 1998. In April 1998, the bankruptcy court allowed
ART to foreclose on the hotel and casino. ART did not incur a loss on
foreclosure as the fair value of the property exceeded the carrying value of
ART's mortgage note receivable.
Junior Mortgage Loans. ART may invest in junior mortgage loans. Such
notes are secured by mortgages that are subordinate to one or more prior liens
either on the fee or a leasehold interest in real estate. Recourse on such notes
ordinarily includes the real estate which secures the note, other collateral and
personal guarantees of the borrower.
The following discussion briefly describes the junior mortgage loans
funded in 1997 and the events that affected previously funded junior mortgage
notes during 1997 and the first six months of 1998.
At December 31, 1996, ART held a junior mortgage note receivable
secured by the Williamsburg Hospitality House in Williamsburg, Virginia, that is
subject to a first lien mortgage of $12.0 million. In September 1997, ART
foreclosed on its $8.9 million junior mortgage note receivable. ART obtained the
property at foreclosure subject to the first lien mortgage of $12.0 million. ART
incurred no loss on foreclosure as the fair value of the property exceeded the
carrying value of its mortgage note receivable and assumed mortgage debt.
In May 1997, the $3.7 million mortgage note receivable secured by an
apartment complex in Merrillville, Indiana, owned by a subsidiary of Davister
Corp. ("Davister"), a general partner in a partnership that owns approximately
15.6% of ART's outstanding shares of Common Stock, was paid in full.
In November 1994, ART and an affiliate of BCM, sold five apartment
complexes to a newly formed limited partnership in exchange for, among other
consideration, two mortgage notes receivable secured by one of the properties
sold. ART had the option to reacquire the properties at any time after September
1997 for their original sales prices. In February 1998, ART reacquired three of
the properties, one of which was subject to the two mortgage notes receivable,
which were discharged upon ART's reacquisition of the property.
In December 1997, ART sold two parcels of Valley Ranch land, totaling
25.1 acres, for $3.3 million. In conjunction with the sale, ART provided
$891,000 in purchase money financing. The purchase money financing bore interest
at 10.0% per annum and matured in January 1998. ART received $624,000 paydown on
the purchase money financing in January, with the remainder being deferred until
a zoning issue is resolved.
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INVESTMENTS IN REAL ESTATE INVESTMENT TRUSTS AND REAL ESTATE PARTNERSHIPS
ART's investment in real estate entities at June 30, 1998 includes (i)
equity securities of three publicly traded real estate investment trusts
(collectively the "Affiliated REITs"), CMET, IORI and TCI, (ii) units of limited
partner interest of NRLP, (iii) a general partner interest in NRLP and NOLP,
through its 96% limited partner interest in SAMLP, the general partner of NRLP
and NOLP, and (iv) interests in real estate joint venture partnerships. Gene E.
Phillips, Chairman of the Board and a Director of ART until November 16, 1992,
served until May 15, 1996 as a director and Chief Executive Officer of SAMI, a
company owned by BCM, an affiliate of and advisor to ART, that serves as SAMLP's
managing general partner. Randall M. Paulson, Executive Vice President of ART,
serves as the sole director and as President of SAMI. Gene E. Phillips is also a
general partner of SAMLP. BCM, an affiliate of and advisor to ART also, serves
as advisor to the Affiliated REITs, and performs certain administrative and
management functions for NRLP and NOLP on behalf of SAMLP.
Since acquiring its initial investments in the equity securities of the
Affiliated REITs and NRLP in 1989, ART has made additional investments in the
equity securities of these entities through private and open market purchases.
ART's cost with respect to shares of the Affiliated REITs at June 30, 1998
totaled $21.6 million, and its cost with respect to units of limited partner
interest in NRLP totaled $23.3 million. The aggregate carrying value (cost plus
or minus equity in income or losses and less distributions received) of such
equity securities of the Affiliated REITs and NRLP was $49.7 million at June 30,
1998 and the aggregate market value of such equity securities was $120.9
million. The aggregate investee book value of the equity securities of the
Affiliated REITs based upon the June 30, 1998 financial statements of each such
entity was $70.6 million and ART's share of NRLP's revaluation equity at June
30, 1998 was $198.9 million.
The ART Board has authorized the expenditure by ART of up to an
aggregate of $35.0 million to acquire, in open market purchases, units of NRLP
and shares of the Affiliated REITs, excluding private purchase transactions
which were separately authorized. As of June 30, 1998, ART had expended $4.0
million to acquire units of NRLP and an aggregate of $5.6 million to acquire
shares of the Affiliated REITs, in open market purchases, in accordance with
these authorizations. ART expects to make additional investments in the equity
securities of the Affiliated REITs and NRLP.
At June 30, 1998, SAMLP, the general partner of NRLP and NOLP, owned
26,475 shares of TCI. ART owns a 96% limited partnership interest in SAMLP which
ART consolidates for financial statement purposes.
The purchases of the equity securities of the Affiliated REITs and NRLP
were made for the purpose of investment and were based principally on the
opinion of ART's management that the equity securities of each were and are
currently undervalued. The determination by ART to purchase additional equity
securities of the Affiliated REITs and NRLP is made on an entity-by-entity basis
and depends on the market price of each entity's equity securities relative to
the value of its assets, the availability of sufficient funds and the judgment
of ART's management regarding the relative attractiveness of alternative
investment opportunities. Substantially all of the equity securities of the
Affiliated REITs and NRLP owned by ART are pledged as collateral for borrowings.
Pertinent information regarding ART's investment in the equity securities of the
Affiliated REITs and NRLP, at June 30, 1998, is summarized below (dollars in
thousands):
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<TABLE>
<CAPTION>
Percentage Carrying Equivalent
of ART's Value of Investee Market Value
Ownership at Investment at Book Value at of Investment at
Investee June 30, 1998 June 30, 1998 June 30, 1998 June 30, 1998
- -------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
NRLP....... 54.4% $ 21,263 $ * $ 68,608
CMET....... 40.9 16,668 36,643 27,910
IORI....... 29.7 3,448 7,352 5,210
TCI........ 31.0 8,330 26,602 19,210
--------- --------
49,709 $120,929
========
General partner interest in
NRLP and NOLP 6,041
Other 5,921
$ 61,671
=========
</TABLE>
- ---------------
* At June 30, 1998, NRLP reported a deficit partners' capital. ART's
share of NRLP's revaluation equity at December 31, 1997, was $198.9
million. Revaluation equity is defined as the difference between the
appraised value of the partnership's real estate, adjusted to reflect
the partnership's estimate of disposition costs, and the amount of the
mortgage notes payable and accrued interest encumbering such property
as reported in NRLP's Annual Report on Form 10-K for the year ended
December 31, 1997.
Each of the Affiliated REITs and NRLP own a considerable amount of real
estate, much of which, particularly in the case of NRLP, has been held for many
years. Because of depreciation, these entities may earn substantial amounts in
periods in which they sell real estate and will probably incur losses in periods
in which they do not. ART's reported income or loss attributable to these
entities will differ materially from its cash flow attributable to them. ART
does not have a controlling equity interest in any of the Affiliated REITs and
therefore it cannot, acting by itself, determine either the individual
investments or the overall investment policies of such investees. However, due
to ART's equity investments in, and the existence of common officers with, each
of the Affiliated REITs, and that the Affiliated REITs have the same advisor as
ART and that Mr. Randall M. Paulson, an Executive Vice President of ART, is also
the President of the Affiliated REITs and BCM, an affiliate of and advisor to
ART, and is the President and sole director of SAMI, a company owned by BCM,
that is the managing general partner of SAMLP, ART may be considered to have the
ability to exercise significant influence over the operating and investing
policies of these entities. ART accounts for its investment in these entities
using the equity method. Under the equity method, ART recognizes its
proportionate share of the income or loss from the operations of these entities
currently, rather than when realized through dividends or on sale. ART continues
to account for its investment in NRLP under the equity method due to the pending
resignation of SAMLP as general partner of NRLP and NOLP, as more fully
discussed in "NRLP" below. The carrying value of ART's investment in these
entities, as set forth in the table above, is the original cost of each such
investment adjusted for ART's proportionate share of each entity's income or
loss and distributions received.
The difference between the carrying value of ART's investment and the
equivalent investee book value is being amortized over the life of the
properties held by each investee.
ART's management continues to believe that the market value of each of
the Affiliated REITs and NRLP undervalues their assets and ART may, therefore,
continue to increase its ownership in these entities in 1998.
The following is a summary description of each of NRLP and the
Affiliated REITs, based upon information publicly reported by such entities.
NRLP. NRLP is a publicly traded master limited partnership which was
formed under the Delaware Uniform Limited Partnership Act on January 29, 1987.
It commenced operations on September 18, 1987 when, through NOLP, it acquired
all of the assets, and assumed all of the liabilities, of 35 public and private
limited partnerships. NRLP is the sole limited partner of NOLP and owns 99% of
the beneficial interest in NOLP. NRLP and NOLP operate as an
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economic unit and, unless the context otherwise requires, all references herein
to the Partnership shall constitute references to NRLP and NOLP as a unit. The
general partner and owner of 1% of the beneficial interest in each of NRLP and
NOLP is SAMLP, a Delaware limited partnership.
SAMI, a company owned by BCM, is the managing general partner of SAMLP.
In November 1992, NOLP transferred 52 apartment complexes and a wraparound
mortgage note receivable to Garden Capital, L.P. ("GCLP"), a Delaware limited
partnership in which NOLP owns a 99.3% limited partner interest. Concurrent with
such transfer, GCLP refinanced all of the mortgage debt associated with the
transferred properties and the wraparound mortgage note under a new first
mortgage in the then principal amount of $223.0 million.
In July 1998, GCLP commenced a three-phase refinancing whereby GCLP is
refinancing the mortgage debt secured by 50 of the properties then held by it.
Phase I consisted of 18 of the properties, located in Arizona, Florida,
Illinois, Indiana, Kansas, Missouri, Oklahoma and Texas, which were refinanced
in the total amount of $150.0 million. Phase II consists of a bridge financing
of 29 of the properties, located in Arizona, Arkansas, California, Colorado,
Florida, Georgia, Kansas, Louisiana, Michigan, Missouri, Nebraska, Ohio,
Oklahoma, Tennessee, Texas and Virginia, which were refinanced in the total
amount of $86.2 million. Three additional properties are unencumbered. GCLP
expects to complete the third and final Phase in November when the Phase II
bridge loan will be converted to long term financing.
ART is a limited partner in SAMLP, holding a 96% limited partner
interest therein, which ART consolidates for financial statement purposes.
SAMI, as the managing general partner of SAMLP, has discretion in
determining methods of obtaining funds for the Partnership's operations, and the
acquisition and disposition of its assets. The Partnership's governing documents
place no limitation on the amount of leverage that the Partnership may incur
either in the aggregate or with respect to any particular property or other
investment. At December 31, 1997, the aggregate loan-to-value ratio of the
Partnership's real estate portfolio was 43.4% computed on the basis of the ratio
of total property-related debt to aggregate appraised values. As of December 31,
1997 NRLP owned 79 properties located in 22 states. These properties consisted
of 66 apartment complexes comprising 16,538 units, five office buildings with an
aggregate of 367,271 square feet and eight shopping centers with an aggregate of
1.1 million square feet.
For the year ended December 31, 1997, the Partnership reported net
income of $8.7 million compared to a net loss of $375,000 for the year ended
December 31, 1996. The Partnership had income from operations, prior to gains on
sale of real estate, of $362,000 for the year ended December 31, 1997 compared
to a loss of $436,000 for the year ended December 31, 1996. The improvement in
the Partnership's 1997 income from operations is due to an average 3.0% increase
in average rental rates at the Partnership's apartment complexes and an average
1.0% increase in rental rates at the Partnership's commercial properties coupled
with an average 1.0% increase in occupancy at the Partnership's apartment
complexes and an average 3.0% increase in occupancy at the Partnership's
commercial properties.
For the six months ended June 30, 1998, the Partnership reported net
income of $22.6 million compared to $3.1 million for the six months ended June
30, 1997. The Partnership's net income for the six months ended June 30, 1998,
includes gains on the sale of real estate of $28.6 million compared to $3.6
million for the six months ended June 30, 1997.
The Partnership has paid quarterly distributions to unitholders since
the fourth quarter of 1993. In 1997, ART received a total of $1.4 million in
distributions from the Partnership and accrued an additional $5.5 million that
was received in January 1998.
The Partnership, SAMLP and Gene E. Phillips, were among the defendants
in a class action lawsuit arising out of the formation of the Partnership. An
agreement settling such lawsuit as to the above named defendants, (the "Moorman
Settlement Agreement"), became effective on July 5, 1990. The Moorman Settlement
Agreement provided for, among other things, the appointment of an oversight
committee for the Partnership (the "NRLP Oversight Committee"); the
establishment of specified annually increasing targets for a five-year period
relating to the price of NRLP units of limited partner interest.
The Moorman Settlement Agreement provides for the resignation and
replacement of SAMLP as general partner if the unit price targets are not met
for two consecutive anniversary dates. NRLP did not meet the unit price
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targets for the first and second anniversary dates. On July 8, 1992, SAMLP
notified the NRLP Oversight Committee of the failure to meet the unit price
targets for two successive years and that it expects to resign as general
partner of NRLP and NOLP.
The withdrawal of SAMLP as general partner would require the
Partnership to purchase SAMLP's general partner interest (the "Redeemable
General Partner Interest") at its then fair value, and to pay certain fees and
other compensation as provided in the partnership agreement. SAMI, the managing
general partner of SAMLP, has calculated the fair value of such Redeemable
General Partner Interest to be $49.6 million at June 30, 1998 before reduction
for the principal balance ($4.2 million at June 30, 1998) and accrued interest
($7.8 million at June 30, 1998) on the note receivable from SAMLP for its
original capital contribution to the Partnership.
On December 15, 1997, NRLP, SAMLP, the NRLP Oversight Committee, Joseph
B. Moorman, Invenex and the Counsel for the plaintiff class members executed an
Agreement for Establishment of Class Distribution Fund and Election of Successor
General Partner (the "Resolution Agreement") which provides for the nomination
of an entity affiliated with SAMLP to be the successor general partner of the
Partnership, for the establishment of a fund for the benefit of the plaintiff
class members consisting of cash and properties owned by the Partnership and for
the resolution of all related matters under the Moorman Settlement Agreement.
The Resolution Agreement was submitted to the Judge appointed to
supervise the class action settlement (the "Supervising Judge") and on February
11, 1998, the Supervising Judge entered an order granting preliminary approval
of the Resolution Agreement. On July 15, 1998, NRLP, SAMLP and the NRLP
Oversight Committee executed an Agreement for Cash Distribution and Election of
Successor General Partner (the "Cash Distribution Agreement") which provides for
the nomination of an entity affiliated with SAMLP to be the successor general
partner of NRLP, for the distribution of $11.4 million to the plaintiff class
members and for the resolution of all related matters under the Moorman
Settlement Agreement. The Cash Distribution Agreement was submitted to the
Supervising Judge on July 23, 1998 as an alternative to the Resolution
Agreement. On July 27, 1998, Invenex withdrew the proposal for approval of the
Resolution Agreement. On August 4, 1998, the Supervising Judge entered an order
granting preliminary approval of the Cash Distribution Agreement and directed
that a notice be prepared to be mailed to the plaintiff class members describing
the Cash Distribution Agreement. In addition, the Supervising Judge scheduled
October 16, 1998 as the date for the final hearing on any objections to the Cash
Distribution Agreement.
Pursuant to the order entered on August 4, 1998, $11.4 million will be
deposited by NRLP into an escrow account following the final approval by the
Supervising Judge of the Cash Distribution Agreement. The actual distribution of
the cash to the plaintiff class members will occur immediately following the
election and taking office of the successor general partner. The distribution of
the cash shall be made to the NRLP plaintiff class members pro rata based upon
the formation of NRLP in 1987. The distribution of cash will be under the
control of an independent settlement administrator.
Upon final approval by the Supervising Judge, the proposal to elect the
successor general partner will be submitted to the unitholders of NRLP for a
vote. All units of NRLP owned by affiliates of SAMLP (approximately 60.5% of the
outstanding limited partner units of NRLP as of July 31, 1998) will be voted pro
rata with the vote of the other limited partners.
Upon approval by the NRLP unitholders, SAMLP shall withdraw as general
partner and the successor general partner shall take office. If the required
approvals are obtained, it is anticipated that the successor general partner
will be elected and take office during the fourth quarter of 1998. Upon the
election and taking office of the successor general partner and the distribution
of the cash to the plaintiff class members, the Moorman Settlement Agreement and
the NRLP Oversight Committee shall be terminated.
Under the Cash Distribution Agreement, SAMLP has agreed to waive its
right under the Settlement Agreement to receive any payment from NRLP for its
Redeemable General Partner Interest upon its resignation and the election of a
successor general partner. In addition, pursuant to the Cash Distribution
Agreement, the NRLP partnership agreement will be amended to provide that, upon
voluntary resignation of the general partner, the resigning general partner
shall not be entitled to the repurchase of its general partner interest under
Paragraph 17.9 of the NRLP partnership agreement.
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Under the Cash Distribution Agreement, the successor general partner
will assume liability for the note receivable from SAMLP for its capital
contribution to NRLP. In addition, the successor general partner will assume
liability for a note receivable which will require the repayment to NRLP of the
total amount of cash distributed by NRLP under the Cash Distribution Agreement.
This note will require repayment over a ten-year period, bear interest and be
guaranteed by ART, which (as of July 31, 1998) is the owner of a 96% limited
partner interest in SAMLP and approximately 54% of the outstanding limited
partner units.
In the event that the Cash Distribution Agreement is disapproved by the
Supervising Judge or does not become effective pursuant to the provisions
thereof, then the parties shall be restated to their respective positions as of
December 14, 1997, all of the provisions of the Cash Distribution Agreement
shall be void, and the Moorman Settlement Agreement shall remain in full force
and effect.
In August 1996, ART consolidated its existing NRLP margin debt held by
various brokerage firms into a single margin loan. ART has pledged 3,349,169 of
its NRLP units as security for such margin loan which had a principal balance of
$24.0 million at July 31, 1998. The margin loan is due and payable. ART has
received a commitment from a financial institution for a new loan in a principal
amount in excess of the current outstanding loan balance. ART has notified the
existing margin lender that it intends to pay such loan in full prior to August
31, 1998.
CMET. CMET is a California business trust which was organized on August
27, 1980 and commenced operations on December 3, 1980. CMET's primary business
is investing in real estate through direct equity investments and partnerships
and financing real estate and real estate-related activities through investments
in mortgage notes. CMET holds equity investments in apartment complexes and
commercial properties (office buildings, industrial warehouses and shopping
centers) throughout the continental United States. CMET's apartment complexes
and commercial properties are concentrated in the Southeast, Southwest and
Midwest regions of the continental United States. At December 31, 1997, CMET
owned 57 income producing properties located in 14 states consisting of 34
apartment complexes comprising of 6,173 units, ten office buildings with an
aggregate of 1.2 million square feet, 11 industrial warehouses with an aggregate
of 1.6 million square feet and two shopping centers with an aggregate of 247,196
square feet. CMET also holds mortgage notes receivable secured by real estate
located in the Southeast, Southwest and Midwest regions of the continental
United States, with a concentration in the Southeast and Southwest regions.
For the year ended December 31, 1997, CMET reported net income of $4.2
million compared to $8.7 million for the year ended December 31, 1996. CMET's
1997 net income includes gains on the sale of real estate of $8.2 million,
whereas its 1996 net income included gains on the sale of real estate and
marketable equity securities of $10.1 million and an extraordinary gain of
$812,000. At December 31, 1997, CMET had total assets of $299.4 million, which
consisted of $250.1 million of real estate held for investment, $11.6 million of
real estate held for sale, $3.6 million of notes and interest receivable, $31.0
million of investments in partnerships and other assets and $3.1 million in cash
and cash equivalents.
For the six months ended June 30, 1998, CMET reported $2.4 million
compared to $4.8 million for the six months ended June 30, 1997. CMET's net
income for the six months ended June 30 1998, includes gains on the sale of real
estate of $5.4 million compared to $6.8 million of the six months ended June 30,
1997.
CMET has paid quarterly distributions since the first quarter of 1993.
ART received a total of $885,000 in distributions from CMET in 1997.
IORI. IORI is a Nevada corporation which was originally organized on
December 14, 1984 as a California business trust and commenced operations on
April 10, 1985. Like CMET, IORI's primary business is investing in real estate
through direct equity investments and partnerships and financing real estate and
real estate-related activities through investments in mortgage notes. IORI holds
equity investments in apartment complexes and commercial properties (office
buildings) in the Pacific, Southeast, Southwest, and Midwest regions of the
continental United States. IORI holds one mortgage note receivable which is
secured by a shopping center in the Midwest region. At December 31, 1997, IORI
owned 14 income producing properties located in five states. These properties
consisted of four apartment complexes comprising 654 units and ten office
buildings with an aggregate of 611,009 square feet.
For the year ended December 31, 1997, IORI reported net income of $3.3
million as compared with a net loss of $568,000 for the year ended December 31,
1996. IORI's net income in 1997, is attributable to $4.0 million of gains
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on sale of real estate. At December 31, 1997, IORI had total assets of $90.3
million, which consisted of $81.9 million in real estate held for investment,
$2.0 million in notes and interest receivable, $5.3 million in investments in
partnerships and other assets and $1.1 million in cash and cash equivalents.
For the six months ended June 30, 1998, IORI reported net income of
$43,000 compared to a net income of $3.1 million for the six months ended June
30, 1997. IORI's net income for the six months ended June 30, 1997 included
gains on the sale of real estate of $3.3 million.
IORI has paid quarterly dividends since the first quarter of 1993. ART
received a total of $184,000 in dividends from IORI in 1997.
TCI. TCI is a Nevada corporation which was originally organized on
September 6, 1983, as a California business trust, and commenced operations on
January 31, 1984. TCI also has investment policies similar to those of CMET and
IORI. TCI holds equity investments in a hotel, apartment complexes and
commercial properties (office buildings, industrial warehouses and shopping
centers) throughout the continental United States with a concentration in the
Northeast, Southeast and Southwest regions. At December 31, 1997, TCI owned 56
income producing properties located in 14 states. These properties consisted of
28 apartment complexes comprising 5,174 units, 14 office buildings with an
aggregate of 1.3 million square feet, 7 industrial warehouses with an aggregate
of 1.7 million square feet, 6 shopping centers with an aggregate of 857,750
square feet and one hotel with 60 rooms. TCI also holds mortgage notes
receivable secured by real estate located in the Northeast, Midwest, Southeast
and Southwest regions of the continental United States, with a concentration in
the Northeast and Southeast regions.
For the year ended December 31, 1997, TCI reported net income of $12.6
million as compared with a net loss of $7.8 million for the year ended December
31, 1996. TCI's net income for 1997 includes gains on the sale of real estate of
$21.4 million whereas its net loss for 1996 included gains on the sale of real
estate of $1.6 million and extraordinary gains of $256,000. At December 31,
1997, TCI had total assets of $319.5 million, which consisted of $270.2 million
in real estate held for investment, $5.0 million in real estate held for sale,
$15.6 million in investments in real estate entities, $4.0 million in notes and
interest receivable and other assets and $24.7 million in cash and cash
equivalents. At December 31, 1997, TCI owned 341,500 shares of IORI's common
stock, approximately 22.5% of IORI's shares then outstanding.
For the six months ended June 30, 1998, TCI reported net income of
$626,000 compared to a net loss of $1.2 million for the six months ended June
30, 1997. TCI's net income for the six months ended June 30, 1998 includes gains
on the sale of real estate of $2.1 million compared to $1.5 million for the six
months ended June 30, 1997.
TCI has paid quarterly dividends since the fourth quarter of 1995. ART
received $333,000 in dividends from TCI in 1997 and accrued an additional $1.2
million in dividends that was received in January 1998.
SAMLP. As discussed in more detail under "Real Estate" above, ART owns
a 96% limited partner interest in SAMLP. ART consolidates SAMLP for financial
statement purposes. As a limited partner, ART has no role in the management of
the business affairs of SAMLP. Rather, SAMI, the managing general partner of
SAMLP, has full and complete authority to manage SAMLP.
River Trails II. In January 1992, ART entered into a partnership
agreement with an entity affiliated with the Nanook Limited Partner, to acquire
287 developed residential lots adjacent to ART's other residential lots in Fort
Worth, Texas. The partnership agreement designates ART as managing general
partner. The partnership agreement also provides each of the partners with a
guaranteed 10% return on their respective investments. Through December 31,
1997, 214 residential lots had been sold. In the first six months of 1998, an
additional 12 lots were sold. At June 30, 1998, 61 lots remained to be sold. In
1998, the partnership recorded a gain of $101,000 on such lot sales. During
1997, each partner received $21,000 in return of capital distributions from the
partnership and $12,000 in profit distributions.
No such distributions have been received in 1998.
R. G. Bond, Ltd. In June 1995, ART purchased the corporate general
partner of a limited partnership which owns apartment complexes in Illinois,
Florida and Minnesota, with a total of 900 units. The corporate general partner
has a 1% interest in the partnership which is subordinated to a priority return
of the limited partner.
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Campbell Center Associates, Ltd. In April 1996, ART purchased a 28%
general partner interest in Campbell Center Associates, Ltd. ("Campbell
Associates") which in turn has a 56.25% interest in Campbell Centre Joint
Venture, which owned at the time a 413,175 square foot office building in
Dallas, Texas. The purchase price of the general partner interest was $550,000
in cash and a $500,000 note, which bears interest at 8% per annum, requires
monthly interest only payments and matures April 2000. In January 1997, ART
exercised its option to purchase an additional 28% general partner interest in
Campbell Associates. The purchase price was $300,000 in cash and a $750,000
note, which bears interest at 8% per annum, requires monthly interest only
payments and matures in April 2000. In July 1997, ART purchased an additional 9%
general partner interest in Campbell Associates for $868,000 in cash. In June
1998, ART purchased the remaining 35% general partner interest in Campbell
Associates for $2.1 million in cash. Also in June 1998, Campbell Centre Joint
Venture sold the office building for $32.1 million in cash. Campbell Associates,
as a partner, received net cash of $13.2 million from the sales proceeds and
escrowed an additional $190,000 for pending parking lot issues. Campbell
Associates recognized a gain of $8.2 million on the sale.
Highway 380/Preston Partners, Ltd. In June 1996, a newly formed limited
partnership, of which ART is 1% general partner, purchased 580 acres of
undeveloped land in Collin County, Texas for $5.7 million in cash. ART
contributed $100,000 in cash to the partnership with the remaining $5.6 million
being contributed by the limited partner. The partnership agreement designates
ART as the managing general partner. In September 1996, the partnership obtained
financing of $2.8 million secured by the 580 acres of land and personal
guarantees of the limited partner. The loan bore interest at a variable rate,
required monthly payments of interest only and matured in September 1998. The
partnership agreement also provides that the limited partner receive a 12%
preferred cumulative return on his investment before any sharing of partnership
profits occurs. In April 1997, the partnership sold a 35.0 acre tract for $1.3
million in cash. The net sales proceeds of $1.2 million were distributed to the
limited partner in accordance with the partnership agreement. The partnership
recognized a gain of $884,000 on the sale. In July 1997, the partnership sold a
24.6 acre tract for $800,000 in cash. In accordance with the terms of the term
loan secured by such property, $197,000 of the net sales proceeds were used to
paydown such term loan. The remaining $545,000 was distributed to the limited
partner in accordance with the partnership agreement. The partnership recognized
a gain of $497,000 on the sale. In September 1997, the partnership sold a 77.2
acre tract for $1.5 million in cash. In accordance with the terms of the term
loan secured by such property, the net sales proceeds were used to paydown such
loan. The partnership recognized a gain of $704,000 on the sale. In October
1997, the partnership sold a 96.5 acre tract for $1.7 million in cash. In
accordance with the terms of the term loan secured by such property $548,000 of
the net sales proceeds were used to payoff such loan. The remaining $1.1 million
was distributed to the limited partner in accordance with the partnership
agreement. The partnership recognized a gain of $691,000 on the sale. In
December 1997, the partnership sold a 94.4 acre tract for $2.5 million in cash.
Of the net sales proceeds, $1.8 million was distributed to the limited partner
and $572,000 was distributed to ART as general partner in accordance with the
partnership agreement. The partnership recognized a gain of $1.4 million on the
sale. In January 1998, the partnership sold a 155.4 acre tract for $2.9 million.
The partnership received $721,000 in cash and provided financing of an
additional $2.2 million. Of the net sales proceeds, $300,000 was distributed to
the limited partner and $300,000 was distributed to ART as general partner in
accordance with the partnership agreement. The seller financing bore interest at
12% per annum, required monthly payments of interest only and matured in July
1998. The seller financing was paid off at maturity, with the net proceeds being
distributed $1.1 million to the limited partner and $1.1 million to the Company
as general partner. The partnership recognized a gain of $1.2 million on the
sale.
Elm Fork Branch Partners, Ltd. In September 1997, a newly formed
limited partnership of which ART is a 1% general partner and 21.5% limited
partner, purchased a 422.4 acre parcel of undeveloped land in Denton County,
Texas, for $16.0 million in cash. ART contributed $3.6 million in cash to the
partnership with the remaining $12.4 million being contributed by the other
limited partners. The partnership agreement designates ART as the managing
general partner. In September 1997, the partnership obtained mortgage financing
of $6.5 million secured by the 422.4 acres of land. The mortgage bears interest
at 10% per annum, requires monthly payments of interest only and matures in
September 2001. The net financing proceeds were distributed to the partners, ART
receiving repayment of $2.9 million of its initial investment. The partnership
agreement also provides that the limited partners receive a 12% preferred
cumulative return on their investment before any sharing of partnership profits
occurs. The Nanook Limited Partner is also a limited partner in the partnership.
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[Remainder of Page Intentionally Left Blank]
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SELECTED FINANCIAL DATA OF ART
<TABLE>
<CAPTION>
For the Years Ended December 31,
------------------------------------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ------------ ------------
(dollars in thousands, except per share)
<S> <C> <C> <C> <C> <C>
EARNINGS DATA
Revenue .................................. $ 49,971 $ 26,979 $ 22,952 $ 23,070 $ 13,427
Expense .................................. 83,355 38,577 28,314 26,490 18,128
------------ ------------ ------------ ------------ ------------
(Loss) from operations ................... (33,384) (11,598) (5,362) (3,420) (4,701)
Equity in income (losses)
of investees ....................... 10,660 2,004 (851) 292 (4,014)
Gain on sale of real estate .............. 20,296 3,659 2,594 379 481
------------ ------------ ------------ ------------ ------------
(Loss) before extraordinary
gain ............................... (2,428) (5,935) (3,619) (2,749) (8,234)
Extraordinary gain ....................... -- 381 783 323 3,807
------------ ------------ ------------ ------------ ------------
Net (loss) ............................... (2,428) (5,554) (2,836) (2,426) (4,427)
Preferred Dividend
Requirement ........................ (206) (113) -- -- --
Redeemable Common Stock,
accretion of discount .............. -- -- -- -- (129)
------------ ------------ ------------ ------------ ------------
(Loss) applicable to
Common Shares ...................... $ (2,634) $ (5,667) $ (2,836) $ (2,426) $ (4,556)
============ ============ ============ ============ ============
PER SHARE DATA
(Loss) before extraordinary
gain ............................ $ (.22) $ (.46) $ (.31) $ (.23) $ (.68)
Extraordinary Gain ....................... -- .03 .07 .03 .31
------------ ------------ ------------ ------------ ------------
Net (loss) ............................... (.22) (.43) (.24) (.20) (.37)
Redeemable Common Stock,
accretion of discount .............. -- -- -- -- (.01)
------------ ------------ ------------ ------------ ------------
(Loss) applicable to
Common shares ...................... $ (.22) $ (.43) $ (.24) $ (.20) $ (.38)
============ ============ ============ ============ ============
Dividends per share ...................... $ .20 $ .15 $ -- $ -- $ --
Weighted average shares
outstanding ........................ 11,710,013 12,765,082 11,716,656 12,208,876 12,101,100
============ ============ ============ ============ ============
</TABLE>
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<PAGE> 94
<TABLE>
<CAPTION>
December 31,
----------------------------------------------------------------------
1997 1996 1995 1994 1993
---------- ---------- ---------- ---------- ----------
(dollars in thousands, except per share)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Notes and interest
receivable, net ....................... $ 25,526 $ 48,485 $ 49,741 $ 45,664 $ 51,769
Real estate, net ........................... 302,453 119,035 59,424 47,526 52,437
Total assets ............................... 433,799 235,037 162,033 137,362 139,861
Notes and interest
payable ............................... 261,896 127,863 61,163 45,695 53,693
Margin borrowings .......................... 53,376 40,044 34,017 26,391 16,147
Stockholders'
equity ................................ 63,453 47,786 53,058 55,894 56,120
Book value per
share ................................. $ 3.86 $ 3.41 $ 4.53 $ 4.77 $ 5.56
</TABLE>
- ------------
Shares and per share data have been adjusted for the 2 for 1 forward Common
Stock splits effected January 2, 1996 and February 17, 1997.
<TABLE>
<CAPTION>
For the Six For the Six
Months Ended Months Ended
June 30, 1998 June 30, 1997
--------------- ---------------
EARNINGS DATA (dollars in thousands, except per share)
<S> <C> <C>
Revenues ................................................ $ 40,939 $ 17,166
Expenses ................................................ 65,574 27,755
--------------- ---------------
(Loss) from operations .................................. (24,635) (10,589)
Equity in income
of investees ....................................... 21,330 5,250
Gains on sale of real estate ............................ 8,974 8,150
--------------- ---------------
Net income .............................................. 5,669 2,811
Preferred dividend
requirement ........................................ (135) (99)
--------------- ---------------
Net Income applicable to
Common shares ........................................... $ 5,534 $ 2,712
=============== ===============
PER SHARE DATA
Net Income .............................................. $ .53 $ .23
=============== ===============
Dividends per share ..................................... $ .10 $ .10
Weighted average Common
shares used in computing
earnings per share ...................................... 10,724,507 12,114,939
=============== ===============
</TABLE>
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<PAGE> 95
<TABLE>
<CAPTION>
June 30, 1998
-------------
BALANCE SHEET DATA (dollars in thousands, except per share)
<S> <C>
Notes and interest receivable,
net............................... $ 173
Real Estate, net.................. 398,622
Total Assets...................... 520,006
Notes and interest payable........ 342,679
Margin Borrowings................. 56,185
Stockholder's equity.............. 68,297
Book Value per share.............. $3.30
</TABLE>
ART MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS OF ART
INTRODUCTION
ART was organized in 1961 to provide investors with a professionally
managed, diversified portfolio of equity real estate and mortgage loan
investments selected to provided opportunities for capital appreciation as well
as current income.
LIQUIDITY AND CAPITAL RESOURCES
General. Cash and cash equivalents at June 30, 1998 aggregated $4.6
million, compared with $5.3 million at December 31, 1997. Although ART
anticipates that during the remainder of 1998 it will generate excess cash flow
from property operations, as discussed below, such excess cash is not expected
to be sufficient to discharge all of ART's debt obligations as they mature. ART
will therefore continue to rely on externally generated funds, including
borrowings against its investments in various real estate entities, the sale or
refinancing of properties and, to the extent available or necessary, borrowings
from BCM an affiliate of and advisor to ART, which totaled $10.7 million at June
30, 1998, to meet its debt service obligations, pay taxes, interest and other
non-property related expenses.
At December 31, 1997, notes payable totaling $89.0 million had either
scheduled maturities or required principal reduction payments during 1998. ART
had the option of extending the maturity dates of $18.3 million of that amount,
but in April 1998, ART paid off $5.0 million of this amount, refinanced the
remaining $13.3 million with the same lender, increased the loan's principal
balance by $1.7 million and established a new maturity date of April 2000. The
lender on an additional $19.5 million has extended the loan's maturity date to
February 2000. In March 1998, ART made a $10.2 million paydown on this loan. In
addition, through June 30, 1998 ART has paid down or paid off a total of $20.4
million of the remainder of such maturing debt. ART intends to either pay off,
extend the maturity dates or obtain alternate financing for the remaining $30.8
million of debt that matures during the remainder of 1998. There can be no
assurance, however, that these efforts to obtain alternative financing or
complete land sales will be successful.
ART expects an increase in cash flow from property operations during
the remainder of 1998. Such increase is expected to be derived from operations
of the Inn at the Mart, Best Western Oceanside Hotel, Piccadilly Hotels,
Williamsburg Hospitality House and the twenty-nine apartment complexes acquired
in May 1998.
In January 1998, ART purchased the El Dorado Parkway land, a 8.5 acre
parcel of undeveloped land in McKinney, Texas, for $952,000. ART paid $307,000
in cash, assumed the existing mortgage of $164,000 and obtained seller financing
of the remaining $481,000 of the purchase price.
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Also in January 1998, ART purchased the Valley Ranch IV land, a 12.3
acre parcel of undeveloped land in Irving, Texas, for $2.0 million. ART paid
$500,000 in cash and obtained seller financing of the remaining $1.5 million of
the purchase price.
Further in January 1998, ART purchased the JHL Connell land, a 7.7 acre
parcel of undeveloped land in Carrollton, Texas, for $1.3 million in cash.
In February 1998, ART purchased the Scoggins land, a 314.5 acre parcel
of undeveloped land in Tarrant County, Texas, for $3.0 million. ART paid $1.5
million in cash and obtained new mortgage financing of $1.5 million.
Also in February 1998, ART purchased the Bonneau land, a 8.4 acre
parcel of undeveloped land in Dallas County, Texas, for $1.0 million. ART
obtained new mortgage financing of $1.0 million.
In November 1994, ART and an affiliate of BCM, sold five apartment
complexes to a newly formed limited partnership in exchange for $3.2 million in
cash, a 27% limited partner interest in the partnership and two mortgage notes
receivable, secured by one of the properties sold. ART had the option to
reacquire the properties at any time after September 1997 for their original
sales prices. In February 1998, ART reacquired three of the properties, one of
which was secured by the mortgage notes, for $7.7 million. ART paid $4.0 million
in cash and assumed the existing mortgages of $3.7 million. Simultaneously ART
refinanced the three properties for a total of $7.8 million, ART receiving net
financing proceeds of $3.9 million after paying off the $3.7 million in existing
mortgage debt and the payment of various costs associated with the financing. In
June 1998, ART reacquired the remaining two properties for $8.7 million. ART
paid $2.1 million in cash and assumed the existing mortgages of $6.6 million.
Also in March 1998, ART purchased the Desert Wells land, a 420 acre
parcel of undeveloped land in Palm Desert, California, for $12.0 million. ART
paid $400,000 in cash, obtained new mortgage financing of $10.0 million and
obtained seller financing of the remaining $1.6 million of the purchase price.
The seller financing was paid off at maturity in July 1998.
In April 1998, ART purchased the Yorktown land, a 325.8 acre parcel of
undeveloped land in Harris County, Texas, for $7.4 million. ART paid $3.0
million in cash and obtained seller financing of the remaining $4.4 million of
the purchase price.
Also in April 1998, ART sold a 77.7 acre tract of the Lewisville land
parcel for $6.8 million in cash. ART received net cash of $358,000 after paying
off first and second lien mortgages totaling $5.9 million. ART recognized a gain
of $2.0 million on the sale.
In December 1997, ART sold the Pin Oak land, a 567.6 acre parcel of
undeveloped land in Houston, Texas, for $11.4 million. ART received net cash of
$3.5 million, and provided an additional $6.9 million in short term seller
financing that was paid in full in January 1998. On the payoff of the seller
financing ART received net cash of $1.5 million after paying off $5.2 million in
underlying mortgage debt and the payment of various closing costs associated
with the sale.
In August 1990, ART obtained the Continental Hotel and Casino in Las
Vegas, Nevada, through foreclosure subject to first and second lien mortgages
totaling $10.0 million. In June 1992, ART sold the hotel and casino for, among
other consideration, a $22.0 million wraparound mortgage note receivable. In
March 1997, the wraparound note was modified and extended in exchange for, among
other things, the borrower's commitment to invest $2.0 million in improvements
to the hotel and casino within four months of the March 1997 modification and an
additional $2.0 million prior to December 1997. Since April 1997, the borrower
had not made the required note payments, nor the required improvements. In
December 1997, the borrower filed for bankruptcy protection. In February 1998, a
hearing was held to allow ART to foreclose on the hotel and casino. At the
hearing, the court ruled that the borrower had 90 days to submit a
reorganization plan and beginning March 2, 1998, required the borrower to make
monthly payments of $175,000 to ART. ART received the first such payment on
March 2, 1998. In April 1998, the bankruptcy court allowed ART to foreclose on
the hotel and casino. ART did not incur a loss on foreclosure as the fair value
of the property exceeded the carrying value of ART's note receivable.
In May 1998, ART purchased, in a single transaction, twenty-nine
apartment complexes totaling 2,441 units in Florida and Georgia for $55.8
million. ART acquired the properties through three newly-formed Texas limited
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partnerships. The partnerships paid a total of $6.1 million in cash, assumed
$43.4 million in existing mortgage debt and issued a total of $6.6 million in
Class A Limited Partner units in the acquiring entities, having ART as the Class
B Limited Partner and a newly-formed wholly-owned subsidiary of ART, as the
Managing General Partner. The Class A Limited Partners are entitled to a
preferred return of $.08 per unit in 1998, $.09 per unit in 1999 and $.10 per
unit in 2000 and thereafter.
In May 1998, ART sold a 15.4 acre tract of the Valley Ranch land
parcel, for $1.2 million in cash. ART received net cash of $41,000 after paying
down $1.1 million on the mortgage secured by such land parcel and the payment of
various closing costs associated with the sale. ART recognized a gain of
$663,000 on the sale.
Also in May 1998, ART purchased the FRWM Cummings land, a 6.4 acre
parcel of undeveloped land in Farmers Branch, Texas, for $1.2 million in cash.
Further in May 1998, ART sold a 21.3 acre tract of the Parkfield land
parcel, for $1.3 million in cash. ART received net cash of $40,000 after paying
down $1.1 million on the mortgage secured by such land parcel and the payment of
various costs associated with the sale. ART recognized a gain of $670,000 on the
sale.
In June 1998, ART sold a 21.6 acre tract of the Chase Oaks land parcel,
for $3.3 million in cash. ART received net cash of $517,000 after paying down
$2.0 million on the mortgage secured by such land parcel and the payment of
various closing costs associated with the sale. ART recognized a gain of
$848,000 on the sale.
Also in June 1998, ART sold a 150.0 acre tract of the Rasor land
parcel, for $6.8 million in cash. ART received net cash of $1.6 million after
paying down $5.0 million on the mortgage secured by such land parcel and the
payment of various closing costs associated with the sale. ART recognized a gain
of $789,000 on the sale.
Further in June 1998, ART sold the entire 315.2 acre Palm Desert land
parcel, for $17.2 million in cash. ART received net cash of $9.2 million after
paying off $7.2 million in mortgage debt and the payment of various closing
costs associated with the sale. ART recognized a gain of $3.9 million on the
sale.
In July 1998, ART purchased the Thompson II land, a 3.5 acre parcel of
undeveloped land in Dallas County, Texas, for $471,000 in cash.
Also in July 1998, ART purchased, through a newly formed partnership,
the Katrina land, a 454.8 acre parcel of undeveloped land in Palm Desert,
California, for $38.2 million. The partnership issued $23.2 million of Class A
Limited Partner units and obtained new mortgage financing of $15.0 million. The
Class A Limited Partners are entitled to an annual preferred return of $.07 per
unit in 1998, $.08 per unit in 1999, $.09 per unit in 2000 and $.10 per unit in
2001 and thereafter.
Further in July 1998, ART purchased the HSM Cummings land, a 10.9 acre
parcel of undeveloped land in Dallas County, Texas, for $1.6 million in cash.
In July 1998, ART purchased the Walker land, a 71.1 acre parcel of
undeveloped land in Dallas County, Texas, for $10.9 million in cash. Also in
July, ART obtained mortgage financing of $13.3 million. ART received net cash of
$12.8 million after the payment of various closing costs associated with the
financing. The mortgage is also secured by the HSM Cummings land.
Loans Payable. In February 1998, ART financed its unencumbered
Kamperman land in the amount of $1.6 million. ART received net cash of $1.5
million after the payment of various closing costs associated with the
financing.
Also in February 1998, ART refinanced its Vineyards land in the amount
of $3.4 million. ART received net cash of $2.9 million, after the payoff of
$540,000 in mortgage debt.
Further in February 1998, ART financed its unencumbered Valley Ranch
land in the amount of $4.3 million. ART received net cash of $4.1 million after
the payment of various closing costs associated with the financing.
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In March 1998, ART financed its unencumbered Stagliano and Dalho land
in the amount of $800,000 with the lender on the Bonneau land. ART received net
cash of $790,000 after the payment of various closing costs associated with the
financing.
Also in March 1998, ART refinanced the mortgage debt secured by the
McKinney Corners and Dowdy land in the amount of $20.7 million. ART received net
cash of $5.9 million after paying off $2.5 million in mortgage debt, paying down
$10.2 million on the Las Colinas I term loan and the payment of various closing
costs associated with the financing. ART also pledged 800,000 shares of Series F
Preferred Stock as additional security for the loan.
In April 1998, ART obtained a second lien mortgage of $2.0 million
secured by the BP Las Colinas land from the limited partner in a partnership
that owns approximately 15.6% of the outstanding shares of ART's Common Stock.
Also in April 1998, ART refinanced the mortgage debt secured by the
Parkfield land in the amount of $7.3 million. ART received net cash of $1.2
million after paying off $5.0 million in mortgage debt and the payment of
various closing costs associated with the financing.
Also in May 1998, ART refinanced the mortgage debt secured by its Scout
and Scoggins land in the amount of $10.4 million under the Las Colinas I term
loan. ART received net cash of $6.6 million after paying off $1.4 million in
mortgage debt on the Scout land and $1.5 million in mortgage debt on the
Scoggins land, a pay down of $250,000 on the Keller land mortgage, and the
payment of various closing costs associated with the financing. ART also pledged
250,000 shares of its Common Stock, and BCM pledged 177,000 shares of ART's
Common Stock as additional security for the loan.
In August 1996, ART consolidated its existing NRLP margin debt held by
various brokerage firms into a single margin loan. ART has pledged 3,349,169 of
its NRLP units as security for such margin loan which had a principal balance of
$24.0 million at July 31, 1998. The margin loan is due and payable. ART has
received a commitment from a financial institution for a new loan in a principal
amount in excess of the current outstanding loan balance. ART has notified the
existing margin lender that it intends to pay such loan in full prior to August
31, 1998.
Equity Investments. During the fourth quarter of 1988, ART began
purchasing shares of various real estate investment trusts having the same
advisor as ART, and units of limited partner interest in NRLP. It is anticipated
that additional equity securities of NRLP and the Affiliated REITs will be
acquired in the future through open-market and negotiated transactions to the
extent ART's liquidity permits.
Equity securities of the Affiliated REITs and NRLP held by ART may be
deemed to be "restricted securities" under Rule 144 of the Securities Act of
1933 ("Securities Act"). Accordingly, ART may be unable to sell such equity
securities other than in a registered public offering or pursuant to an
exemption under the Securities Act for a period of one year after they are
acquired. Such restrictions may reduce ART's ability to realize the full fair
market value of such investments if ART attempted to dispose of such securities
in a short period of time.
ART's cash flow from these investments is dependent on the ability of
each of the entities to make distributions. CMET and IORI have paid regular
quarterly distributions since the first quarter of 1993, NRLP since the fourth
quarter of 1993 and TCI since the fourth quarter of 1995. ART received
distributions totaling $8.5 million in the first six months of 1998 from the
REITs and NRLP, including $6.7 million in distributions that were accrued at
December 31, 1997.
ART has margin arrangements with various brokerage firms which provide
for borrowing up to 50% of the market value of ART's marketable equity
securities. The borrowings under such margin arrangements are secured by equity
securities of the REITs, NRLP and ART's trading portfolio and bear interest
rates ranging from 7.0% to 11.0%. Margin borrowing totaled $56.2 million at
June 30, 1998.
ART's management reviews the carrying values of ART's properties and
mortgage notes receivable at least annually and whenever events or a change in
circumstances indicate that impairment may exist. Impairment is considered to
exist if, in the case of a property, the future cash flow from the property
(undiscounted and without interest) is less than the carrying amount of the
property. For notes receivable impairment is considered to exist if it is
probable that all amounts due under the terms of the note will not be collected.
In those instances where impairment is found to exist, a provision for loss is
recorded by a charge against earnings. ART's mortgage note receivable review
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includes an evaluation of the collateral property securing such note. The
property review generally includes selective property inspections, a review of
the property's current rents compared to market rents, a review of the
property's expenses, a review of maintenance requirements, a review of the
property's cash flow, discussions with the manager of the property and a review
of properties in the surrounding area.
COMMITMENTS AND CONTINGENCIES
ART owns a 96% limited partner interest in SAMLP. SAMLP is the general
partner of NRLP and NOLP, the operating partnership of NRLP. Gene E. Phillips, a
Director and Chairman of the Board of ART until November 16, 1992, is also a
general partner of SAMLP. At June 30, 1998, ART owned approximately 54% of the
outstanding limited partner units of NRLP.
NRLP, SAMLP and Mr. Phillips were among the defendants in a class
action lawsuit arising from the formation of NRLP. The Moorman Settlement
Agreement, an agreement settling such lawsuit for the above mentioned
defendants, became effective on July 5, 1990. The Moorman Settlement Agreement
provided for, among other things, the appointment of an NRLP Oversight Committee
and the establishment of specified annually increasing targets for five years
relating to the price of NRLP's units of limited partner interest.
The Moorman Settlement Agreement provides for the resignation and
replacement of SAMLP as general partner if the unit price targets are not met
for two consecutive anniversary dates. NRLP did not meet the unit price targets
for the first and second anniversary dates. On July 8, 1992, SAMLP notified the
NRLP Oversight Committee of the failure of NRLP to meet the unit price targets
for two successive years and that it expects to resign as general partner of
NRLP and NOLP.
The withdrawal of SAMLP as general partner would require NRLP to
purchase SAMLP's general partner interest (the "Redeemable General Partner
Interest") at its then fair value, and to pay certain fees and other
compensation as provided in the partnership agreement. SAMI, the managing
general partner of SAMLP, has calculated the fair value of such Redeemable
General Partner Interest to be $49.6 million at June 30, 1998, before reduction
for the principal balance ($4.2 million at June 30, 1998) and accrued interest
($7.8 million at June 30, 1998) on the note receivable from SAMLP for its
original capital contribution to the partnership.
On December 15, 1997, NRLP, SAMLP, the NRLP Oversight Committee, Joseph
B. Moorman, Invenex and the Counsel for the plaintiff class members Resolution
Agreement which provided for the nomination of an entity affiliated with SAMLP
to be the successor general partner of NRLP and NOLP, for the establishment of a
fund for the benefit of the plaintiff class members consisting of cash and
properties owned by NOLP and for the resolution of all related matters under the
Moorman Settlement Agreement.
The Resolution Agreement was submitted to the Supervising Judge and on
February 11, 1998, the Supervising Judge entered an order granting preliminary
approval of the Resolution Agreement. On July 15, 1998, NRLP, SAMLP and the NRLP
Oversight Committee executed the Cash Distribution Agreement which provides for
the nomination of an entity affiliated with SAMLP to be the successor general
partner of NRLP, for the distribution of $11.4 million to the plaintiff class
members and for the resolution of all related matters under the Moorman
Settlement Agreement. The Cash Distribution Agreement was submitted to the
Supervising Judge on July 23, 1998 as an alternative to the Resolution
Agreement. On July 27, 1998, Invenex withdrew the proposal for approval of the
Resolution Agreement. On August 4, 1998, the Supervising Judge entered an order
granting preliminary approval of the Cash Distribution Agreement and directed
that a notice be prepared to be mailed to the plaintiff class members describing
the Cash Distribution Agreement. In addition, the Supervising Judge scheduled
October 16, 1998 as the date for the final hearing on any objections to the Cash
Distribution Agreement.
Pursuant to the order entered on August 4, 1998, $11.4 million will be
deposited by NRLP into an escrow account following the final approval by the
Supervising Judge of the Cash Distribution Agreement. The actual distribution of
the cash to the plaintiff class members will occur immediately following the
election and taking office of the successor general partner. The distribution of
the cash shall be made to the NRLP plaintiff class members pro rata based upon
the formation of NRLP in 1987. The distribution of cash will be under the
control of an independent settlement administrator.
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Upon final approval by the Supervising Judge, the proposal to elect the
successor general partner will be submitted to the unitholders of NRLP for a
vote. All units of NRLP owned by affiliates of SAMLP (approximately 60.5% of the
outstanding limited partners units as of July 31, 1998) will be voted pro rata
with the vote of the other limited partners.
Upon approval by the NRLP unitholders, SAMLP shall withdraw as general
partner and the successor general partner shall take office. If the required
approvals are obtained, it is anticipated that the successor general partner
will be elected and take office during the fourth quarter of 1998. Upon the
election and taking office of the successor general partner and the distribution
of the cash to the plaintiff class members, the Settlement Agreement and the
NRLP Oversight Committee shall be terminated.
Under the Cash Distribution Agreement, SAMLP has agreed to waive its
right under the Settlement Agreement to receive any payment from NRLP for its
Redeemable General Partner Interest upon its resignation and the election of a
successor general partner. In addition, pursuant to the Cash Distribution
Agreement, the NRLP partnership agreement will be amended to provide that, upon
voluntary resignation of the general partner, the resigning general partner
shall not be entitled to the repurchase of its general partner interest under
Paragraph 17.9 of the NRLP partnership agreement.
Under the Cash Distribution Agreement, the successor general partner
will assume liability for the note receivable from SAMLP for its capital
contribution to NRLP. In addition, the successor general partner will assume
liability for a note receivable which will require the repayment to NRLP of the
total amount of cash distributed by NRLP under the Cash Distribution Agreement.
This note will require repayment over a ten-year period, bear interest and be
guaranteed by ART, which (as of July 31, 1998) is the owner of a 96% limited
partner interest in SAMLP and approximately 54% of the outstanding limited
partners units.
In the event that the Cash Distribution Agreement is disapproved by the
Supervising Judge or does not become effective pursuant to the provisions
thereof, then the parties shall be restated to their respective positions as of
December 14, 1997, all of the provisions of the Cash Distribution Agreement
shall be void, and the Settlement Agreement shall remain in full force and
effect.
RESULTS OF OPERATIONS
The Three and Six Months Ended June 30, 1998. For the three months
ended June 30, 1998, ART reported net income of $14.8 million, compared to net
income of $2.5 million for the three months ended June 30, 1997. For the six
months ended June 30, 1998, ART reported net income of $5.7 million compared
with net income of $2.8 million for the six months ended June 30, 1997. The
primary factors contributing to ART's operating results are discussed in the
following paragraphs.
Sales and cost of sales were $7.3 million and $6.2 million,
respectively, for the three months ended June 30, 1998 compared to $2.2 million
and $1.7 million for the three months ended June 30, 1997. Sales and cost of
sales for the six months ended June 30, 1998 were $14.1 million and $12.0
million, respectively, compared to $2.2 million and $1.7 million for the same
period in 1997. These items of revenue and cost relate to PWSI, which became a
wholly-owned consolidated subsidiary in May 1997.
Rents increased from $5.0 million and $10.9 million for the three and
six months ended June 30, 1997 to $15.8 million and $27.3 million for the three
and six months ended June 30, 1998. These increases are principally due to the
acquisition in 1997 of the four Piccadilly Hotels, Collection Retail Center, the
Williamsburg Hospitality House and the acquisition of twenty-nine apartment
complexes effective April 1, 1998. Rents are expected to continue to increase as
ART benefits from a full year of operations of the properties it acquired in
late 1997 and 1998.
Interest income from mortgage notes receivable of $16,000 and $154,000
for the three and six months ended June 30, 1998 decreased from the $1.2 million
and $2.3 million for the three and six months ended June 30, 1997. The decrease
is attributable to the foreclosure of the $22.7 million note receivable secured
by the Continental Hotel and Casino in April 1998. The note had been performing
in 1997. Interest income is not expected to be significant for the remainder of
1998.
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Other income decreased from $1.3 million and $1.8 million for the three
and six months ended June 30, 1997 to a negative $399,000 and $608,000 for the
three and six months ended June 30, 1998. The decrease is primarily due to
increases of $1.9 million and $2.7 million in unrealized losses for the three
and six months ended June 30, 1998 on ART's trading portfolio securities.
Property operating expense increased from $4.0 million and $8.5 million
for the three and six months ended June 30, 1997 to $11.5 million and $21.2
million for the three and six months ended June 30, 1998. The increases are
principally due to the acquisition in 1997 of the four Piccadilly Hotels,
Collection Retail Center, the Williamsburg Hospitality House and the acquisition
of twenty-nine apartment complexes effective April 1998.
Interest expense increased from $6.9 million and $12.0 million for the
three and six months ended June 30, 1997 to $13.0 million and $22.5 million for
the three and six months ended June 30, 1998. The increases are primarily
attributable to the debt incurred related to 30 parcels of land, five hotels,
thirty-four apartment complexes and one commercial property purchased or
obtained through foreclosure subsequent to June 30, 1997. Interest expense for
the remaining quarters of 1998, is expected to increase as ART continued to
acquire properties in the third quarter on a leveraged basis.
Advisory and mortgage servicing fees increased from $585,000 and $1.0
million for the three and six months ended June 30, 1997 to $949,000 and $1.7
million in the three and six months ended June 30, 1998. The increase is
primarily attributable to ART's increase in gross assets, the basis for such
fees. Such fees are expected to continue to increase as ART's gross assets
increase.
Depreciation and amortization increased from $600,000 and $1.1 million
for the three and six months ended June 30, 1997 to the $1.7 million and $3.0
million for the three and six months ended June 30, 1998. Such increases are
attributable to the income producing properties acquired by ART subsequent to
June 30, 1997, as described above.
General and administrative expenses increased from $1.5 million and
$2.4 million for the three and six months ended June 30, 1997 to $1.9 million
and $4.2 million in the three and six months ended June 30, 1998. The increase
is primarily attributable to $217,000 in legal fees incurred in 1998 relating to
pending acquisitions and refinancings, a $268,000 increase in advisor cost
reimbursements and $1.1 million from consolidation of the operations of PWSI.
Incentive compensation for the six months ended June 30, 1997 was
$299,000 and relates to the sale of Porticos Apartments. No incentive
compensation was earned in 1998.
Equity in income of investees increased from $5.0 million and $5.2
million for the three and six months ended June 30, 1997 to $18.9 million and
$21.3 million for the three and six months ended June 30, 1998. The increases in
equity income are attributable to ART's equity share of equity investees' gain
on sale of real estate of $23.0 million and $26.2 million for three and six
months ended June 30, 1998 compared to $4.9 million and $5.9 million for the
three and six months ended June 30, 1997. These increases were offset in part,
by an increase in the combined operating losses of ART's equity investees. ART's
equity share of such losses being $4.2 million and $4.9 million for the three
and six months ended June 30, 1998 compared to $1.1 million and $1.8 million for
the same periods of 1997.
Gains on sale of real estate were $9.0 million for the three and six
months ended June 30, 1998 compared to $3.9 million and $8.1 million for the
three and six months ended June 30, 1997. For the three and six months ended
June 30, 1998, ART recognized a $670,000 gain on the sale of 21.3 acres of
Parkfield land, a $1.9 million gain on the sale of Lewisville land, a $848,000
gain on the sale of 21.2 acres of Chase Oaks land, a $789,000 gain on the sale
of 150.0 acres of Rasor land, a $3.9 million gain on the sale of Palm Desert
land and a $842,000 gain on the sale of 39.4 acres of Valley Ranch land.
For the three months ended June 30, 1997, ART recognized a previously
deferred gain of $3.0 million on the sale of Porticos Apartments, a $216,000
gain on the sale of Kamperman land, a $668,000 gain on the sale of 3.1 acres of
Las Colinas land. In the first quarter of 1997, a $3.4 million gain on the sale
of 40.2 acres of BP Las Colinas land, a $171,000 gain on the sale of Osceola
land and a $676,000 gain on the sale of 3.0 acres of Las Colinas I land.
1997 Compared to 1996. ART reported a net loss of $2.4 million in 1997
as compared to a net loss of $5.6 million in 1996. The primary factors
contributing to ART's net loss are discussed in the following paragraphs.
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Sales and cost of sales were $17.9 million and $14.5 million,
respectively, in 1997. ART had no sales or cost of sales prior to May 1997.
These items of revenue and cost relate to PWSI, consolidated in May 1997.
Net rental income (rents less property operating expenses) increased
from $4.8 million in 1996 to $4.9 million in 1997. This increase is primarily
attributable to increased rents at the Denver Merchandise Mart and increased
room rates and occupancy at the Kansas City Holiday Inn. Net rental income is
expected to increase in 1998 from a full years operation of The Collection
Office and Retail Center, Preston Square Shopping Center, Williamsburg
Hospitality House and the four Piccadilly hotels all of which were acquired in
1997.
Interest income decreased from $4.7 million in 1996 to $2.8 million in
1997. This decrease is primarily attributable to the sale of two notes
receivable and the payoff of a third note receivable in 1997. Interest income in
1998 is expected to approximate that in 1997.
Other income decreased from $1.6 million in 1996 to $134,000 in 1997.
This decrease is due in part to recognizing a unrealized gain on marketable
equity securities of $486,000 in 1996 compared to an unrealized loss of $850,000
in 1997. This decrease is also attributable in part to a decrease in dividend
income and net gains on sales of marketable equity securities of $67,000 and
$56,000, respectively.
Interest expense increased from $16.5 million in 1996 to $30.2 million
in 1997. Of this increase, $10.8 million is due to the debt secured by the Best
Western Oceanside Hotel acquired in 1996 and the Williamsburg Hospitality House,
Piccadilly Hotels, Pin Oak land, Scout land, Katy land, McKinney land, Lacy
Longhorn land, Santa Clarita land, Chase Oaks land, Pioneer Crossing land,
Pantex land, Keller land, Perkins land, Rasor land, Dowdy land, Palm Desert land
and LBJ land acquired in 1997, $2.0 million is due to additional borrowings and
a full years interest on the loan secured by NRLP units and $1.1 million is due
to refinancing the debt secured by the Kansas City Holiday Inn and Denver
Merchandise Mart. Interest expense for 1998 is expected to increase from the
continued acquisition of properties on a leveraged basis.
Advisory and mortgage servicing fees increased from $1.5 million in
1996 to $2.7 million in 1997. The increase is attributable to the increase in
ART's gross assets, the basis for such fee. Such fee will continue to increase
as ART's gross assets increase.
General and administrative expenses, increased from $2.7 million in
1996 to $7.0 million in 1997. The increase is attributable to a $1.1 million
increase in legal fees and travel expenses in 1997 relating to potential
acquisitions, financings and refinancings, a $1.1 million increases in advisor
cost reimbursements and $2.1 million attributable to the general and
administrative expenses of PWSI.
Depreciation and amortization increased from $2.0 million in 1996 to
$3.3 million in 1997 due to the acquisition of six properties and PWSI in 1997.
Depreciation and amortization are expected to increase again in 1998 from a full
years depreciation of the properties acquired in 1997.
Minority interest in 1997 is the preferred return paid on limited
partner units of Ocean Beach Partners, L.P., Valley Ranch, L.P., Grapevine
American, L.P., Edina Park Plaza Associates, L.P. and Hawthorne Lakes
Associates, L.P.
Equity in income of investees improved from $2.0 million in 1996 to
$10.7 million in 1997. The increase in equity income is primarily attributable
to an increase of $32.1 million in gains on sale of real estate in IORI, NRLP
and TCI offset by a decrease of $1.9 million in CMET. ART's equity share of such
gains was $13.5 million. The increase is also attributable to an improvement in
income from property operations for the Affiliated REITs and NRLP, from
increased rental rates and operating expense control.
Gains on the sale of real estate increased from $3.7 million in 1996 to
$20.3 million in 1997. In 1996, ART recognized a $2.0 million gain on the sale
of a 32.3 acre tract of BP Las Colinas land in Las Colinas, Texas, and a $1.1
million gain on the sale of a 4.6 acre tract of Las Colinas I land also in Las
Colinas, Texas. In 1997, the Company recognized gains of $5.9 million on the
sale of a 49.7 acre tract of BP Las Colinas land in Las Colinas, Texas; $3.5
million on the sale of tracts totaling 116.8 acres of Valley Ranch land in
Irving, Texas; $2.7 million on the sale of a 12.5 acre tract of Las Colinas I
land in Las Colinas, Texas; $3.6 million on the sale of Pin Oak land in Houston,
Texas; $216,000 on the sale of a 99.7 acre tract of Kamperman land in Collin
County, Texas; $371,000 on the sale of a 32.0 acre tract of Parkfield land in
Denver, Colorado; $211,000 on the sale of a 86.5 acre tract of Rasor land in
Plano, Texas;
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$106,000 on the sale of Park Plaza Shopping Center in Manitowoc, Wisconsin;
$480,000 on the sale of the Mopac Building in St. Louis, Missouri; and $172,000
on the sale of a mortgage note receivable. ART also recognized a previously
deferred gain of $3.0 million on the sale of Porticos Apartments. See NOTE 4.
"REAL ESTATE."
ART reported $381,000 in extraordinary gains in 1996 compared to no
extraordinary gains in 1997. The 1996 extraordinary gain is ART's share of TCI's
extraordinary gain from the early payoff of debt and CMET's extraordinary gain
from an insurance settlement.
1996 Compared to 1995. ART reported a net loss of $5.6 million in 1996
as compared to a net loss of $2.8 million in 1995. The primary factors
contributing to the increase in ART's net loss are discussed in the following
paragraphs.
Net rental income (rents less property operating expenses) increased
from $4.6 million in 1995 to $4.8 million in 1996. This increase is primarily
attributable to increased rents at the Denver Merchandise Mart and increased
room rates and occupancy at the Kansas City Holiday Inn. Net rental income is
expected to increase in 1997 from continued improvement at the Kansas City
Holiday Inn and from a full years operations of the Best Western Oceanside Hotel
which was acquired in December 1996.
Interest income decreased from $4.9 million in 1995 to $4.7 million in
1996. This decrease is primarily attributable to a note receivable being paid
off in 1995.
Other income increased from $154,000 in 1995 to $1.6 million in 1996.
This increase is due to recognizing an unrealized gain of $486,000 on ART's
trading portfolio of equity securities in 1996 compared to recognizing an
unrealized loss of $1.4 million in 1995. This increase was offset in part by
dividend income and gain on marketable equity securities decreasing by $689,000
and $292,500 respectively.
Interest expense increased from $8.9 million in 1995 to $16.5 million
in 1996. The increase is primarily attributable to debt refinancings and the
debt incurred related to the purchase of six parcels of land in 1995 and 1996
and the Oak Tree Village obtained in November 1995. Offsetting the increase was
a $161,000 decrease in interest expense due to the sale of an apartment complex
in February 1995.
Advisory and mortgage servicing fees increased from $1.2 million in
1995 to $1.5 million in 1996. The increase is primarily attributable to ART's
increase in gross assets, the basis for such fee.
Depreciation increased from $1.7 million in 1995 to $2.0 million in
1996 due to $2.9 million in property improvements made in 1996.
Equity in income of investees improved from a loss of $851,000 in 1995
to income of $2.0 million in 1996. The increase in equity income is primarily
attributable to an improvement in income from property operations for both CMET
and NRLP, from increased rental rates and a decrease in operating expenses. The
1995 gains are attributable to ART's equity share ($1.8 million) of NRLP's
fourth quarter gain on the sale of two apartment complexes, ART's equity share
($2.5 million) of TCI's gain on the sale of land in the third quarter and an
apartment complex in the fourth quarter of 1995, a $4.6 million gain
representing ART's equity share of the REIT's gain on sale of real estate.
Gains on the sale of real estate increased from $2.6 million in 1995 to
$3.7 million in 1996. In 1996, ART recognized a $2.0 million gain on the sale of
32.3 acres of the BP Las Colinas land in Las Colinas, Texas, and a $1.1 million
gain on the sale of 4.6 acres of the Las Colinas I land also in Las Colinas,
Texas. The 1995 gains are attributable to a $1.6 million gain recognized on the
sale of 6.9 acres of Las Colinas I land and a $924,000 gain recognized on the
sale of the Boulevard Villas Apartments in February 1995.
ART reported $783,000 in extraordinary gains in 1995 compared to
$381,000 in extraordinary gains in 1996. The 1996 extraordinary gain is ART's
share of TCI's extraordinary gain from the early payoff of debt and CMET's
extraordinary gain from an insurance settlement. The 1995 extraordinary gain is
ART's equity share of TCI's extraordinary gain from the early payoff of mortgage
debt.
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ENVIRONMENTAL MATTERS
Under various federal, state and local environmental laws, ordinances
and regulations, ART may be potentially liable for removal or remediation costs,
as well as certain other potential costs relating to hazardous or toxic
substances (including governmental fines and injuries to persons and property)
where property-level managers have arranged for the removal, disposal or
treatment of hazardous or toxic substances. In addition, certain environmental
laws impose liability for release of asbestos-containing materials into the air,
and third parties may seek recovery from ART for personal injury associated with
such materials.
ART's management is not aware of any environmental liability relating
to the above matters that would have a material adverse effect on ART's
business, assets or results of operations.
INFLATION
The effects of inflation on ART's operations are not quantifiable.
Revenues from property operations fluctuate proportionately with inflationary
increases and decreases in housing costs. Fluctuations in the rate of inflation
also affect the sales values of properties and, correspondingly, the ultimate
gains to be realized by ART from property sales.
YEAR 2000
BCM, an affiliate of and advisor to ART, has advised ART that its
current computer software has been certified by the Information Technology
Association of America ("ITAA") as year 2000 compliant. BCM has also advised ART
that it has recently received and plans to install the ITAA certified year 2000
compliant operating system for its computer hardware during the third quarter of
1998.
DESCRIPTION OF THE CAPITAL STOCK OF ART
GENERAL
ART is authorized by its Articles of Incorporation, as amended, to
issue up to 100,000,000 ART Common Shares and 20,000,000 shares of a special
class of stock, $2.00 par value per share (the "Special Stock"), which may be
designated by the ART Board from time to time. The ART Preferred Shares are a
series of the Special Stock.
ART PREFERRED SHARES
On August 13, 1997, the ART Board designated and authorized the
issuance of a total of 7,500,000 ART Preferred Shares with a par value of $2.00
per share and a preference on liquidation of $10.00 per share plus payment of
accrued and unpaid dividends. The ART Preferred Shares are non-voting except (i)
as provided by law, (ii) with respect to an amendment to ART's articles of
incorporation or bylaws that would materially alter or change the existing terms
of the ART Preferred Shares, and (iii) at any time or times when all or any
portion of the dividends on the ART Preferred Shares for any six quarterly
dividends, whether or not consecutive, shall be in arrears and unpaid. In the
latter event, the number of directors constituting the board of directors of ART
shall be increased by two and the holders of ART Preferred Shares, voting
separately as a class, shall be entitled to elect two directors to fill such
newly created directorships with each holder being entitled to one vote in such
election for each share of ART Preferred Shares held. ART is not obligated to
maintain a sinking fund with respect to the ART Preferred Shares.
The ART Preferred Shares are convertible, at the option of the holder,
into ART Common Shares at any time and from time to time, in whole or in part,
after the earliest to occur of (i) August 15, 2003; (ii) the first business day,
if any, occurring after a Quarterly Dividend Payment Date (as defined below), on
which an amount equal to or in excess of 5% of the $10.00 liquidation value
(i.e., $.50 per ART Preferred Share) is accrued and unpaid, or (iii) when ART
becomes obligated to mail a statement, signed by an officer of ART, to the
holders of record of each of the ART Preferred Shares because of a proposal by
ART at any time before all of the ART Preferred Shares have been redeemed by or
converted into ART Common Shares, to merge or consolidate with or into any other
corporation (unless ART is the surviving entity and holders of ART Common Shares
continue to hold such ART Common Shares without modification and without receipt
of any additional consideration), or to sell, lease, or convey all or
substantially all its
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property or business, or to liquidate, dissolve or wind up. The ART Preferred
Shares are convertible into that number of shares of ART Common Shares obtained
by multiplying the number of shares being converted by $10.00, then adding all
accrued and unpaid dividends, then dividing such sums by (in most instances) 90%
of the simple average of the daily closing price of the ART Common Shares for
the 20 business days ending on the last business day of the calendar week
immediately preceding the date of conversion on the principal stock exchange on
which such ART Common Shares are then listed (the "Conversion Price").
Notwithstanding the foregoing, ART, at its option, may elect to redeem any ART
Preferred Shares sought to be so converted by paying the holder of such ART
Preferred Shares cash in an amount equal to the Conversion Price.
The ART Preferred Shares bear a cumulative, compounded dividend per
share equal to 10% per annum of the Adjusted Liquidation Value, payable
quarterly on the 15th day of the month following the end of each calendar
quarter (each, a "Quarterly Dividend Payment Date"), and commencing accrual on
the date of issuance to and including the date on which the redemption price of
such shares is paid, whether or not such dividends have been declared and
whether or not there are profits, surplus or other funds of ART legally
available for the payment of such dividends. Dividends on the ART Preferred
Shares are in preference to and with priority over dividends upon the ART Common
Shares. Except as provided in the following sentence, the ART Preferred Shares
rank on a parity as to dividends and upon liquidation, dissolution or winding up
with all other Special Stock issued by ART. ART will not issue any shares of
Special Stock of any series which are superior to the ART Preferred Shares as to
dividends or rights upon liquidation, dissolution or winding up of the
Corporation as long as any ART Preferred Shares are issued and outstanding,
without the prior written consent of the holders of at least 662/3 %of such
shares of the ART Preferred Shares then outstanding voting separately as a
class. As of August 25, 1998, the outstanding Special Stock of ART consisted of
3,350,000 ART Preferred Shares, 16,681 shares of its Series C 10% Cumulative
Preferred Stock (as described below), and 10,000 shares of its Series G
Cumulative Convertible Preferred Stock (as described below).
In addition to ART's redemption right in connection with conversions of
ART Preferred Shares as described above, ART may redeem any or all of the ART
Preferred Shares at any time and from time to time, at its option, for cash upon
no less than 20 days nor more than 30 days prior notice thereof. The redemption
price of the ART Preferred Shares shall be an amount per share equal to (i) 104%
of the Adjusted Liquidation Value during the period from August 16, 1998 through
August 15, 1999; and (ii)103% of the Adjusted Liquidation Value at any time on
or after August 16, 1999. Each ART Preferred Share will be convertible, at the
option of the holder, into fully paid and nonassessable ART Common Shares.
The ART Preferred Shares constitute a new issue of securities with no
established trading market. While the listing of the ART Preferred Shares on the
NYSE is a condition precedent to EQK's obligation to consummate the Merger,
there can be no assurance that an active market for the ART Preferred Shares
will develop or be sustained in the future on the NYSE if the listing is
approved. Moreover, to the extent that EQK Shares are tendered and accepted in
the Merger, the liquidity and trading market for the EQK Shares could be
adversely affected. See "Risk Factors -- ART Preferred Shares -- Application for
the Listing and Trading of ART Preferred Shares and Possible Subsequent
Delisting."
ART COMMON SHARES
All of the ART Common Shares are entitled to share equally in dividends
from funds legally available therefor, when declared by the ART Board, and upon
liquidation or dissolution of ART, whether voluntary or involuntary (subject to
any prior rights of holders of the Special Stock), and to share equally in the
assets of ART available for distributions to shareholders. Each holder of ART
Common Shares is entitled to one vote for each share held on all matters
submitted to the shareholders. There is no cumulative voting, redemption right,
sinking fund provision or right of conversion with respect to the ART Common
Shares. The holders of ART Common Shares do not have any preemptive rights to
acquire additional ART Common Shares when issued. All outstanding ART Common
Shares are fully paid and nonassessable. As of August 25, 1998, 10,755,584 ART
Common Shares were outstanding.
SPECIAL STOCK
The following is a description of certain general terms and provisions
of the Special Stock, including the ART Preferred Shares, the Series B Preferred
Stock, the Series C Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock, the Series G Preferred Stock and the Series H Preferred Stock.
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Article 5 of the Articles of Incorporation of ART, as amended,
authorizes the issuance of up to 100,000,000 shares of Special Stock in one or
more series with such preferences, limitations and rights as the ART Board
determines. In particular, the ART Board may fix and determine, among other
things, the dividend payable with respect to such shares of Special Stock
(including whether and in what manner such dividend shall be accumulated);
whether such shares shall be redeemable, and if so, the prices, terms and
conditions of such redemption; the amount payable on such shares in the event of
voluntary or involuntary liquidation; the nature of any purchase, retirement or
sinking fund provisions; the nature of any conversion rights with respect to
such shares; and the extent of the voting rights, if any, of such shares.
Certain provisions of the Special Stock may, under certain circumstances,
adversely affect the rights or interests of holders of ART Common Shares. For
example, the ART Board could, without shareholder approval, issue a series of
Special Stock with voting and conversion rights which could adversely affect the
voting power of the common shareholders. In addition, the Special Stock may be
issued under certain circumstances as a defensive device to thwart an attempted
hostile takeover of ART.
Through the date of this Prospectus/Proxy Statement, ART has amended
its Articles of Incorporation to designate eight series of the Special Stock as
described below. Each series of Special Stock now outstanding ranks on a parity
as to dividends and upon liquidation, dissolution or winding up with all other
shares of Special Stock.
Series A Preferred Stock; Terminated Rights Plan. On April 11, 1990,
the ART Board designated 500,000 shares of the Series A Cumulative Participating
Preferred Stock (the "Series A Preferred Stock"), adopted a preferred share
purchase rights plan and approved the distribution to shareholders of a dividend
of one preferred share purchase right on each outstanding ART Common Share (the
"Rights"). On February 27, 1997, ART filed articles of amendment to its articles
of incorporation reducing the number of authorized shares of Series A Preferred
Stock to zero and eliminating such designation.
Series B Preferred Stock. On April 3, 1996, the ART Board designated
4,000 shares of Series B Preferred Stock with a par value of $2.00 per share and
a preference on liquidation of $100 per share plus payment of accrued and unpaid
dividends. On May 27, 1998, ART filed articles of amendment to its articles of
incorporation reducing the number of authorized shares of Series B Preferred
Stock to zero and eliminating such designation.
Series C Preferred Stock. On May 23, 1996, the ART Board designated
16,681 shares of Series C Preferred Stock with a par value of $2.00 per share
and a preference on liquidation of $100 per share plus all accrued and unpaid
dividends. The Series C Preferred Stock is non-voting except as required by the
Georgia Business Code. The Georgia Business Code grants the holders of the
outstanding shares of a class the authority to vote as a separate voting group
on a proposed amendment if that amendment would effect a detrimental
reclassification of the existing shares, create a new class with preferences
over the existing shares, or cancel or otherwise affect the rights to
distributions and dividends. ART is not required to maintain a sinking fund for
such stock.
Each share of Series C Preferred Stock is convertible, but only during
a 90-day period beginning on November 25, 1998, into the number of ART Common
Shares obtained by multiplying the number of shares of Series C Preferred Stock
being converted by $100 and dividing the result by (in most instances) 90% of
the then-recent average trading price for the ART Common Shares.
The Series C Preferred Stock bears a cumulative dividend per share of
$10.00 per annum, payable quarterly in equal installments of $2.50. Dividends on
the Series C Preferred Stock are in preference to and with priority over
dividends upon the ART Common Shares. The Series C Preferred Stock ranks on a
parity as to dividends and upon liquidation, dissolution or winding up with all
other shares of Special Stock, including the ART Preferred Shares. The dividends
for the first twelve months were paid in additional shares of Series C Preferred
Stock.
ART may from time to time redeem any or all of the Series C Preferred
Stock upon payment of the liquidation value of $100 per share plus all accrued
and unpaid dividends. There is no restriction on the repurchase or redemption of
the Series C Preferred Stock by ART while there is any arrearage in payment of
dividends except that at the time of such repurchase or redemption ART must pay
all accrued and unpaid dividends on the shares being redeemed. As of August 25,
1998, there were 16,681 shares of Series C Preferred Stock issued and
outstanding.
Series D Preferred Stock. The ART Board designated 91,000 shares of
Series D Cumulative Preferred Stock (the "Series D Preferred Stock") on August
2, 1996, with a par value of $2.00 per share and a preference on liquidation
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of $20.00 per share plus payment of accrued and unpaid dividends. The Series D
Preferred Stock is non-voting except as required by law and are not convertible.
ART is not required to maintain a sinking fund for such stock.
Each Share of Series D Preferred Stock has a cumulative dividend per
share of 9.50% per annum of the $20.00 liquidation preference, payable quarterly
in equal installments of $0.475. Dividends on the Series D Preferred Stock are
in preference to and with priority over dividends upon the ART Common Shares.
The Series D Preferred Stock ranks on a parity as to dividends and upon
liquidation, dissolution or winding up with all other shares of Special Stock.
ART may from time to time after June 1, 2001 redeem any or all of the
Series D Preferred Stock upon payment of the liquidation value of $20.00 per
share plus all accrued and unpaid dividends. There is no restriction on the
repurchase or redemption of the Series D Preferred Stock by ART while there is
any arrearage in payment of dividends except that at the time of such repurchase
or redemption ART must pay all accrued and unpaid dividends on the shares being
redeemed. As of August 25, 1998, there were no shares of Series D Preferred
Stock issued or outstanding.
The Series D Preferred Stock is reserved for issuance upon the
conversion Class A units held by the limited partners of Ocean Beach Partners
L.P.
Series E Preferred Stock. On December 3, 1996, the ART Board designated
80,000 shares of Series E Cumulative Convertible Preferred Stock (the "Series E
Preferred Stock") with a par value of $2.00 per share and a preference on
liquidation of $100 per share plus payment of all accrued and unpaid dividends.
The Series E Preferred Stock is non-voting except as required by law. ART is not
required to maintain a sinking fund for such stock.
Each share of Series E Preferred Stock is convertible into that number
of ART Common Shares obtained by multiplying the number of shares being
converted by $100, then adding all accrued and unpaid dividends on such shares,
then dividing such sum by (in most instances) 80% of the ART Common Share's
then-recent average trading price for the 20 business days ending on the last
business day of the calendar week immediately preceding the date of conversion
on the principal stock exchange on which such ART Common Shares are then listed
or admitted to trading as determined by ART. The schedule pursuant to which
shares of Series E Preferred Stock may be so converted is as follows: up to
30,000 shares of the Series E Preferred Stock may be converted beginning as of
November 4, 1998 and thereafter; up to an additional 10,000 shares of the Series
E Preferred Stock may be converted beginning as of November 4, 1999; and up to
an additional 40,000 shares of the Series E Preferred Stock may be converted
beginning as of November 4, 2001.
The Series E Preferred Stock bears a cumulative dividend per share
equal to $10.00 per annum, payable quarterly in equal installments of $2.50 for
the period from date of issuance to November 4, 1999, and $11.00 per annum
($2.75 per quarter) thereafter. Dividends on the Series E Preferred Stock are in
preference to and with priority over dividends upon the ART Common Shares. The
Series E Preferred Stock ranks on a parity as to dividends and upon liquidation,
dissolution or winding up with all other shares of Special Stock.
ART may redeem any or all of the shares of Series E Preferred Stock
from time to time upon payment of $100.00 per share plus all accrued and unpaid
dividends. There is no restriction on the repurchase or redemption of the Series
E Preferred Stock by ART while there is any arrearage in payment of dividends
except that at the time of such repurchase or redemption ART must pay all
accrued and unpaid dividends on the shares being redeemed. As of August 25,
1998, there were no shares of Series E Preferred Stock issued or outstanding.
The Series E Preferred Stock is reserved for issuance upon the
conversion of Class A units held by the limited partners in the Valley Ranch
Limited Partnership.
Series G Preferred Stock. On September 18, 1997, the ART Board
designated 11,000 shares of Series G Cumulative Convertible Preferred Stock (the
"Series G Preferred Stock") with a par value of $2.00 per share and a preference
on liquidation of $100 per share plus all accrued and unpaid dividends. On May
27, 1998, ART filed articles of amendment to its articles of incorporation
increasing the number of authorized shares of Series G Preferred Stock from
11,000 to 12,000. The Series G Preferred Stock is non-voting except as required
by the Georgia Business Code. The Georgia Business Code grants the holders of
the outstanding shares of a class the authority to vote as a separate voting
group on a proposed amendment if that amendment would effect a detrimental
reclassification of the existing shares, create a new class with preferences
over the existing shares, or cancel or otherwise affect the rights to
distributions and dividends. ART is not required to maintain a sinking fund for
such stock.
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Each share of Series G Preferred Stock is convertible, but only after
October 6, 2000, into that number of ART Common Shares obtained by multiplying
the number of shares of Series G Preferred Stock being converted by $100 and
then dividing such sum by (in most instances) 90% of the simple average of the
daily closing price of the ART Common Shares for the 20 trading days ending on
the last trading day of the calendar week immediately preceding the conversion
on the market where the ART Common Shares are then regularly traded. The right
of conversion shall terminate upon receipt of the notice of redemption from ART
and on the earlier of (i) the commencement of any liquidation, dissolution or
winding up of ART or (ii) the adoption of any resolution authorizing the
commencement thereof. ART may elect to redeem the shares of Series G Preferred
Stock sought to be converted instead of issuing shares of ART Common Stock.
The Series G Preferred Stock bears a cumulative dividend per share
equal to $10.00 per annum, payable in arrears in quarterly equal installments of
$2.50 on each Quarterly Dividend Payment Date, and commencing accrual on the
date of issuance to and including the date on which the redemption price of such
shares is paid. Dividends on the Series G Preferred Stock are in preference to
and with priority over dividends upon the ART Common Shares. The Series G
Preferred Stock ranks on a parity as to dividends and upon liquidation,
dissolution or winding up with all other shares of Special Stock.
ART may redeem any or all of the shares of the Series G Preferred Stock
at any time and from time to time, at its option, for cash upon no less than
twenty (20) days nor more than thirty (30) days prior notice thereof. The
redemption price of the shares of the Series G Preferred Stock shall be an
amount per share equal to the $100 liquidation value plus all accrued and unpaid
dividends on such shares through the redemption date. The right of ART to redeem
shares of Series G Preferred Stock remains effective notwithstanding prior
receipt by ART of notice by any holder of Series G Preferred Stock of such
holder's intent to convert shares of Series G Preferred Stock. As of August 25,
1998 there were 10,000 issued and outstanding shares of Series G Preferred
Stock.
40,000 shares of Series G Preferred Stock have been reserved for
issuance upon the conversion of Class A units held by the limited partners in
Grapevine American, Ltd.
Series H Preferred Stock. On June 26, 1998, the ART Board designated
231,750 shares of Series H Cumulative Convertible Preferred Stock (the "Series H
Preferred Stock") with a par value of $2.00 per share and a preference on
liquidation of $10 per share plus all accrued and unpaid dividends. The Series H
Preferred Stock is non-voting except as required by the Georgia Business Code.
The Georgia Business Code grants the holders of the outstanding shares of a
class the authority to vote as a separate voting group on a proposed amendment
if that amendment would effect a detrimental reclassification of the existing
shares, create a new class with preferences over the existing shares, or cancel
or otherwise affect the rights to distributions and dividends. ART is not
required to maintain a sinking fund for such stock.
Each share of Series H Preferred Stock is convertible at the option of
the holders thereof in the following amounts at any time on or after the
respective dates (i) 25,000 shares on or after December 31, 2000, (ii) 25,000
shares on or after June 30, 2002, (iii) 25,000 shares on or after June 30, 2003,
(iv) 25,000 shares on or after December 31, 2005, and (v) all remaining
outstanding shares on or after December 31, 2006 into that number of ART Common
Shares obtained by multiplying the number of shares of Series H Preferred Stock
being converted by $10 and then dividing such sum by (in most instances) 90% of
the simple average of the daily closing price of the ART Common Shares for the
20 trading days ending on the last trading day of the calendar week immediately
preceding the conversion on the market where the ART Common Shares are then
regularly traded. The right of conversion shall terminate upon receipt of the
notice of redemption from ART and on the earlier of (i) the commencement of any
liquidation, dissolution or winding up of ART or (ii) the adoption of any
resolution authorizing the commencement thereof. ART may elect to redeem the
shares of Series H Preferred Stock sought to be converted instead of issuing
shares of ART Common Stock.
The Series H Preferred Stock bears a cumulative quarterly dividend per
share in an amount equal to (i) 7% per annum during the period from issuance to
June 30, 1999, (ii) 8% per annum during the period from July 1, 1999 to June 30,
2000, (iii) 9$ per annum during the period from July 1, 2000 to June 30, 2001,
and (iv) 10% per annum from July 1, 2001 and thereafter, in each case calculated
on the basis of the adjusted liquidation value of the Series H Preferred Stock,
payable in arrears in cash on each Quarterly Dividend Payment Date, and
commencing accrual on the date of issuance to and including the date on which
the redemption price of such shares is paid. Dividends on the Series H Preferred
Stock are in preference to and with priority over dividends upon the ART Common
Shares. The Series H
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Preferred Stock ranks on a parity as to dividends and upon liquidation,
dissolution or winding up with all other shares of Special Stock.
ART may redeem all or a portion of the shares of the Series H Preferred
Stock issued and outstanding at any time after January 1, 1999 and from time to
time, at its option, for cash upon no less than twenty (20) days nor more than
thirty (30) days prior notice thereof. The redemption price of the shares of the
Series H Preferred Stock shall be an amount per share equal to the sum of (i)
(a) 105% of liquidation value during the period from issuance through December
31, 1999; (b) 104% of liquidation value during the period from January 1, 2000
through December 31, 2000; (c) 103% of liquidation value during the period from
January 1, 2001 through December 31, 2001; (d) 102% of liquidation value during
the period from January 1, 2002 through December 31, 2002; (e) 101% of
liquidation value during the period from January 1, 2003 through December 31,
2003; and (f) 100% of liquidation value from January 1, 2004 and thereafter, and
(ii) all accrued and unpaid dividends on such shares through the redemption
date. The right of ART to redeem shares of Series H Preferred Stock remains
effective notwithstanding prior receipt by ART of notice by any holder of Series
H Preferred Stock of such holder's intent to convert shares of Series H
Preferred Stock. As of August 25, 1998 there were no issued or outstanding
shares of Series H Preferred Stock.
The Series H Preferred Stock is reserved for issuance upon the
conversion of Class A units held by the limited partners in ART Palm, Ltd.
The description of the foregoing provisions of each series of the
Special Stock does not purport to be complete and is subject to and qualified in
its entirety by reference to the definitive Articles of Amendment of the
Articles of Incorporation relating to such series of Special Stock.
DESCRIPTION OF EQK
EQK (sometimes referred to herein as the "Trust") was formed pursuant
to the Declaration of Trust. LLPM, (successor in interest to EQK Partners),
currently acts as the Advisor to EQK. LLPM is a wholly owned subsidiary of ERE,
itself an indirect wholly owned subsidiary of Equitable. Upon consummation of
the Merger, BCM, an affiliate of and advisor to ART, will assume the role of New
Advisor to EQK. See "The New Advisory Agreement Proposal" herein.
EQK has transacted its affairs so as to qualify as, and has elected to
be treated as, a REIT under applicable provisions of the Code. Under the Code, a
REIT that meets applicable requirements is not subject to Federal income tax on
that portion of its taxable income that is distributed to its shareholders. EQK
is currently a closed-end trust (i.e., it may not issue any additional EQK
Shares without the approval of holders of three-quarters of the outstanding EQK
Shares), and, except in limited circumstances, it may not make any additional
real estate investments and is required to distribute to its shareholders the
net proceeds from each sale and financing of any investment. Consequently, EQK
is currently a self-liquidating trust. However, upon consummation of the Merger,
subject to the Requisite Shareholder Approval, the Declaration of Trust will be
amended to extend the term of EQK for an additional 20 years. See "The
Declaration Amendment Proposal" herein.
The principal executive offices of EQK and of the Advisor are located
at 5775 Peachtree Dunwoody Road, Suite 200D, Atlanta, Georgia, 30342, and their
telephone number is (404) 303-6100.
THE BUSINESS OF EQK
GENERAL
EQK was formed for the purpose of acquiring for a finite holding period
a specified portfolio of substantially unleveraged, institutional quality real
estate in order to maximize current distributions of cash flow from operations,
to realize long-term capital appreciation for distribution and to protect its
shareholders' capital. None of EQK's policies may be amended without the
approval of holders of three-quarters of the outstanding EQK Shares. See "The
Declaration Amendment Proposal" herein.
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EQK consummated the public offering of its EQK Shares on March 12,
1985. Certain of the net proceeds to EQK from such offering were expended to
acquire certain properties on March 13, 1985 (which were comprised of the Center
as described below, 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).
The Declaration of Trust currently provides that actual disposition of
the remaining property, the Center, may occur at any time prior to March 1999.
The precise timing of this disposition or an alternative strategic transaction
will be at the discretion of EQK's Board of Trustees, depending on both the
prevailing conditions in the relevant real estate market and the ability of EQK
to extend or refinance its debt maturing in June 1998. For a description of the
Center and certain proposed amendments to the Declaration of Trust, see
"Description of the Center" and "The Declaration Amendment Proposal" herein.
Since December 15, 1992, EQK has had in place a mortgage note (the
"Mortgage Note") with Prudential, 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 agreement 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. Under
the terms of the Mortgage Note, Prudential received the Prudential Warrants.
EQK has also had a term loan (the "Term Loan") in place since December
15, 1992 with PNC Bank Corp. ("PNC"). The Term Loan bears interest at 8.33% per
annum and requires payments at the same annual rate of 8.54% as was required
under the Mortgage Note agreement. The payments made in excess of the interest
rate were applied to the principal balance of the 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.
On December 8, 1995, EQK completed the sale of Castleton, its 44
building office park located in Indianapolis, Indiana. The net proceeds of
$35,990,000 (reduced by customary prorations of $2,517,000) were used to retire
$34,738,000 of the Mortgage Note and $1,252,000 of the Term Loan. At the
original expiration of the Mortgage Note and Term Loan on December 15, 1995, the
remaining balances of $44,125,000 and $1,587,000, respectively, were extended
for one year to December 15, 1996 under terms substantially comparable to those
previously in effect.
The principal balances outstanding under the Mortgage Note and the Term
Loan at December 15, 1996, $43,794,000 and $1,585,000, respectively, were
extended for 18 months through June 15, 1998. The Mortgage Note remains
collateralized by a first mortgage lien on the Center, an assignment of leases
and rents, and certain cash balances. The Term Loan is collateralized by a
subordinate lien on the Center. The Mortgage Note requires payments of interest
only at the rate of 8.88% per annum. The Term Loan reflects the same pay rate of
8.88% that is applicable to the Mortgage Note, but also bears interest at an
accrual rate that re-sets periodically and is computed at EQK's discretion at
either 2 5/8% above the Euro-Rate (as defined in the Term Loan) or 1 1/8% above
the Prime Rate (as defined in the Term Loan). The accrual rate in effect through
May 18, 1997 averaged 8.12%. The difference between the accrual rate and the pay
rate will be subtracted from the principal balance due at maturity.
In consideration for the fixed annual interest accrual rate on the
Mortgage Note, EQK 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 the maturity date of June 15, 1998, or the date at which all or any
part of the original principal amount is prepaid.
EQK's debt instruments (aggregate principal outstanding of $45,376,000)
had scheduled maturity dates of June 15, 1998. While the Mortgage Note holder
has refused to grant an extension of this maturity date, it has agreed to a
forbearance arrangement wherein it will not exercise remedies for non-repayment
of the outstanding principal due through December 15, 1998. The Term Loan holder
has agreed to an extension of the maturity date, also through December 15, 1998.
The forbearance and extension arrangements are conditioned upon, among other
things, EQK continuing to make timely debt service payments in monthly amounts
equal to those amounts stipulated in the December 1996 debt extension
agreements.
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On June 15, 1998 EQK paid deferred loan fees plus interest to the
mortgage note holder in the amount of $309,200 and deferred loan fees to the
term loan holder in the amount of $88,100.
On March 19, 1998, Prudential exercised the Prudential warrants for EQK
Shares. Such shares were issued to Prudential on May 7, 1998 thus bringing the
total number of issued and outstanding EQK Shares to 9,632,212. The net loss per
share as reflected on the statements of operations has been calculated using the
weighted average of the number of shares outstanding during the periods
presented.
In connection with the December 15, 1992 debt financings, EQK issued
1,675,000 previously repurchased EQK Shares to the Advisor for consideration of
$6,700,000, or $4.00 per share. EQK may, at its discretion, reissue the
remaining 791,211 EQK Shares previously repurchased. Any issuance of EQK Shares
in excess of the EQK Shares previously repurchased would require shareholder
approval.
Subject to certain restrictions, EQK is permitted to make additional
real estate investments involving the expansion of its existing properties. EQK
has no intentions of acquiring additional real estate interests, but will make
certain capital expenditures required to maintain or enhance the value of the
Center, including tenant allowances associated with leasing activity.
EQK may make secured or unsecured borrowings to make distributions to
its shareholders and for normal working capital needs, including tenant
alterations and/or allowances and the repair and maintenance of properties in
which it has invested. The Declaration of Trust currently prohibits EQK's
aggregate borrowings from exceeding 75% of its total asset value, as defined
therein. See "The Declaration Amendment Proposal."
EQK will not engage in any business not related to its real estate
investments and, as described below, the Declaration of Trust currently imposes
certain prohibitions and investment restrictions on various investment practices
or activities of EQK. See "The Declaration Amendment Proposal."
SUMMARY OF THE EXISTING DECLARATION OF TRUST
The following is a brief summary of provisions of the Declaration of
Trust not described elsewhere in this Prospectus/Proxy Statement. EQK's
Declaration of Trust provides that each person who becomes an EQK Shareholder
shall as a result thereof be deemed to have agreed to and be bound by the
provisions of the Declaration of Trust.
Reference is made to the Declaration of Trust.
Trustees. The Declaration of Trust provides that the number of Trustees
may be fixed from time to time by the Trustees or by the holders of EQK Shares,
with a minimum of five and a maximum of 12 Trustees, a majority of whom must be
unaffiliated with EQK or LLPM (each, an "Unaffiliated Trustee"). There are
currently seven Trustees, including four Unaffiliated Trustees. Trustees
continue in office until the next annual meeting of shareholders and until their
successors are duly elected and qualified. Vacancies may be filled by a majority
of the remaining Trustees, except that a vacancy among the Unaffiliated Trustees
shall be filled by a majority of the remaining Unaffiliated Trustees, or by the
holders of EQK Shares. Any Trustee may be removed with cause by all the
remaining Trustees, or with or without cause by holders of a majority of the
outstanding EQK Shares.
The Declaration of Trust provides that no Trustee or officer of EQK,
shall be liable to any party (including EQK and its holders of EQK Shares),
except for liability arising from his own bad faith, willful misfeasance, gross
negligence or reckless disregard of his duties. The Declaration of Trust also
provides for indemnification of the Trustees and officers against expense or
liability in any action arising out of such person's activities on behalf of
EQK, except with respect to conduct of the types described above. Therefore, EQK
Shareholders may be entitled to more limited rights of action than those to
which they otherwise would have been entitled absent the limitation on the
Trustees' and officers' liability set forth in the Declaration of Trust.
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Shareholder Liability. The Declaration of Trust provides that the EQK
Shareholders shall not be subject to any liability for the acts or obligations
of EQK and that, as far as practicable, each written agreement of EQK is to
contain a provision to that effect. With respect to all types of claims in such
jurisdictions and with respect to tort claims, contract claims whereas the
shareholder liability is not disavowed as described above, claims for taxes and
certain statutory liabilities in other jurisdictions, an EQK Shareholder may be
held personally liable to the extent that claims are not satisfied by EQK.
However, the Declaration of Trust provides that, upon payment of any such
liability, the EQK Shareholder will be entitled to reimbursement from EQK's
general assets. The Trustees intend to continue to maintain appropriate
insurance and to conduct the operations of EQK, with the advice of counsel, in
such a way as to avoid, as far as practicable, the ultimate liability of the EQK
Shareholders.
Redemption and Prohibition of Transfer of Shares. For EQK to continue
to qualify as a REIT under the Code in any taxable year, not more than 50% of
its outstanding EQK Shares may be owned by five or fewer individuals at any time
during the last half of the taxable year, and the EQK Shares must be owned by
100 or more persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter taxable year. In order to meet these
requirements, the Trustees have power to redeem or prohibit the transfer of a
sufficient number of EQK Shares selected in a manner deemed appropriate to
maintain or bring the ownership of the EQK Shares into conformity with such
requirements. The price to be paid in the event of the redemption of the EQK
Shares will be the last reported sale price of the EQK Shares on the last
business day prior to the redemption date on the NYSE.
Duration and Termination of EQK. If the Merger-Related Proposals do not
receive the Requisite Shareholder Approval, the duration of EQK will terminate
in March of 1999. The Declaration of Trust also permits the holders of a
majority of the outstanding EQK Shares to terminate EQK at any time. Termination
by the Trustees may be effected without any action or consent of the
shareholders, except that any plan for the termination of EQK which contemplates
the distribution to shareholders of securities or other property in kind, other
than the right to receive cash, also requires the affirmative vote of the
holders of three-quarters of the outstanding EQK Shares. See "The Declaration
Amendment Proposal."
Transactions with Affiliates. Affiliates of the Advisor may perform
leasing, property management, or other similar services for EQK, provided that
any such transactions are approved by a majority of the Unaffiliated Trustees
who determine that the compensation is not in excess of any compensation paid to
such affiliates by nonaffiliates for comparable services in the same geographic
area and that the compensation paid is not greater than that generally charged
by competent nonaffiliates for comparable services in the same geographic area.
No properties will be sold to affiliates of the Advisor unless the transaction
is approved by a majority of the Unaffiliated Trustees and of the holders of a
majority of the outstanding EQK Shares. In addition, no such sale is permitted
unless the sale price is equal to or greater than the independently appraised
value of the property being sold.
Amendment of Declaration of Trust; Merger. The Declaration of Trust may
be amended, or EQK may be merged into a successor entity, by the majority vote
of the Trustees (including a majority vote of the Unaffiliated Trustees in the
case of a merger) and by vote of the holders of a majority of the outstanding
EQK Shares, except that the holders of three-quarters of the outstanding EQK
Shares must approve any amendment that would alter any of EQK's investment or
operational policies. In addition, two-thirds of the Trustees may, without the
approval or consent of the shareholders, adopt any amendment which they in good
faith determine to be necessary to permit EQK to continue to qualify as a REIT
under the Code, or to comply with other Federal laws or regulations or to comply
with state securities laws or the requirements of administrative agencies
thereunder. The Trustees may also, without the vote or consent of the
shareholders, change the name of EQK to a name that does not include any name
similar to that of LLPM or any affiliate thereof.
Prohibited Activities and Investments. EQK may not currently engage in
any business not related to its real estate investments and, in that regard, the
Declaration of Trust currently imposes certain prohibitions and investment
restrictions on various investment practices or activities of EQK, including a
prohibition against investing in any mortgage, other than purchase money
mortgages designed to facilitate the sale of EQK's real estate investments,
provided that the term of any such purchase money mortgage does not exceed the
remaining term of EQK as described above under "--Duration and Termination of
EQK."
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PROPERTY MANAGEMENT AGREEMENT
EQK has also entered into a property management agreement with ERE
Retail, Inc. (the "Property Manager", formerly Compass Retail, Inc.), for the
on-site management of the Center. Management fees paid to the Property Manager
are generally based upon a percentage of rents and certain other charges. EQK
believes that such fees are comparable to those charged by unaffiliated
third-party management companies providing comparable services. For the years
ended December 31, 1997, 1996, and 1995, management fees paid to the Property
Manager were $307,000, $297,000, and $291,000, respectively. For the six months
ended June 30, 1998, management fee expense attributable to services rendered by
the Property Manager was $74,000.
In connection with the redevelopment of the Center's outparcel
building, the Property Manager received a $150,000 development fee in 1995.
SELECTED FINANCIAL DATA OF EQK
The selected historical financial data of EQK set forth below has been
derived from the financial statements of EQK as they appeared in EQK's Forms
10-K filed with the Commission for each of the five fiscal years in the period
ended December 31, 1997.
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<TABLE>
<CAPTION>
As of and for the six
months ended June 30, As of and for the YEARS ENDED DECEMBER 31,
------------------------------------ --------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues from rental
operations ....................... $ 1,728 $ 1,355 $ 6,158 $ 6,174 $ 15,761 $ 16,512 $ 18,458
Write down of
investments in real
estate (a) .................... -- -- -- -- (3,200) -- --
Loss before gain on sales
of real estate and
extraordinary loss ............ (480) (853) (1,961) (1,488) (6,575) (3,459) (2,351)
Gain on sales of
real estate (b) ......... -- -- -- -- 229 -- 282
Loss before extraordinary
gain .......................... (480) (853) (1,961) (1,488) (6,346) (3,459) (2,069)
Extraordinary loss from
early retirement
of debt (c) ................... -- -- -- -- -- -- (1,711)
Net loss ......................... (480) (853) (1,961) (1,488) (6,346) (3,459) (3,780)
Per share data (d) Loss per share:
Loss before gain on
sales of real estate and
extraordinary loss ......... $ (0.05) $ (0.09) $ (0.21) $ (0.16) $ (0.71) $ (0.37) $ (0.25)
Loss before
extraordinary loss ........ $ (0.05) $ (0.09) $ (0.21) $ (0.16) $ (0.68) $ (0.37) $ (0.22)
Net loss .................... $ (0.05) $ (0.09) $ (0.21) $ (0.16) $ (0.68) $ (0.37) $ (0.41)
Dividends declared .......... -- -- -- -- -- -- --
Total assets ..................... 49,930 45,419 45,067 46,830 48,209 90,258 93,163
Long-term obligations:
Mortgage notes payable,
net of imputed interest
and discount .................. 45,376 45,379 45,379 45,379 45,712 80,032 78,727
Shareholders' equity
(deficit) ................... (5,462) (3,874) (4,982) (3,021) (1,533) 4,813 8,176
</TABLE>
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(a) To the extent that the net cost investment in any property exceeds its
current market value, an allowance is recorded to adjust the net
investment to management's estimate of net realizable value. The
write-downs in 1995 related to EQK's investment in Castleton, a
commercial office complex located in Indianapolis, Indiana.
(b) In 1995, EQK sold its remaining interest in Castleton and recognized a
gain on the sale of $229,000. In 1993, EQK sold its remaining two
buildings at Peachtree Dunwoody Pavilion, a commercial office complex
in Atlanta, Georgia, and recognized a gain on the sale of $282,000.
(c) In 1993 EQK retired mortgage notes assumed in connection with its
purchase of the Center and recognized an extraordinary charge to
earnings of $1,711,000.
(d) Calculation is based on 9,264,344 weighted average shares outstanding
during all periods presented, except for the six months ended June 30,
1998 during which there were 9,376,127 weighted average shares
outstanding.
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS OF EQK
FINANCIAL CONDITION
CAPITAL RESOURCES
EQK Background
At June 30, 1998, EQK's remaining real estate investment is the Center,
a regional shopping center located in Harrisburg, Pennsylvania. During 1995, EQK
sold its remaining interest in Castleton Park, an office park located in
Indianapolis, Indiana. During 1993, EQK sold its two remaining office buildings
within its office complex located in Atlanta, Georgia, formerly known as
Peachtree-Dunwoody Pavilion. Prior to 1993, EQK sold two office buildings at
Castleton (1991) and five office buildings at Peachtree (1992).
The Declaration of Trust currently provides that the actual disposition
of the remaining property, the Center, may occur at any time prior to March
1999. The Declaration of Trust further provides that this date may be extended
by up to two years upon the recommendation of the Trustees and the affirmative
vote of a majority of its shareholders. Based on the finite-life provisions of
the Declaration of Trust, EQK's management has been pursuing the disposition of
its remaining real estate investment and/or an alternative strategic
transaction.
Effective December 23, 1997, EQK entered into an Agreement and Plan of
Merger, pursuant to which an affiliate of ART is to merge with and into EQK,
with EQK being the surviving entity. The Merger contemplates, among other
things, a 20-year extension of the life of EQK.
Delays in completing the Merger as originally proposed required certain
revisions to the Merger Agreement, the most significant of which are the right
of EQK's management to dispose of The Center and to distribute the proceeds of
such sale to EQK's shareholders prior to completing the Merger and a
corresponding reduction in the Merger consideration to be paid to EQK's
shareholders. EQK's management commenced marketing and sales activities during
the second quarter of 1998 including the retention of an outside broker, and
anticipates that a sale of the Center will be completed prior to December 15,
1998, which is the date the current forbearance agreement with the primary
lender of EQK's mortgage indebtedness terminates.
Upon completion of the sale of the Center, and subject to shareholder
approval, the Merger would be effected according to the terms of the Merger
Agreement. Pursuant to the Merger Agreement, immediately prior to the closing of
the Merger, ART is expected to convey one of its properties to EQK I. ART will
provide 100% of the financing for this property contribution via a non-recourse
note. The Merger Agreement is in the final stages of negotiation. The
description of the Merger Agreement herein reflects the terms as currently
contemplated.
ART has agreed to permit EQK I to continue to solicit, or respond to,
offers from third parties for the post- Center sale entity. In the event EQK I
accepts an offer from a party other than ART and elects not to proceed with the
Merger, EQK I will pay ART a "break-up" fee of $200,000 plus its share of
transaction expenses.
The Merger Agreement may be terminated by EQK I if any of the following
conditions exist: (i) the Merger has not been accomplished by December 15, 1998;
(ii) EQK I secures a more favorable offer from another party subject to the
payment of a break-up fee; or (iii) if the Merger Agreement in any way impairs
or delays the sale of The Center, or is likely to result in a material reduction
in proceeds.
Proceeds from the sale of The Center and, if applicable, the completion
of the Merger, will be distributed to the shareholders of EQK I once EQK's
liabilities have been settled (including the retirement of its Mortgage Note and
Term Loan) and related transaction costs have been paid.
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The Merger is contingent upon, among other things, ART's registration
statement relating to ART Preferred Shares to be issued pursuant to the Merger
Agreement, as revised, being declared effective by the Securities Exchange
Commission, and the affirmative vote of the holders of 75% of the outstanding
shares of EQK.
EQK, its trustees, and LLPM have been named as defendants in a
purported class action complaint filed in Massachusetts state court, which seeks
to enjoin the Merger. The complaint also seeks other relief including
unspecified damages. EQK believes the action to be without merit.
On April 23, 1998, the NYSE announced that trading in the common stock
of EQK would be suspended prior to the opening of the NYSE on May 4, 1998, as
EQK did not meet the NYSE's continued listing criteria. Following suspension,
application was made by the NYSE to the Securities and Exchange Commission to
delist the issue. Subsequent to this delisting, a market for the EQK Shares has
been created on the OTC Bulletin Board System.
Overview of the Center
Over the past several years, the retail industry has experienced a
significant number of retail store mergers and bankruptcies. Consolidations
within the retail industry and the financial difficulties experienced by
individual retailers have, in turn, led to a high level of unanticipated store
closings and requests for rent relief within regional shopping malls.
At the Center, the current state of the retail industry has impacted
both its department stores and its smaller specialty stores. Two of the
department stores operating in 1994 have since closed, Hess's (November 1994)
and John Wanamaker (October 1995). These department store spaces remained "dark"
for substantial periods of time pending the opening of their replacements,
Hecht's (October 1995) and Lord & Taylor (March 1997).
Mortgage Debt Extensions
On December 15, 1996 EQK extended the maturity dates on the remaining
balances of its Mortgage Note ($43,794,000) and Term Loan ($1,585,000) for a
period of 18 months (extended maturity date, June 15, 1998). The terms of such
debt facilities pursuant to the extensions are substantially comparable to the
terms in effect since the original issuance date, December 15, 1992, except as
described below. The Mortgage Note and Term Loan were previously extended from
their original maturity date on December 15, 1995 to December 15, 1996. The
Mortgage Note remains collateralized by a first mortgage lien on the Center, an
assignment of leases and rents, and certain cash balances. The Term Loan is
collateralized by a subordinate lien on the Center.
The Mortgage Note agreement has been amended to provide for monthly
payments of interest only accruing at the rate of 8.88% per annum ($324,000 per
month). This interest rate reflects an increase from the 8.54% interest rate in
effect during the previous extension period (December 16, 1995 to December 15,
1996). The average rate in effect during the initial three year term of the debt
was 9.79% per annum.
In consideration for the extension of the maturity date of the Mortgage
Note agreement through June 15, 1998, EQK 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 the maturity date of June 15, 1998, or the date
at which all or any part of the original principal amount is prepaid. In
consideration for the extension of the maturity date of the Term Loan through
June 15, 1998, EQK incurred an extension fee of $23,800.
The Term Loan reflects the same pay rate of 8.88% that is applicable to
the Mortgage Note, but accrues interest at a rate that re-sets periodically. The
accrual rate is computed at EQK'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 16, 1998 was 8.25%. The difference between the
accrual rate and the pay rate will be reflected in the principal balance due at
maturity.
EQK's debt instruments (aggregate principal outstanding of $45,376,000)
had scheduled maturity dates of June 15, 1998. While the Mortgage Note holder
has refused to grant an extension of this maturity date, it has agreed to a
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forbearance arrangement wherein it will not exercise remedies for non-repayment
of the outstanding principal due through December 15, 1998. The Term Loan holder
has agreed to an extension of the maturity date, also through December 15, 1998.
The forbearance and extension arrangements are conditioned upon, among other
things, EQK continuing to make timely debt service payments in monthly amounts
equal to those amounts stipulated in the December 1996 debt extension
agreements.
On June 15, 1998 EQK paid deferred loan fees plus interest to the
mortgage note holder in the amount of $309,200 and deferred loan fees to the
term loan holder in the amount of $88,100.
On March 19, 1998, Prudential exercised the Prudential warrants for EQK
Shares. Such shares were issued to Prudential on May 7, 1998 thus bringing the
total number of issued and outstanding EQK Shares to 9,632,212. The net loss per
share as reflected on the statements of operations has been calculated using the
weighted average of the number of shares outstanding during the periods
presented.
One of the conditions of the Mortgage Note was the establishment of a
capital reserve account, which is maintained by a third-party escrow agent and
from which expenditures must be approved by the lender. The cash balance of
EQK's capital reserve account at March 31, 1998 was $432,000. EQK's management
believes the current cash balance in this account, coupled with additional cash
flows projected to be generated from operations, will be sufficient to fund the
Center's capital expenditure requirements discussed below.
LIQUIDITY
The comparability of the Statements of Cash Flows during 1995 to 1997
is affected by the property disposition and debt repayments that occurred during
1995 as discussed below.
For the six months ended June 30, 1998, cash flows used in operating
activities primarily represent the payment of the deferred loan fees of $361,000
and related accrued interest on the fees of $36,300. These fees were accrued and
paid in connection with the extension of the term loan agreement through June
15, 1998.
During 1997, EQK generated cash flows from operating activities of
$208,000, a decrease of $1,009,000 from the prior year's operating cash flow of
$1,217,000. Operating cash flow comparisons were impacted by two 1996
non-recurring events which essentially offset one another, the refund of
previously paid real estate taxes at Peachtree Dunwoody Pavilion as discussed in
Note 10 to the financial statements ($268,000), and the repayment of a $300,000
loan to the Advisor in 1996 as discussed in Note 8 to the financial statements.
The decrease in operating cash flows from 1996 was primarily attributable to a
decrease in the Center's's cash flows from operations due to the receipt of
lease cancellation income ($451,000) in 1996. Also contributing to the decrease
is an increase in accounts receivable from certain anchor tenants of $390,000
due to the timing of collection of the 1997-1998 tax reimbursements.
Additionally, interest payments increased by $136,000 from prior year. The
increase in interest is a result of an increase in the mortgage note interest
rate to 8.88% from 8.54% effective with the December 15, 1996 mortgage note
extension agreement.
During 1996, the cash flows provided by operating activities increased
by $94,000 compared to 1995. This increase in operating cash flows was primarily
attributable to a decline in cash paid for interest following the December 1995
partial repayment of mortgage debt ($2,816,000), an increase in the Center's
cash flows from operations related to the receipt of lease termination fees
($451,000) and the accelerated collections of real estate tax recoveries
($150,000), and the receipt of a $268,000 refund in 1996 of previously paid real
estate taxes related to reductions in the 1991 and 1992 assessed values of
Peachtree (see Note 10). These increases were partially offset by the loss of
Castleton's operating cash flow following the sale in December 1995 (which
amounted to $3,656,000 in 1995).
Cash flows used in investing activities for the six months ended June
30, 1998 and 1997 were for routine capital expenditures at The Center. EQK
anticipates capital expenditures of approximately $1,760,000 for the remainder
of 1998, which include budgeted tenant allowances of approximately $1,330,000
and other expenditures of approximately $430,000. Certain of these expenditures
are discretionary in nature and may be deferred into future periods.
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Cash flows used in investing activities during 1997 were $546,000. The
1997 results reflect the costs associated with a parking lot repavement project
and the payment of build out allowances to tenants at the Center. Cash flows
used in investing activities during 1996 ($195,000) were primarily for the
payment of tenant allowances.
Net cash provided by investing activities in 1995, $33,145,000, was due
to the receipt of proceeds from the sale of Castleton, $38,507,000, partially
offset by additional investments in real estate, including $3,440,000 related to
the redevelopment of the Center outparcel building.
The cash flows used in financing activities for the six months ended
June 30, 1998 are limited to principal payments on EQK's term loan. The mortgage
note requires monthly payments of interest only.
There were no cash flows used in financing activities during 1997.
Pursuant to the mortgage debt extension effective December 15, 1996, the
Mortgage Note and Term Loan generally require monthly payments of interest only.
Cash flows used in financing activities during 1996 ($333,000) were
limited to scheduled principal payments on EQK's debt.
Net cash used in financing activities in 1995, $35,997,000, primarily
related to the application of sales proceeds of $35,990,000 (net of customary
prorations) to retire a portion of EQK's mortgage indebtedness.
EQK will make certain capital expenditures to maintain or enhance the
value of the property, including tenant allowances associated with leasing
activity. EQK anticipates making capital expenditures in 1998 of up to
$2,200,000, which include budgeted tenant allowances of $1,700,000. Certain of
these expenditures are discretionary in nature and therefore may be deferred
into future periods.
EQK's liquidity requirements for the remainder of 1998 also will
include principal and interest payments of approximately $2,015,000 pursuant to
the existing loan agreements. The loan agreements specify that the remaining
loan balances of $45,376,000 be paid in full by December 15, 1998.
EQK's cash management agreement stipulates that all rental payments
from tenants are to be made directly to a third party escrow agent that also
funds monthly operating expenses in accordance with a budget approved by the
lender. EQK believes that its cash flow for 1998 will be sufficient to fund its
various operating requirements, including budgeted capital expenditures and
monthly principal and interest payments, although its discretion with respect to
cash flow management will be limited by the terms of the cash management
agreement. EQK's management believes that EQK's current cash reserves, coupled
with additional cash flow projected to be generated from operations, will permit
EQK to meet its operating, capital and monthly debt service requirements.
EQK records its investments in real estate in accordance with the
historical cost accounting convention. Accordingly, EQK has not written up the
cost basis of its investment in the Center to its substantially higher net
realizable value. Therefore, EQK's management does not believe that its deficit
in shareholders' equity of $5,462,000 at June 30, 1998 is indicative of its
current liquidity or the net distribution that its shareholders would receive
upon liquidation.
EQK has commenced efforts to sell the Center. EQK's management
anticipates that a sale of the Center will be completed prior December 15, 1998,
which is the date the current forbearance agreement with the primary lender of
EQK's mortgage indebtedness terminates. Proceeds from the sale of the Center
and, if applicable, the completion of the Merger, will be distributed to the
shareholders of EQK once EQK's liabilities have been settled (including the
retirement of its mortgage note and term loan) and related transaction costs
have been paid.
EQK recognizes that the arrival of the Year 2000 poses a unique
worldwide challenge to the ability of all systems to recognize the date change
from December 31, 1999 to January 1, 2000. Both LLPM and property manager are
working diligently to assess and modify (as necessary) the computer applications
and business processes used to service EQK to provide for their continued
functionality. If the sale of the Center and the Merger with ART occur as
currently proposed, the current property manager and LLPM will cease providing
services to EQK by December 31,
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1998. If, subsequent to the sale of the Center, the Merger is approved and EQK
continues as an operating entity, affiliates of ART will provide property
management and advisory services on an ongoing basis. EQK is not aware of any
critical deficiencies with respect to Year 2000 compliance in the business
systems of these affiliates. However, there can be no assurance that all
business critical systems will be fully Year 2000 compliant, or that the
consequences of any systems deficiencies will not have a material adverse affect
on EQK.
RESULTS OF OPERATIONS
For the six months ended June 30, 1998, EQK reported a net loss of
$480,000 ($.05 per share) compared to a net loss of $853,000 ($.09 per share)
for the six months ended June 30, 1997. For the three months ended June 30,
1998, EQK reported net loss of $145,000, while the three months ended June 30,
1997 reported a net loss of $375,000.
For the year ended December 31, 1997, EQK reported a net loss of
$1,961,000 ($.21 per share) compared to net losses of $1,488,000 ($.16 per
share) and $6,346,000 ($.71 per share) for the years ended December 31, 1996 and
1995, respectively. The year ended December 31, 1995 includes a write-down of
the investment in Castleton of $3,200,000 ($.35 per share) and the gain on the
sale of Castleton of $229,000 ($0.03 per share).
EQK's revenues from rental operations for the three and six months
ended June 30, 1998 were $1,337,000 and $2,890,000, respectively. This
represents a decrease of $220,000 for the second quarter and $80,000 for the six
month period as compared to the prior periods presented. The decrease in
revenues for the quarter is attributable to the non- recurrence of a one-time
adjustment made in the second quarter of 1997 related to the recovery of income
from one of the Center's department stores. For the six month period, this
decrease is partially offset by an increase in the Center's fixed minimum rents.
This increase is due to increased rental payments from certain tenants whose
payment obligations had been reduced in prior years pursuant to the exercise of
co-tenancy provisions in their lease agreements associated with anchor store
vacancies. With the opening of Lord & Taylor on March 10, 1997, such provisions
expired and these tenants reverted to paying fixed minimum rent.
EQK's revenues for the year ended December 31, 1997 were $6,158,000,
which represented a $16,000 decrease from the 1996 amount of $6,174,000. Rental
revenues in 1997 increased by approximately $379,000 over 1996. A portion of
this increase, $103,000, was a result of increased rent payments from certain
tenants whose payment obligations had been reduced in prior years pursuant to
the exercise of cotenancy provisions in their lease agreements and short-term
rent relief agreements associated with anchor store vacancies. The remaining
increase in rental revenues from 1996 ($276,000) is attributable to a non-cash
adjustment to straight-line rents made in 1996. The increases in 1997 rental
revenues, however, were offset by the non-recurrence of lease termination fees
and other miscellaneous income recorded in 1996.
EQK's revenues for the year ended December 31, 1996 were $6,174,000,
which represented a $9,587,000 decrease from the 1995 amount of $15,761,000.
This decline was primarily due to the sale of Castleton, which accounted for
revenues of $9,554,000 for the year ended December 31, 1995. The Center's 1996
rental revenues declined from amounts recognized in 1995 due to the effects of
tenant bankruptcies and short-term rent relief agreements ($216,000), lower
percentage rent due to decreases in certain tenants' sales volumes ($90,000),
and a non-cash adjustment to the calculation of minimum rents recognized on a
straight-line basis over the terms of the tenant leases ($276,000). However,
such decreases were substantially offset by collections of lease termination
fees of $451,000 and an increase of $135,000 in temporary tenant rental
revenues.
EQK's expenses for three and six months ended June 30, 1998 were
$281,000 and $439,000, respectively, representing an increase of $80,000 for
both the quarter and year to date as compared to the same periods in 1997. This
variance is attributable to the sum of several operating expense variances, none
of which are individually significant.
The decrease in the depreciation and amortization expense between
periods is primarily due to the cessation of depreciation and amortization
expense relating to the real estate investment and deferred leasing costs.
Operating expenses (net of reimbursements from tenants) for the year
ended December 31, 1997 were $1,083,000, which represented an increase of
$196,000 from the 1996 amount of $887,000. This increase is primarily
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due to a decrease in common area maintenance expense recoveries of $84,000 due
to lower average occupancy levels in 1997. Also, bad debt expenses increased by
$82,900 from 1996 due to tenant bankruptcies.
Operating expenses (net of reimbursements from tenants) for the year
ended December 31, 1996 were $887,000, which declined from the related 1995
amounts of $5,403,000. The decline is primarily due to the sale of Castleton,
which accounted for expenses of $4,600,000 for the year ended December 31, 1995.
This decline in annual expenses was offset by a net increase in the Center's
operating expenses of $77,000. The annual increase was due to an increase in bad
debt expenses of $151,000 due to the non-recurrence of collections in 1995 of
previously reserved tenant receivables and an increase in administrative
expenses of $50,000. These increases were offset by decreases in advertising
expenses of $94,000 and sales tax expenses of $53,000 attributable to
non-recurring items in 1995.
Other income of $268,000 and $400,000 was recorded in 1996 and 1995,
respectively, relating to refunds of previously paid real estate taxes for
Peachtree Dunwoody Pavilion and Castleton. No such similar events occurred
during 1997.
Interest expense for the years ended December 31,1997, 1996, and 1995
was $4,046,000, $3,896,000, and $8,302,000, respectively. The increase in
interest expense in 1997 as compared to 1996 is due to an increase in the
mortgage note interest rate to 8.88% from 8.54% effective with the December 15,
1996 mortgage note extension agreement. The decrease in interest expense in 1996
as compared to 1995 is primarily attributable to the lower average debt balances
outstanding in 1996 following the mortgage debt repayment in December 1995, as
well as decreases in the interest accrual rates for both the Mortgage Note and
Term Loan.
Other expenses-net consist of portfolio management fees, other costs
related to the operation of EQK, and interest income earned on cash balances.
Other expenses decreased $298,000 in 1997 from 1996 amounts. This decrease is
primarily attributable to the recognition of imputed interest on deferred
advisory fees in 1996 of $302,000.
Other expenses-net decreased $227,000 in 1996 from 1995 balances. The
decrease is primarily due to a decrease in portfolio management and other
professional fees.
As discussed in the liquidity section above, EQK's management believes
that its existing cash reserves and its anticipated cash flow generated from
operations will be sufficient to meet its capital and monthly debt service
requirements. However, due to the effects of non-cash accounting adjustments
(principally depreciation and amortization), EQK's management anticipates that
EQK will incur losses in the future comparable to the loss recognized in 1997.
There is no assurance that future results will not be materially affected
(positively or negatively) by, among other factors, changes in mall occupancy
and rental rates, significant deviations in operating expenses, changes in
interest rates and transaction costs incurred in connection with sale and
financing transactions.
DESCRIPTION OF THE EQK SHARES
EQK is currently authorized to issue 10,055,555 EQK Shares, and the EQK
Board may not currently issue any additional EQK Shares unless such issuance is
approved by the holders of three-quarters of the outstanding EQK Shares. Upon
consummation of the Merger, the Declaration of Trust will be amended to remove
all limitations on the number of EQK Shares that EQK shall have the authority to
issue. See "The Declaration Amendment Proposal." The EQK Shareholders are
entitled to receive and to participate ratably in dividends, when and as
declared by the EQK Board out of any funds legally available for such purpose,
and, in the event of termination of EQK or upon the distribution of its net
assets, to receive and to participate ratably in payments and distributions. All
EQK Shares have equal voting rights. The EQK Shares do not have any preference,
appraisal, conversion, exchange or preemptive rights. Outstanding EQK Shares are
freely transferable, except that in certain limited circumstances the EQK Board
may refuse to transfer EQK Shares or may compel redemption of EQK Shares. See
"The Business of EQK -- Summary of the Existing Declaration of Trust --
Redemption and Prohibition of Transfer of Shares." The outstanding EQK Shares
have been legally issued and are fully paid and nonassessable, except to the
extent of any personal liability of the EQK Shareholders as described herein
under "The Business of EQK -- Summary of the Existing Declaration of Trust --
Shareholder Liability." At any meeting of the holders of EQK Shares, each EQK
Shareholder is entitled to one vote for each EQK Share owned without cumulative
voting with respect to the election of Trustees and with respect to all other
matters as to which the
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vote of the EQK Shareholders may from time to time be required or permitted
under the Declaration of Trust. The EQK Shareholders may vote by proxy provided
that proxies are placed on file with EQK before the time of voting.
According to EQK's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998, there were 9,632,212 outstanding EQK Shares. It is a
condition of the Merger that 9,632,212 EQK Shares are outstanding immediately
prior to the consummation of the Merger. In addition, according to EQK's
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1998, there
were 234 holders of record of EQK Shares. Although EQK does not know the exact
number of beneficial holders of its shares, EQK estimates that the number
exceeds 1,500.
EQK has appointed Chase Mellon Shareholder Services as its registrar
and transfer agent.
On April 23, 1998, the New York Stock Exchange announced that trading
in the common stock of EQK Realty Investors I would be suspended prior to the
opening of the NYSE on May 4, 1998, as it had fallen below the NYSE's continued
listing criteria. The EQK Shares are currently traded in the over-the-counter
market.
COMPARISON OF EQK SHARES TO ART PREFERRED SHARES
The following is a brief summary comparison of certain of the principal
terms of the EQK Shares and the ART Preferred Shares.
<TABLE>
<CAPTION>
EQK Shares ART Preferred Shares
---------- --------------------
<S> <C> <C>
Interest/Dividend Rate......... No stated rate. Each EQK Share is entitled to 10% per annum, payable quarterly, on a
receive quarterly distributions of cash flow cumulative, compounded basis, and commencing
generated from operations in excess of accrual on the date of issuance.
operating expenses, capital expenditures, debt
service, working capital and reasonable
reserves. No dividends have been paid in
respect of the EQK Shares since 1994.
Optional Redemption............ Not applicable, except that the EQK Board has ART may redeem any or all of the ART Preferred
the power to redeem or prohibit the transfer Shares at any time and from time to time, at
of a sufficient number of EQK Shares selected its option, for cash upon no less than 20 days
in a manner deemed appropriate to maintain or nor more than 30 days prior notice thereof.
bring the ownership of the EQK Shares into The redemption price of the ART Preferred
conformity with the real estate investment Shares shall be an amount per share equal to
trust requirements of the Code. (i) 104% of the Adjusted Liquidation Value
during the period from August 16, 1998 through
August 15, 1999; and (ii) 103% of the Adjusted
Liquidation Value at any time on or after
August 16, 1999.
Ranking........................ The EQK Shares are the only class of shares Shall rank on a parity as to dividends and
currently authorized by the Declaration of upon liquidation, dissolution or winding up
Trust. However, upon completion of the Merger, with all other shares of Special Stock issued
the by ART and shall be
</TABLE>
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<PAGE> 123
<TABLE>
<S> <C> <C>
Declaration of Trust may be amended to provide senior to ART Common Shares. ART shall not
for the issuance of Additional EQK Shares or issue any shares of Special Stock of any
other types of securities, certain of which series which are superior to the ART Preferred
may have preferences senior to the EQK Shares. Shares as to dividends or rights upon
liquidation, dissolution or winding up of ART
as long as any shares of the ART Preferred
Shares are issued and outstanding, without the
prior written consent of the holders of 662/3%
of such ART Preferred Shares then outstanding
and voting separately as a class.
Voting Rights.................. One vote per EQK Share. Non-voting except (i) as provided by law, (ii)
with respect to an amendment to ART's articles
of incorporation or bylaws that would
materially alter or change the existing terms
of the ART Preferred Shares, and (iii) at any
time or times when all or any portion of the
dividends on the ART Preferred Shares for any
six quarterly dividends, whether or not
consecutive, shall be in arrears and unpaid.
New York Stock Exchange
Listing...................... On May 4, 1998 the EQK Shares were delisted Application will be made to list the ART
from the NYSE. Preferred Shares on the NYSE.
Dividends Received
Deductions................... Distributions on the EQK Shares are not Dividends on the ART Preferred Shares are
eligible for the dividends received deduction eligible for the dividends received deduction
for corporate holders. for corporate holders. The dividends received
deduction is not applicable to individual,
non-corporate holders.
</TABLE>
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<PAGE> 124
<TABLE>
<S> <C> <C>
Conversion..................... Not Applicable. Convertible into ART Common Shares at the
option of the holder after the earliest to
occur of (i) the August 15, 2003; (ii) the
first business day, if any, occurring after a
Quarterly Dividend Payment Date on which
dividends equal to or in excess of 5% of the
Liquidation Value is accrued and unpaid, or
(iii) ART becomes obligated to mail a
statement to the holders of record of each of
the ART Preferred Shares because of a proposal
by ART to merge or consolidate with or into
any other corporation (unless ART is the
surviving entity), or to sell, lease, or
convey all or substantially all its property
or business, or to liquidate, dissolve or wind
up. Each ART Preferred Share is convertible
(in most instances) into that number of ART
Common Shares obtained by dividing (i) the sum
of the Adjusted Liquidation Value of such ART
Preferred Share plus all accrued and unpaid
dividends on such ART Preferred Share to the
date of conversion by (ii) the Conversion
Price. The Conversion Price will be the amount
(rounded upward to the nearest cent) equal to
90% of the simple average of the daily closing
price of the ART Common Shares for the twenty
business days ending on the last business day
of the calendar week immediately preceding the
date of conversion on the principal stock
exchange on which such ART Common Shares are
then listed. ART may elect to redeem ART
Preferred Shares that are submitted for
conversion as described herein.
</TABLE>
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<PAGE> 125
DESCRIPTION OF THE HARRISBURG EAST MALL
GENERAL
The Center is a two-level enclosed regional mall shopping center
located approximately three miles from the central business district of
Harrisburg, Pennsylvania, the state capital. It contains approximately 851,000
gross leasable square feet anchored by three major department stores: J.C.
Penney, Hecht's, and Lord & Taylor. The Center is located on a site of
approximately 64 acres with paved surface parking for approximately 4,763
automobiles (5.5 spaces per 1,000 gross leasable square feet). ERE Yarmouth
Retail currently manages the Center.
The total building area of the Center is allocated as shown in the
table below.
<TABLE>
<CAPTION>
Approximate
Number of Gross
Store Spaces at Leasable Area % of Total Occupancy %
Dec.31, 1997 (Sq. Ft.) Building Area at 12/31/97
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Gross Leasable area
Anchor stores 3 514,565 51.6% 100.0%
Mall stores 106 284,260 28.5 80.8
Other stores in free-standing building 3 52,345 5.2 87.8
---------- ---------- ----------
Total Gross leasable area 112 851,170 85.30 92.8%
========== ---------- ---------- ==========
Common area 146,371 14.70
---------- ----------
Total building area 997,541 100.0%
========== ==========
</TABLE>
LOCATION AND TRADE AREA OVERVIEW
The Center is located in Dauphin County, Pennsylvania, near the
intersection of Paxton Street (U.S. Route 322) and Interstate 83. The Center 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.
The primary trade area for the Center encompasses the populated section
of Dauphin County, Pennsylvania, and along with small adjacent portions of
Cumberland and Perry Counties, Pennsylvania, comprises the Harrisburg
Metropolitan Statistical Area (the "Harrisburg M.S.A."). In total, the
Harrisburg M.S.A. encompasses 1,991 square miles.
Harrisburg, the capital of the Commonwealth of Pennsylvania, is
situated in south-central Pennsylvania on the banks of the Susquehanna River,
between Philadelphia and Pittsburgh. The Harrisburg M.S.A. is ranked 85th in
regard to size among metropolitan areas in the United States. The Harrisburg
M.S.A. is an area which has experienced moderate economic and demographic growth
in the recent past. Historically a center for agriculture and manufacturing, the
area's economy has become increasingly more diversified with strong job growth
experienced in services-related employment. In addition, as the state capital,
the area is a center for government and government related employment. Similar
to many areas nationally, demographic growth in the Harrisburg M.S.A. is
projected to occur at a more moderate rate relative to past levels. However, the
Harrisburg M.S.A. remains economically vital.
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<PAGE> 126
ANCHOR TENANTS
The Center has three department stores, two of which are currently
occupied by J.C. Penney and Hecht's, a division of May Department Stores Co.
("May Company"), which replaced Hess' in November 1995. The third department
store space was formerly occupied by John Wanamaker, which closed in October
1995 following Woodward & Lothrop's (the owner of John Wanamaker) sale of
certain department stores in this retail chain to May Company pursuant to an
August 1995 bankruptcy court auction. Given its existing presence at the Center
through its recently- opened Hecht's department store, May Company initially
pursued an assignment of this leasehold interest to other retail operators
before deciding in May 1996 to instead open a Lord & Taylor (a division of May
Company) department store in this location. The execution of such lease
agreement has resulted in, among other things, the termination of the legal
proceedings initiated by EQK against May Company in March 1996 following May
Company's failure to open or cause another retail operator to open for business
once the John Wanamaker store closed, which was a violation of a continuous
operating covenant contained in its lease agreement.
Lord & Taylor opened its newly renovated store on March 10, 1997.
Initially, Lord & Taylor had projected an opening prior to the 1996 holiday
shopping season. However, issues affecting construction scheduling delayed the
opening date.
The three anchor tenants lease their stores and the underlying land
pursuant to leases which are summarized below.
<TABLE>
<CAPTION>
Anchor Tenant Area Minimum Expiration Renewal
------------- (Sq. Ft.) Annual Rent Date Options
--------- ----------- ---- -------
<S> <C> <C> <C> <C>
Hecht's 187,280 $200,000 1/31/2007 3-10 yr. options
J.C. Penney 153,770 $300,000 3/31/2001 6-5 yr. options
Lord & Taylor 173,515 $150,000 10/31/2005 3-10 yr. options
</TABLE>
MALL AND OTHER TENANTS
At June 30, 1998, the Center had 81 mall and out parcel tenants
(excluding anchor store tenants) occupying approximately 284,000 square feet of
gross leaseable area, representing an occupancy rate of 82% and approximately
57,000 square feet were vacant. The gross leaseable area of the mall is divided
evenly between national and regional/local tenants. Exclusive of the anchor
stores, no tenant occupies more than 10% of the gross leasable area of the
Center.
[Remainder of Page Intentionally Left Blank]
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<PAGE> 127
LEASE EXPIRATIONS
The following table shows selected vacancy and lease expiration
information for the tenants of the mall and outparcel stores at December 31,
1997:
<TABLE>
<CAPTION>
% of
Gross 1997 Aggregate 1997
Number of Leased Minimum Minimum
Leases Area Annual Annual
Year Expiring (a) (Sq. Ft.) Rent Rent
------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Month to Month 5 10,696 198,594 4.0%
1998 13 12,588 288,670 5.9%
1999 4 5,637 148,558 3.0%
2000 11 33,461 526,178 10.6%
2001 8 16,107 426,772 8.7%
2002 8 19,458 305,537 6.2%
2003 9 24,579 487,722 9.9%
2004 5 8,794 234,666 4.8%
2005 7 59,271 637,112 12.9%
2006 6 28,174 489,776 9.9%
2007 and thereafter 5 56,804 444,494 9.0%
----- ---------- ---------- ----------
TOTAL 81 275,569 4,188,079 84.9%
========== ==========
</TABLE>
(a) Assumes no renewal options will be exercised in order to show the earliest
termination of the leases.
CAPITAL REQUIREMENTS
EQK will make certain capital expenditures to maintain or enhance the
value of The Center, including tenant allowances associated with leasing
activity. EQK anticipates making capital expenditures in 1998 of $2,200,000,
which include budgeted tenant allowances of $1,700,000. Certain of these
expenditures are discretionary in nature and therefore may be deferred into
future periods.
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<PAGE> 128
One of the conditions of the Mortgage Note was the establishment of a
capital reserve account, which is maintained by a third-party escrow agent and
from which expenditures must be approved by Prudential. The balance of this
account at December 31, 1997 was $1,852,000. Management of EQK believes the
current cash balance in this account will be sufficient to fund the Center's
capital expenditures requirements.
OCCUPANCY DATA AND AVERAGE EFFECTIVE ANNUAL RENT
Information regarding occupancy rates and average effective annual rent
for the property, including anchor and outparcel tenants, is set forth below:
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Occupancy Rate (a) 92.8% 93.7% 73.6% 94.3% 96.9%
============= ============= ============= ============= =============
Total Annual Minimum Rent (b) $ 5,005,603 $ 4,902,122 $ 5,110,162 $ 5,973,828 $ 5,943,748
Total Percentage Rent 193,019 225,419 269,558 294,591 154,039
------------- ------------- ------------- ------------- -------------
Total Annual Effective Rent $ 5,198,622 $ 5,127,541 $ 5,379,720 $ 6,268,419 $ 6,097,787
============= ============= ============= ============= =============
Average Annual Rent
Per Square Foot (c)
Mall Anchor Tenants $ 1.29 $ 1.37 $ 1.32(d) $ 1.67 $ 1.71
Outparcel Stores $ 7.38 $ 7.44 $ 6.91 $ 5.69 $ 6.30
Mall Tenants $ 18.18 $ 17.08 $ 16.46 $ 16.55 $ 15.48
All Tenants $ 6.58 $ 6.26 $ 6.44(d) $ 7.49 $ 7.16
</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, EQK and
May Company executed a lease agreement that provides for the opening of a Lord &
Taylor department store. The December 31, 1996 occupancy rate includes the
occupancy of Lord & Taylor, which opened for business on March 10, 1997.
(b) Total minimum annual rent and percentage rent represents actual tenant
rental income for each calendar year, and does not include 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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<PAGE> 129
(d) The decrease in mall anchor tenant average rent per square foot in 1995 and
average rent per square foot for all tenants is principally due to the
replacement of the Hess department store with Hecht's in November 1994, and
Hecht's expansion into an adjacent basement space. Hecht's now occupies 187,280
square feet at $1.07 per square foot, whereas Hess formerly occupied 139,656
square feet at $2.18 per square foot.
COMPETITION
The following table provides selected information with respect to
certain existing competitors of the Center. Each property is located within
eight miles of the Mall. Additional information with respect to Colonial Park
Plaza, Capital City Mall and Camp Hill Shopping Center, the primary competitors
of the Center, is set forth below.
<TABLE>
<CAPTION>
Gross Leasable
Shopping Center Type of Center Area (Sq. Ft.) Anchor Stores
--------------- -------------- -------------- -------------
<S> <C> <C> <C>
Colonial Park Plaza Enclosed one level 765,000 Sears, The Bon Ton, Boscov's
regional mall
Capital City Mall Enclosed one level 565,000 Sears, Hecht's, JC Penney
regional mall
Camp Hill Shopping Center Enclosed one level mall 506,000 Boscov's, Montgomery Ward,
Giant Grocery Store
Union Square Power Center 289,000 Dunham Sports, Office Max,
Gabriel Bros., Weis, Chuck E.
Cheese
Colonial Commons Power Center 429,000 Giant Grocery Store, Service
Merchandise, Montgomery
Ward, AMC Theater, RX
Place
Point Shopping Center Strip Center 277,000 U.S. Factory Outlet,
Burlington Coat , Long Horn
Steakhouse
</TABLE>
The boundaries of the trade area for the Center are influenced by the
existence of natural boundaries, competing developments, and demographic
characteristics. The Susquehanna River splits the Harrisburg market in two,
creating the East and West shores. The Center is located in Dauphin County in
the East shore area. The Mall's 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 Center consists of three regional centers
located in the Harrisburg trade area: Colonial Park Plaza, Capital City Mall,
and Camp Hill Shopping Center.
Colonial Park Plaza, which opened in 1960, is located approximately
five miles north of the Center in the primary trade area, and contains 762,000
square feet of gross leasable area. It is anchored by The Bon-Ton, Sears, and
Boscov's, contains 90 in-line specialty retailers and as of December 31, 1996
had an occupancy percentage of 90%. In
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<PAGE> 130
1990, this one-level center was renovated and expanded to include a food court
and additional specialty shops. Colonial Center continues to be Harrisburg
East's primary competitor due to the strength of Boscov's and its tenant mix,
which is very similar to that found at Harrisburg.
Capital City Mall, a one-level center which opened in 1974, is located
eight miles west of the Center in the secondary trade area. The center contains
approximately 722,000 square feet of gross leasable area and is anchored by
Hecht's, JC Penney, and Sears. As of December 31, 1996 it was 97.7% occupied,
with a strong concentration of boutique style retailers, and with the addition
of Hecht's and JC Penney in 1995, offers the same anchor appeal as the Center.
Camp Hill Shopping Center, a former community center originally
constructed in 1959, was completely enclosed and renovated in 1987. Camp Hill is
located approximately eight miles west of the Center in the secondary trade
area, and contains approximately 505,700 square feet. The center is anchored by
Boscov's and Montgomery Ward, and also contains a 42,000 square foot Pathmark
Superstore. The tenant mix is mostly comprised of local retailers and occupancy
at 95.0% at December 31, 1996.
DEBT
As previously discussed, EQK's management is pursuing an extension of
EQK's mortgage debt to at least the end of the year. As described herein under
"The Business of EQK," EQK completed an 18 month extension of its existing
mortgage debt aggregating $45,379,000 effective December 1996 (maturity date of
June 15, 1998). The following table sets forth certain information regarding the
outstanding debt. Both the Mortgage Note and the Term Loan may be prepaid in
full without penalty.
<TABLE>
<CAPTION>
Principal
Principal Annual Debt Balance at
Balance as of Service Maturity Maturity
Lender Annual Rate 1997 (000's) (000's) Date (000's)
------ ----------- ------------ ------- ---- -------
<S> <C> <C> <C> <C> <C>
Prudential 8.88%(a) $43,794 $3,888 6/15/98 $ 43,794
PNC 8.88%(b) 1,585 132 6/15/98 1,585(2)
</TABLE>
- ---------------
(a) The extended Mortgage Note Agreement with Prudential requires monthly
interest only payments of $324,000, at 8.88%. In consideration for the fixed
annual interest accrual rate, EQK 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 the maturity date of June 15, 1998, or the date at
which all or any part of the original principal amount is prepaid.
(b) The extended Term Loan Agreement with PNC provides for the accrual interest
rate to be re-set periodically, and is computed at EQK's discretion at either 2
5/8% above the Euro-Rate (as defined in the Term Loan Agreement) or 1 1/8% above
the Prime Rate (as defined in the Term Loan Agreement). The accrual rate in
effect as of March 16,1998 is 8.25%. The differential between the accrual rate
and the pay rate of 8.88% will be added or subtracted to the principal balance
due at maturity. In consideration for the extension of the maturity date of the
Term Loan through June 15, 1998, EQK incurred an extension fee of $23,800.
PHYSICAL DESCRIPTION OF BUILDINGS
The enclosed shopping mall and the anchor stores are two-level
buildings of steel frame and masonry construction with reinforced concrete
foundations and four-ply built-up roofs. The free-standing building is a
one-level
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building of similar construction, containing convenience-type shops. The
exterior of the mall consists of stone and brick walls and the anchor stores are
of complimentary finishes. The mall's two levels are connected by two escalators
and two stairways. All mall tenants and the anchor stores have their own air
handling units which are supplied with chilled and hot water from a central
plant. The free-standing building is served by roof-top cooling units which are
predominantly of the packaged, self-contained type with gas heating sections.
PHYSICAL IMPROVEMENTS
Since acquiring the Mall in 1985, EQK has undertaken several physical
improvement programs. In 1987, EQK 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, EQK 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 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 EQK to renovate the common areas and the exterior facade of the
Mall. This renovation was completed in 1993 for a cost of approximately
$4,000,000. The project included a complete refurbishment of the property's
interior common area, with new floors, finishes, and lighting throughout.
Upon the expansion of Hecht's into the basement space previously
occupied by Toys 'R' Us (approximately 51,400 square feet), EQK renovated
Harrisburg East Mall's outparcel building (approximately 51,000 square feet) to
accommodate the relocation of Toys 'R' Us for 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.
In anticipation of the opening of Lord & Taylor in the former John
Wanamaker anchor space, May Company (Lord & Taylor's parent company) completed a
major renovation of this anchor store location. EQK's management believes that
May Company has spent approximately $10,000,000 on renovations and improvements.
APPRAISAL OF THE CENTER
EQK has received an appraisal from an unaffiliated third-party
appraiser (the "Independent Appraiser") with respect to the market value of the
Center. Based upon the analysis set forth in such appraisal, the Independent
Appraiser estimates that the market value of the leasehold interest (subject to
occupancy leases) of the Center, on a free and clear basis as of December 31,
1997, was $62,300,000. In arriving at its appraised value for the Center, the
Independent Appraiser considered relevant economic and market factors, including
population, employment and other demographic factors and the impact of
competition from other shopping centers in the Harrisburg M.S.A.
REAL ESTATE TAXES
Real estate taxes are levied against the Center for county and
township, and school tax purposes. County and township taxes are due March 1 and
school taxes are payable on September 1. Harrisburg paid $1,035,000 in real
estate taxes in 1997. The 1997 millage rate was 28.39. Though the county lowered
the assessed value of Harrisburg East in 1997, the decrease in tax expense
associated with the lower assessed value was offset by a rate increase announced
by the county of approximately 2 millage points. Real estate taxes are
substantially reimbursed by the tenants through real estate tax recovery
billings.
DEPRECIATION
As of December 31, 1997, for Federal income tax purposes, EQK
depreciates its assets under the ACRS and the MACRS as follows:
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Buildings:
Gross Federal Income Tax Basis $50,284,000
Accumulated Depreciation $15,586,000
Depreciation Method Straight Line
Depreciable Life 40 Years
Land Improvements:
Gross Federal Income Tax Basis $ 2,585,000
Accumulated Depreciation $ 248,000
Depreciation Method Straight Line
Depreciable Life 40 Years
Personal Property:
Gross Federal Income Tax Basis $ 185,000
Accumulated Depreciation $ 115,000
Depreciation Method Straight Line*
Depreciable Life 10 Years*
*Except for automobiles which are depreciated over a range of 3 to 7
years using the double declining balance method.
ADDITIONAL INFORMATION
For additional information concerning the Center, see EQK's 1997 Form
10-K, filed with the Commission on March 31, 1998, each of which is incorporated
by reference herein.
SELECTED UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION OF ART AND EQK
The following unaudited pro forma combined financial information of ART
and EQK presents the historical consolidated balance sheets and statements of
operations of ART and EQK after giving effect to the Merger. The unaudited pro
forma combined balance sheet data at June 30, 1998 gives effect to the Merger as
if it had occurred on June 30, 1998. The unaudited pro forma combined statements
of operations for the six months ended June 30, 1998 and the fiscal year ended
December 31, 1997 gives effect to the Merger as if it had occurred on January 1,
1997. These statements have been prepared on the basis of accounting for the
Merger as a purchase of an investment in an equity method investee and are based
on the assumptions set forth in the notes thereto.
The following unaudited pro forma combined financial information has
been prepared from, and should be read in conjunction with, the consolidated
financial statements and related notes thereto of ART as set forth herein and
the consolidated financial statements and related notes thereto of EQK included
elsewhere in this Prospectus/Proxy Statement. The following information is not
necessarily indicative of the financial position or operating results that would
have occurred had the Merger been consummated on the date as of which, or at the
beginning of the periods for which, the Merger is being given effect, nor is it
necessarily indicative of future operating results or financial position.
See "Incorporation of Certain Documents by Reference."
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AMERICAN REALTY TRUST, INC.
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
June 30, 1998
<TABLE>
<CAPTION>
Proforma Proforma
Historical Adjustments Combined
------------ ----------- --------
Assets (dollars in thousands, except per share)
<S> <C> <C> <C>
Notes and interest receivable, net of allowances
for estimated losses ....................... $ 173 $ 1,534 (4) $ 1,707
Real estate held for sale, net of accumulated
depreciation ............................... 185,454 -- 185,454
Real estate held for investment, net of
accumulated depreciation ................... 213,168 (1,534)(4) 211,634
Pizza parlor equipment, net of accumulated
depreciation ............................... 7,347 -- 7,347
Marketable equity securities at market
value ...................................... 6,196 -- 6,196
Cash and cash equivalents ........................ 4,649 {(91)(3)} 3,858
{(700)(5)}
Investments in equity investees .................. 61,671 {1,312 (1)} 64,509
{735 (2)}
{91 (3)}
{700 (5)}
Intangibles, net of accumulated
amortization ............................... 15,086 -- 15,086
Other assets ..................................... 26,262 -- 26,262
------------ ------------ ---------
Total ............................................ $ 520,006 $ 2,047 $ 522,053
============ ============ =========
</TABLE>
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AMERICAN REALTY TRUST, INC.
UNAUDITED PRO FORMA COMBINED BALANCE SHEET - CONTINUED
JUNE 30, 1998
<TABLE>
<CAPTION>
Proforma Proforma
Historical Adjustments Combined
------------ ------------ ------------
(dollars in thousands, except per share)
<S> <C> <C> <C>
Liabilities and Stockholders' Equity
Liabilities
Notes and interest payable ...................... $ 342,679 $ -- $ 342,679
Margin borrowings ............................... 56,185 -- 56,185
Accounts payable and other liabilities .......... 23,924 -- 23,924
------------ ------------ ------------
422,788 -- 422,788
Minority interest ............................... 28,921 -- 28,921
Stockholders' Equity
Preferred Stock, $2.00 par value,
authorized 20,000,000 shares, issued
and outstanding
16,681 shares Series C ................ 33 -- 33
(liquidation preference $1,668)
3,304,763 shares Series F ............. 5,600 {263(1)} 6,010
(liquidation preference $33,048) ...... {147(2)}
1,000 shares Series G ................. 2 -- 2
(liquidation preference $100)
Common Stock, $.01 par value, authorized
100,000,000 shares, issued 13,492,800
shares .................................... 135 -- 135
Paid-in capital ................................. 83,691 {1,049(1)} 85,328
{588(2)}
Accumulated (deficit) ........................... (21,137) -- (21,137)
Treasury stock at cost, 2,737,216 shares ........ (27) -- (27)
------------ ------------ ------------
Total Stockholders' Equity ...................... 68,297 2,047 70,344
------------ ------------ ------------
Total Liabilities and Stockholders' Equity ...... $ 520,006 $ 2,047 $ 522,053
============ ============ ============
</TABLE>
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AMERICAN REALTY TRUST, INC.
NOTES TO UNAUDITED PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1998
NOTE 1. Purchase of an aggregate of 4,376,056 EQK Shares from LLPM,
Summit, Sutter and Halperin at $0.30 per EQK Share, paid
in ART Preferred Shares valued for this purpose at the liquidation
value of $10.00 per ART Preferred Share.
NOTE 2. Purchase of 673,976 newly issued EQK Shares for consideration of
$1.09 per share in ART Preferred Shares valued for this purpose at the
liquidation value of $10.00 per ART Preferred Share.
NOTE 3. Cash payment of $0.10 per EQK Share held by remaining 5% holder in
consideration for its execution of Standstill Agreement.
NOTE 4. Sale of Oak Tree Village to EQK for a $2,780,000 wraparound
mortgage note receivable. Deferred gain on sale of 1,246,000 offset
against note receivable.
NOTE 5. Payment of remaining closing costs related to stock purchase/merger
transaction.
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AMERICAN REALTY TRUST, INC.
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
Proforma Proforma
Historical Adjustments Combined
------------ ------------ ------------
(dollars in thousands, except per share)
<S> <C> <C> <C>
Revenues
Sales ................................. $ 14,085 $ -- $ 14,085
Rents ................................. 27,308 (245)(1) 27,063
Interest .............................. 154 140(2) 294
Other ................................. (608) -- (608)
------------ ------------ ------------
40,939 (105) 40,834
Expenses
Cost of sales ......................... 12,005 -- 12,005
Property operations ................... 21,204 (58)(1) 21,146
Interest .............................. 22,537 -- 22,537
Advisory and servicing fees ........... 1,709 -- 1,209
General and administrative ............ 4,227 -- 4,227
Depreciation and amortization ......... 2,959 (37)(1) 2,922
Minority interest ..................... 933 -- 933
------------ ------------ ------------
65,574 (95) 65,479
------------ ------------ ------------
(Loss) from operations ...................... (24,635) 10 (24,625)
Equity in income of investees ............... 21,330 {(51)(3)} 21,137
{(142)(4)}
Gain on sale of real estate ................. 8,974 -- 8,974
------------ ------------ ------------
Net income .................................. 5,669 (183) 5,486
Preferred dividend requirement .............. (135) (102)(5) (237)
------------ ------------ ------------
Net income applicable to
Common shares ............................... $ 5,534 $ (285) $ 5,249
============ ============ ============
Earnings per share
Net income .................................. $ 0.53 $ 0.49
============ ============
Weighted average Common shares used in
computing earnings per share .......... 10,724,507 10,724,507
============ ============
</TABLE>
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AMERICAN REALTY TRUST, INC.
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
NOTE 1. Elimination of rents, operating expenses and depreciation of Oak
Tree Village sold to EQK for a $2,780,000 wraparound mortgage note
receivable.
NOTE 2. Interest income on wraparound mortgage note receivable secured by
Oak Tree Village.
NOTE 3. Equity in proforma net loss of EQK for the six months ended June
30, 1998 (pro forma net loss of ($104,000) times ART's ownership
percentage of 49%).
NOTE 4. Amortization of cost in excess of net book value of EQK Shares
acquired (proforma net book value at June 30, 1998 of zero, plus
purchase price assigned to EQK investment of $2,838,000 equals
$2,838,000 or ART's excess of cost over proforma net book value of EQK
Shares amortized over 10 years.
NOTE 5. Dividend requirement on ART Preferred Shares (204,763 shares times
$.50 per share).
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AMERICAN REALTY TRUST, INC.
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
Proforma Proforma
Historical Adjustments Combined
------------ ------------ ------------
(dollars in thousands, except per share)
<S> <C> <C> <C>
Income
Sales ................................................. $ 17,926 $ -- $ 17,926
Rents ................................................. 29,075 (485)(1) 28,590
Interests ............................................. 2,835 310 (2) 3,145
Other ................................................. 135 -- 135
------------ ------------ ------------
49,971 (175) 49,976
Expenses
Cost of sales ......................................... 14,492 -- 14,492
Property operations ................................... 24,195 (191)(1) 24,004
Interest .............................................. 30,231 -- 30,231
Advisory and servicing fees ........................... 2,657 -- 2,657
General and administrative ............................ 6,997 -- 6,997
Depreciation and amortization ......................... 3,338 (59)(1) 3,279
Minority interest ..................................... 1,445 -- 1,445
------------ ------------ ------------
83,355 (250) 83,105
------------ ------------ ------------
(Loss) from operations ...................................... (33,384) 75 (33,309)
Equity in income of investees ............................... 10,660 { (80)(3)} 10,296
........................................................... { (284)(4)}
Gain on sale of real estate ................................. 20,296 -- 20,296
------------ ------------ ------------
Net (loss) .................................................. (2,428) (289) (2,717)
Preferred dividend requirement .............................. (206) (205)(5) (411)
------------ ------------ ------------
Net (loss) applicable to Common shares ...................... $ (2,634) $ (494) $ (3,128)
============ ============ ============
Earnings per share
Net (loss) .................................................. $ (0.22) $ (0.27)
============ ============
Weighted average Common shares used in
computing earnings per share .......................... 11,710,013 11,710,013
============ ============
</TABLE>
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<PAGE> 139
AMERICAN REALTY TRUST, INC.
NOTES TO UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
NOTE 1. Elimination of rents, operating expenses and depreciation of Oak
Tree Village sold to EQK for a $2,780,000 wraparound mortgage note
receivable.
NOTE 2. Interest income on wraparound mortgage note receivable secured by
Oak Tree Village.
NOTE 3. Equity in net loss of EQK for the year needed December 31, 1997
(pro forma net loss of ($368,000) times ART's ownership percentage of
49%).
NOTE 4. Amortization of cost in excess of net book value of EQK Shares
acquired (pro forma net book value at December 31, 1997 of zero plus
purchase price assigned to EQK investment of $2,838,000 equals
$2,838,000 or ART's excess of cost over net book value of EQK Shares
amortized over 10 years.
NOTE 5. Dividend requirement on ART Preferred Shares (204,763 shares times
$1.00 per share).
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EQK REALTY INVESTORS 1
UNAUDITED PRO FORMA BALANCE SHEET
JUNE 30, 1998
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENTS
-----------------------------------------
DISPOSITION PURCHASE OF
OF OAK TREE
ASSETS HISTORICAL THE CENTER (a) SUBTOTAL VILLAGE (b) PRO FORMA
----------- -------------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Investment in real estate $ -- $ -- $ -- $ 2,780 $ 2,780
Real estate held for sale 39,019 (39,019) -- -- --
Cash and cash equivalents:
Cash Management Agreement 2,126 (2,126) -- -- --
Other 875 (780) 95 -- 95
Accounts receivable and other assets
(net of allowance of $213 in the historical 1,910 (1,910) -- -- --
presentation)
----------- ----------- ----------- ----------- -----------
TOTAL ASSETS $ 43,930 $ (43,835) $ 95 $ 2,780 $ 2,875
=========== =========== =========== =========== ===========
LIABILITIES AND DEFICIT IN SHAREHOLDERS'
EQUITY
Liabilities:
Mortgage note payable $ 43,794 $ (43,794) $ -- $ 2,780 $ 2,780
Term loan payable to bank 1,582 (1,582) -- -- --
Accounts payable and other liabilities (including 4,016 (3,921) 95 -- 95
amounts due affiliates of $3,105 in the
historical presentation)
----------- ----------- ----------- ----------- -----------
49,392 (49,297) 95 2,780 2,875
Deficit in Shareholders' Equity:
Shares of beneficial interest, without par value: 135,875 (135,875) -- -(e) --
10,055,555 shares authorized 9,632,212
shares issued and outstanding in the
historical presentation and an unlimited
number of shares authorized,
10,306,188 shares issued and
outstanding in the pro forma
presentation
Accumulated deficit (141,337) 141,337 -- -- --
----------- ----------- ----------- ----------- -----------
(5,462) 5,462 -- -- --
----------- ----------- ----------- ----------- -----------
TOTAL LIABILITIES AND DEFICIT IN
SHAREHOLDERS' EQUITY $ 43,930 $ (43,835) $ 95 $ 2,780 $ 2,875
=========== =========== =========== =========== ===========
</TABLE>
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EQK REALTY INVESTORS 1
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENTS
-----------------------------------------
DISPOSITION PURCHASE OF
OF OAK TREE
HISTORICAL THE CENTER(c) SUBTOTAL VILLAGE(d) PRO FORMA
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Revenues from rental operations $ 6,158 $ (6,158) $ -- $ 357 $ 357
Operating expenses, net of tenant reimbursements 1,083 (1,083) -- 63 63
(including property management fees
earned by an affiliate of $307 in the
historical presentation and $24 in the pro
forma presentation)
Depreciation and amortization 2,532 (2,532) -- 92 92
----------- ----------- ----------- ----------- -----------
Income from rental operations 2,543 (2,543) -- 202 202
Interest expense 4,046 (4,046) -- 310 310
Other expenses, net of interest income (including 458 (108) 350 25 375
portfolio management fees earned by an
affiliate of $242 in the historical
presentation and $21 in the pro forma
presentation)
----------- ----------- ----------- ----------- -----------
Net loss $ (1,961) $ 1,611 $ (350) $ (133) $ (483)
=========== =========== =========== =========== ===========
Weighted average shares outstanding 9,264,344 9,264,344 673,976 9,938,320
Net loss per share $ (0.21) $ (0.04) $ (0.05)
=========== =========== ===========
</TABLE>
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EQK REALTY INVESTORS 1
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Pro Forma Adjustments
------------------------------------------
DISPOSITION PURCHASE OF
OF OAK TREE
HISTORICAL THE CENTER (c) SUBTOTAL VILLAGE(d) PRO FORMA
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Revenues from rental operations $ 2,890 $ (2,890) $ -- $ 182 $ 182
Operating expenses, net of tenant reimbursements 439 (439) -- (5) (5)
(including property management fees earned
by an affiliate of $146 in the historical
presentation and $12 in the pro forma
presentation)
Depreciation and amortization 723 (723) -- 46 46
------------ ------------ ------------ ------------ ------------
Income from rental operations 1,728 (1,728) -- 141 141
Interest expense 2,023 (2,023) -- 140 140
Other expenses, net of interest income (including 185 (68) 117 10 127
portfolio management fees earned by an
affiliate of $118 in the historical presentation
and $10 in the pro forma presentation)
------------ ------------ ------------ ------------ ------------
Net income (loss) $ (480) $ 363 $ (117) $ (9) $ (126)
============ ============ ============ ============ ============
Weighted average shares outstanding 9,376,127 -- 9,376,127 673,976 10,050,103
Net loss per share $ (0.05) $ (0.01) $ (0.01)
============ ============ ============
</TABLE>
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EQK REALTY INVESTORS I
NOTES TO UNAUDITED PRO FORMA FINANCIAL INFORMATION
The Unaudited Pro Forma Statement of Operations for the year ended December 31,
1997 is derived from the historical Statement of Operations included herein and
in the Annual Report on Form 10-K for the year ended December 31, 1997. The
Unaudited Pro Forma Balance Sheet as of June 30, 1998 and the Unaudited Pro
Forma Statement of Operations for the six months ended June 30, 1998 are derived
from the historical statements included herein and in the Quarterly Report on
Form 10-Q for the quarter ended June 30, 1998.
The pro forma financial information should be read in conjunction with the
Trust's historical Financial Statements and Notes thereto contained herein and
in the Annual Report on Form 10-K for the year ended December 31, 1997 and the
Quarterly Report on Form 10-Q for the quarter ended June 30, 1998. The pro forma
financial information does not purport to be indicative of the results of
operations or the financial position which would have actually resulted if the
sale transaction had been consummated on the date indicated. In addition, the
pro forma financial information does not purport to be indicative of the results
of operations or financial position which may be obtained in the future.
The Unaudited Pro Forma Adjustments are comprised of the following:
(a) The June 30, 1998 Unaudited Balance Sheet Pro Forma Adjustments reflecting
the disposition of the Center have assumed a sale price enabling EQK to
recover the carrying value of its remaining assets and settle all of its
liabilities. Such a sale price is not necessarily indicative of a sale
price that could be achieved through negotiation between parties in a sale
transaction. The Merger is conditioned upon, among other things, EQK's sale
of the Center and distributions of the remaining net proceeds to the EQK
shareholders. It is Management's intent to sell the Center and distribute
any remaining net proceeds.
(b) The June 30, 1998 Unaudited Balance Sheet Proforma Adjustments reflecting
EQK's acquisition of Oak Tree Village from ART reflect total consideration
for the acquisition of The Oak Tree Village of $2,780,046 and the
assumption of existing debt of $1,530,046 and a non-recourse promissory
note by EQK payable to ART in the amount of $1,250,000.
(c) The Unaudited Proforma Statements of Operations adjustments reflecting the
disposition of The Center for the year ended December 31, 1997 and the six
months ended June 30, 1998 consist of: (i) the elimination of the results
of operations of The Center; (ii) the elimination of interest expense on
the debt of EQK which will be repaid with the proceeds from the sale of The
Center; and (iii) an adjustment to management fees resulting from the
disposal of The Center.
(d) The Unaudited Proforma Statements of Operations adjustments reflecting the
acquisition of Oak Tree Village for the year ended December 31, 1997 and
the six months ended June 30, 1998 consist of: (i) the addition of the
historical results of operations of Oak Tree Village; (ii) the elimination
of historical depreciation and amortization of Oak Tree Village; (iii) the
addition of depreciation and amortization of the purchase price of Oak Tree
Village using the historical depreciation and amortization policies of EQK;
and (iv) the addition of interest expense related to debt assumed as part
of the acquisition of Oak Tree Village.
(e) In conjunction with the Merger, EQK will issue 673,976 EQK shares to ART.
ART will issue to the Public EQK Shareholders, for each EQK Share currently
owned, $0.14 per EQK Share in the form of 0.01400 of an ART Preferred Share
with a Liquidation Value of $10.00 per share.
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<PAGE> 144
PLAN OF DISTRIBUTION
The Dealer Manager, an affiliate of ART and BCM, will distribute the EQK Merger
Consideration to EQK Shareholders residing in the states of Florida, Kansas,
Missouri, New Jersey, North Carolina, North Dakota and Vermont on ART's behalf.
The Merger Agent will distribute the EQK Merger Consideration to all other EQK
Shareholders on ART's behalf.
The Dealer Manager and the Merger Agent will be entitled to indemnifications by
ART against certain civil liabilities, including liabilities under the
Securities Act, or to contribution by ART to payments they may be required to
make in respect thereof. The Dealer Manager is an affiliate of ART and may
engage in transactions with, or perform services for ART in the ordinary course
of business.
LEGAL MATTERS
The validity of the shares of ART Preferred Shares offered hereby has been
passed upon for ART by Holt Ney Zatcoff & Wasserman, LLP, Atlanta, Georgia.
Certain matters in connection with the Merger will be passed upon for EQK by its
special Massachusetts counsel, Palmer & Dodge, Boston, Massachusetts. The
federal income tax consequences of the Merger have been passed upon by Andrews &
Kurth L.L.P., Dallas, Texas.
EXPERTS
The financial statements and schedules of ART included and incorporated by
reference in this Prospectus/Proxy Statement have been audited by BDO Seidman,
LLP, independent certified public accountants, to the extent and for the period
set forth in their reports appearing elsewhere herein and in the Registration
Statement, and such reports are included herein in reliance upon the authority
of said firm as experts in auditing and accounting.
The financial statements as of December 31, 1997 and 1996 and for each of the
three years in the period ended December 31, 1997 and the related financial
statement schedule as of December 31, 1997 of EQK included and incorporated by
reference in this Prospectus/Proxy Statement have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports, which are included
and incorporated by reference herein, and have been so included and incorporated
in reliance upon the reports of such firm given upon their authority as experts
in accounting and auditing.
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<PAGE> 145
APPENDIX A
GLOSSARY OF SELECT TERMS
<TABLE>
<CAPTION>
TERM DEFINED AS (PART OF PROXY STATEMENT/PROSPECTUS)
---- -----------------------------------------------
<S> <C>
5% Holder . . . . . . . . . . . . . . . . Each EQK Shareholder holding 5% or more of the issued and
outstanding EQK Shares, excluding LLPM, Summit, Sutter and
Halperin (Summary)
ADA . . . . . . . . . . . . . . . . . . . Americans with Disabilities Act of 1980 (Risk Factors)
Advisor . . . . . . . . . . . . . . . . . Lend Lease Portfolio Management, Inc., in its capacity as
advisor to EQK (Summary)
Advisory Agreement . . . . . . . . . . . Agreement between LLPM and EQK, with LLPM as EQK's Advisor
(Summary)
Affiliated REITs . . . . . . . . . . . . CMET, IORI and TCI (The Business of ART)
ART Board . . . . . . . . . . . . . . . . Board of Directors of American Realty Trust, Inc. (Summary)
ART Common Shares . . . . . . . . . . . . Shares of ART Common Stock (Prospectus Cover Pages)
ART Designated Trustees . . . . . . . . . Persons designated by ART to become the New EQK Board (The
Board Election Proposal)
ART Form 10-K . . . . . . . . . . . . . . ART's Annual Report on Form 10-K for the year ended
December 31, 1997 (Summary)
ART Merger Consideration . . . . . . . . 3,129,859 EQK Shares ART will be entitled to receive as
consideration for the Merger (Prospectus Cover Pages)
ART Newco . . . . . . . . . . . . . . . . ART Newco, LLC, a Massachusetts limited liability company
(Prospectus Cover Pages)
ART Preferred Shares . . . . . . . . . . ART's Series F Cumulative Convertible Preferred Stock with a
par value of $2.00 per share and a stated Liquidation Value of
$10.00 per share (Prospectus Cover Pages)
ART . . . . . . . . . . . . . . . . . . . American Realty Trust, Inc., a Georgia corporation (Prospectus
Cover Pages)
BCM . . . . . . . . . . . . . . . . . . . Basic Capital Management, Inc., a Nevada corporation and an
affiliate of ART (Summary)
Block Purchase . . . . . . . . . . . . . ART's purchase of an aggregate of 3,123,556 EQK Shares from
LLPM, Greenspring and Halperin, pursuant to separate stock
purchase agreements (Prospectus Cover Pages)
Board Election Proposal . . . . . . . . . Proposal to elect specific members to the EQK Board at the EQK
Annual Meeting. The Board Election Proposal will require the
affirmative vote of EQK Shareholders representing a majority of
the total votes authorized to be cast by EQK Shares then
outstanding which are present at the EQK Annual Meeting in
person or by proxy and entitled to vote thereon
(Summary)
</TABLE>
-129-
<PAGE> 146
<TABLE>
<S> <C>
Campbell Associates................................... Campbell Center Associates, Ltd. (The Business of ART)
Carmel Realty......................................... Carmel Realty, Inc., owned by First Equity
(Description of ART)
Carmel, Ltd........................................... Carmel Realty Services, Ltd., an affiliate of BCM (Description of
ART)
Cash Distribution Agreement........................... July 15, 1998 agreement between NRLP, SAMLP and the NRLP
Oversight Committee (The Business of ART)
Center................................................ Harrisburg East Mall, EQK's only current real estate investment
(Summary)
CMET.................................................. Continental Mortgage and Equity Trust, an affiliate of ART
(Incorporation of Certain Information by Reference)
Code.................................................. Internal Revenue Code of 1986 (Summary)
Commission............................................ Securities and Exchange Commission (Prospectus Cover Pages)
Compass............................................... Compass Retail, Inc., a subsidiary of ERE (n/k/a ERE Yarmouth
Retail, Inc.) (Summary)
Davister.............................................. Davister Corp., a general partner in a partnership that owns
approximately 15.6% of ART's outstanding shares of Common
Stock (The Business of ART)
Declaration Amendment Proposal........................ Proposal to amend and restate the Declaration of Trust (Summary)
Dealer Manager........................................ Interfirst Capital Corporation, a California corporation and an
affiliate of ART and BCM (Summary)
Declaration of Trust.................................. EQK's Amended and Restated Declaration of Trust, dated
February 27, 1985, as amended on March 5, 1986 (Summary)
Effective Time........................................ The time at which the Merger is filed on a Certificate of Merger with
the Secretary of State of the Commonwealth of Massachusetts
(Summary)
EQK Annual Meeting.................................... Annual Meeting of the EQK Shareholders to be held on
__________ ___, 1998 (Prospectus Cover Pages)
EQK Board............................................. EQK's Board of Trustees (Prospectus Cover Page)
EQK Form 10-K......................................... EQK's Annual Report on Form 10-K for the year ended
December 31, 1997 (Summary)
EQK Merger Consideration.............................. Consideration for the Merger, payable to each EQK Shareholder
consisting of 0.0157 of an ART Preferred Share with a
Liquidation Value for such portion of a share of $0.157
(Prospectus Cover Pages)
EQK Record Date....................................... ____________, 1998 (Prospectus Cover Pages)
</TABLE>
-130-
<PAGE> 147
<TABLE>
<S> <C>
EQK Shareholders . . . . . . . . . . . . Holders of EQK Shares (Prospectus Cover Pages)
EQK Shares . . . . . . . . . . . . . . . Shares of beneficial interest of EQK, par value of $0.01 per
share (Prospectus Cover Pages)
EQK . . . . . . . . . . . . . . . . . . . EQK Realty Investors I, a Massachusetts business trust
(Prospectus Cover Pages)
Equitable . . . . . . . . . . . . . . . . The Equitable Life Assurance Society of the United States,
former owner of Compass and LLPM (Summary)
ERE . . . . . . . . . . . . . . . . . . . Equitable Real Estate Investment Management, Inc., current
owner of LLPM and Compass (Summary)
Exchange Act . . . . . . . . . . . . . . Securities Exchange Act of 1934, as amended (Available
Information)
Financial Advisor . . . . . . . . . . . . The independent financial advisor engaged by the EQK Board
(Background of the Merger)
GCLP . . . . . . . . . . . . . . . . . . Garden Capital, L.P., a Delaware limited partnership in which
NOLP owns a 99.3% limited partner interest (The Business of
ART)
Greenspring . . . . . . . . . . . . . . . Greenspring Fund, Incorporated (Summary)
Halperin . . . . . . . . . . . . . . . . Maurice A. Halperin (Prospectus Cover Pages)
Halperin Purchase . . . . . . . . . . . . Halperin's purchase of 854,200 EQK Shares during the period
from December 26, 1997 through January 20, 1998 (Summary)
Harrisburg M.S.A. . . . . . . . . . . . . Harrisburg Metropolitan Statistical Area (Description of the
Harrisburg East Mall)
IGI Properties . . . . . . . . . . . . . Twenty-nine apartment complexes in Florida and Georgia,
purchased by ART in April 1998 (The Business of ART)
IORI . . . . . . . . . . . . . . . . . . Income Opportunity Realty Investors, Inc., an affiliate of ART
(Incorporation of Certain Information by Reference)
Liquidation Value . . . . . . . . . . . . $10.00 per ART Preferred Share (Prospectus Cover Pages)
LLPM . . . . . . . . . . . . . . . . . . Lend Lease Portfolio Management, Inc., EQK's Advisor
(Prospectus Cover Pages)
Merger Agreement . . . . . . . . . . . . Amended and Restated Agreement and Plan of Merger, dated as of
August 25, 1998 among ART, ART Newco, BCM, EQK and LLPM
(Prospectus Cover Pages)
</TABLE>
-131-
<PAGE> 148
<TABLE>
<S> <C>
Merger Consideration.................................. The ART Merger Consideration and the EQK Merger Consideration
(Prospectus Cover Pages)
Merger Proposal....................................... Proposal for the Merger to be voted on at the EQK Annual Meeting,
requiring Requisite Shareholder Approval (Summary)
Merger-Related Proposals.............................. The Merger Proposal, the Declaration Amendment Proposal and the
New Advisory Agreement Proposal, all of which are subject to
Requisite Shareholder Approval (Summary)
Merger................................................ The merger of ART Newco with and into EQK, with EQK being the
surviving entity (Prospectus Cover Pages)
Moorman Settlement Agreement.......................... An agreement settling a class action lawsuit as to Gene Phillips,
William S. Friedman, SAMLP, NRLP and NOLP (The Business
of ART)
Mortgage Note......................................... EQK's mortgage note with Prudential (The Business of EQK)
Nanook Limited Partner................................ A limited partner in Nanook Partners, L.P., a limited partnership that
owns approximately 15.6% of the outstanding shares of ART's
Common Stock (The Business of ART).
New EQK Board......................................... The three member board of trustees of EQK consisting of the ART
Designated Trustees (The Board Election Proposal)
New Advisor........................................... BCM, under the New Advisory Agreement
(Summary)
New Advisory Agreement................................ Agreement which replaces the Advisory Agreement and makes BCM
EQK's New Advisor (Summary)
New Advisory Agreement Proposal....................... Proposal to terminate the Advisory Agreement and institute the New
Advisory Agreement with BCM as the New Advisor to EQK
(Summary)
NOLP.................................................. National Operating, L.P.
NOLs.................................................. Net operating losses (Summary)
NRLP Oversight Committee.............................. Oversight committee for NRLP created by the Moorman Settlement
Agreement (The Business of ART)
NRLP.................................................. National Realty, L.P., an affiliate of ART (Incorporation of Certain
Information by Reference)
NYSE Rules............................................ NYSE's published guidelines (Summary)
NYSE.................................................. New York Stock Exchange (Prospectus Cover Pages)
OTC Bulletin Board.................................... Over-the-Counter Bulletin Board (Summary)
Ownership Limit....................................... Specific provisions in the Declaration Amendment Proposal
restricting the ownership of more than 4.9% of the outstanding
EQK Shares by any single EQK Shareholder, other than ART
(Summary)
</TABLE>
-132-
<PAGE> 149
<TABLE>
<S> <C>
PNC . . . . . . . . . . . . . . . . . . . PNC Bank Corp., holder of the Term Loan (The Business of EQK)
Property Manager . . . . . . . . . . . . ERE Yarmouth Retail, Inc. (formerly Compass) (The Business of
EQK)
The Merger Proposal, the Declaration Amendment Proposal, the
New Advisory Agreement Proposal and the Board Election Proposal
Proposals . . . . . . . . . . . . . . . . (Summary)
Proxy Solicitor . . . . . . . . . . . . . Shareholders Communications Corporation (The EQK Annual
Meeting)
Prudential . . . . . . . . . . . . . . . Prudential Insurance Company of America (Summary)
Prudential Warrants . . . . . . . . . . . Prudential's warrants to purchase 367,868 EQK Shares (Summary)
PWSI . . . . . . . . . . . . . . . . . . Pizza World Supreme, Inc., a wholly-owned subsidiary of ART
(Summary)
Redeemable General Partner Interest . . . SAMLP's general partner interest in NOLP and NRLP (The Business
of ART)
Registration Statement . . . . . . . . . ART's Registration Statement on Form S-4, Registration
Statement No. 333-43777 (Prospectus Cover Pages)
REIT . . . . . . . . . . . . . . . . . . Real Estate Investment Trust (Summary)
Requisite Shareholder Approval . . . . . Affirmative vote of EQK Shareholders representing three-
quarters of the total votes authorized to be cast by EQK Shares
then outstanding (Summary)
Resolution Agreement . . . . . . . . . . December 15, 1997 Agreement for Establishment of a Class
Distribution of Fund and Election of Successor General Partner
between NRLP, SAMLP, the NRLP Oversight Committee, Joseph B.
Moorman and Invenex (The Business of ART)
Rights . . . . . . . . . . . . . . . . . A dividend of one Series A Preferred Stock share purchase right
on each outstanding ART Common Share (Description of the
Capital Stock of ART)
SAMI . . . . . . . . . . . . . . . . . . Syntek Asset Management, Inc. (The Board Election Proposal)
SAMLP . . . . . . . . . . . . . . . . . . Syntek Asset Management, L.P. (Description of ART)
Summit . . . . . . . . . . . . . . . . . Summitt Ventures, L.P. (Prospectus Cover)
Summit/Sutter Purchase . . . . . . . . . Summit and Sutter's purchase of an aggregate of 1,252,500 EQK
Shares (Summary)
Supervising Judge . . . . . . . . . . . . Judge appointed to supervise the class action settlement in the
Resolution Agreement (The Business of ART)
Sutter . . . . . . . . . . . . . . . . . Sutter Opportunity Fund, LLC (Prospectus Cover)
</TABLE>
-133-
<PAGE> 150
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
FINANCIAL STATEMENTS OF AMERICAN REALTY TRUST, INC.:
Report of Independent Certified Public Accountants ............................. F-3
Consolidated Balance Sheets -
December 31, 1997 and 1996 .................................................. F-4
Consolidated Statements of Operations -
Years Ended December 31, 1997, 1996 and 1995 ............................... F-5
Consolidated Statements of Stockholders' Equity -
Years Ended December 31, 1997, 1996 and 1995 ................................ F-6
Consolidated Statements of Cash Flows -
Years Ended December 31, 1997, 1996 and 1995 ................................ F-8
Notes to Consolidated Financial Statements ..................................... F-11
Interim Financial Statements (Unaudited):
Consolidated Balance Sheets -
June 30, 1998 and December 31, 1997 ......................................... F-34
Consolidated Statements of Operations Six Months Ended June 30, 1998 and 1997 .. F-36
Consolidated Statements of Stockholders' Equity -
Six Months Ended June 30, 1998 .............................................. F-37
Consolidated Statements of Cash Flows -
Six Months Ended June 30, 1998 and 1997 ..................................... F-38
Notes to Consolidated Interim Financial Statements ............................. F-41
FINANCIAL STATEMENTS OF EQK REALTY INVESTORS I:
Report of Independent Certified Public Accountants ............................. F-51
Balance Sheets at December 31, 1997 and 1996 ................................... F-52
Statements of Operations -
Years Ended December 31, 1997, 1996 and 1995 ................................ F-53
Statements of Shareholders' Equity -
Years Ended December 31, 1997 1996 and 1995 ................................. F-54
</TABLE>
F-1
<PAGE> 151
<TABLE>
<S> <C>
Statements of Cash Flows -
Years Ended December 31, 1997, 1996 and 1995 ............................. F-55
Notes to Financial Statements, including
Supplementary Data ....................................................... F-56
Financial Statement Schedule ................................................ F-63
Interim Financial Statements (Unaudited)
Balance Sheets at June 30, 1998 and
December 31, 1997 ........................................................ F-64
Statements of Operations -
for six months ended
June 30, 1998 and June 30, 1997 .......................................... F-65
Statements of Cash Flow-
for six months ended June 30, 1998
and June 30, 1997 ........................................................ F-66
Notes to Financial Statements ............................................... F-67
</TABLE>
All other schedules are omitted because they are not required, are not
applicable or the information required is included in the Financial Statements
or the notes thereto.
F-2
<PAGE> 152
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors of
American Realty Trust, Inc.
We have audited the accompanying consolidated balance sheets of American Realty
Trust, Inc. and Subsidiaries as of December 31, 1997 and 1996 and the related
consolidated statements of operations, stockholders' equity and cash flows for
each of the three years in the period ended December 31, 1997. These financial
statements and schedules are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall presentation of the financial
statements. We believe our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
American Realty Trust, Inc. and Subsidiaries as of December 31, 1997 and 1996,
and the consolidated results of their operations and their cash flows for each
of the three years in the period ended December 31, 1997, in conformity with
generally accepted accounting principles.
BDO Seidman, LLP
Dallas, Texas
March 25, 1998
F-3
<PAGE> 153
AMERICAN REALTY TRUST, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
------------------------------
1997 1996
------------ ------------
(dollars in thousands,
except per share)
<S> <C> <C>
Assets
Notes and interest receivable
Performing (including $1,307 in 1997 and $13,563 in 1996 from affiliate) ............ $ 9,300 $ 50,784
Nonperforming, nonaccruing .......................................................... 18,624 1,627
------------ ------------
27,924 52,411
Less - allowance for estimated losses ........................................................ (2,398) (3,926)
------------ ------------
25,526 48,485
Real estate held for sale, net of accumulated depreciation ($5,098 in 1996) .................. 178,938 77,688
Real estate held for investment net of accumulated depreciation ($5,380 in 1997
and $4,234 in 1996) ................................................................. 123,515 41,347
Pizza parlor equipment, net of accumulated depreciation ($905 in 1997) ....................... 6,693 --
Marketable equity securities, at market value ................................................ 6,205 2,186
Cash and cash equivalents .................................................................... 5,347 1,254
Investments in equity investees .............................................................. 45,851 55,880
Intangibles, net of accumulated amortization ($704 in 1997) .................................. 15,230 --
Other assets ................................................................................. 26,494 8,197
------------ ------------
$ 433,799 $ 235,037
============ ============
Liabilities and Stockholders' Equity
Liabilities
Notes and interest payable (including $11,400 in 1997 and $8,973 in 1996 to affiliates) ...... $ 261,986 $ 127,863
Margin borrowings ............................................................................ 53,376 40,044
Accounts payable and other liabilities (including $22 9 million in 1997 and $318,000
in 1996 to affiliate) ............................................................... 34,442 8,433
------------ ------------
349,804 176,340
Minority interest ............................................................................ 20,542 10,911
Commitments and contingencies
Stockholders' equity
Preferred Stock, $2 00 par value, authorized 20,000,000 shares, issued and outstanding
Series B, 4,000 shares in 1997 and 1996 (liquidation preference $400) ............... 8 8
Series C, 16,681 shares in 1997 and 15,877 shares in 1996 (liquidation preference
$ 1,668)x ........................................................................... 33 32
Series F, 2,000,000 shares in 1997 (liquidation preference $20,000) ................. 4,000
Common Stock, $ 01 par value, authorized 100,000,000 shares; issued 13,479,348
shares in 1997 and 1996 ............................................................. 135 135
Paid-in capital .............................................................................. 84,943 68,595
Accumulated (deficit) ........................................................................ (25,638) (20,978)
Treasury stock at cost, 2,767,427 shares in 1997 and 56,704 shares in 1996 ................... (28) (6)
------------ ------------
63,453 47,786
------------ ------------
$ 433,799 $ 235,037
============ ============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-4
<PAGE> 154
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Years Ended December 31,
--------------------------------------------
1997 1996 1995
------------ ------------ ------------
(dollars in thousands, except per share)
<S> <C> <C> <C>
Income
Sales ................................................................. $ 17,926 $ -- $ --
Rents ................................................................. 29,075 20,658 17,869
Interest (including $230 in 1997, $539 in 1996 and $506 in 1995 from
affiliates) .................................................. 2,835 4,724 4,929
Other ................................................................. 135 1,597 154
------------ ------------ ------------
49,971 26,979 22,952
Expenses
Cost of sales ......................................................... 14,492 -- --
Property operations (including $865 in 1997, $892 in 1996 and $1,200
in 1995 to affiliates) ....................................... 24,195 15,874 13,260
Interest (including $433 in 1997, $418 in 1996 and $437 in 1995 to
affiliates) .................................................. 30,231 16,450 8,941
Advisory and servicing fees to affiliate .............................. 2,657 1,539 1,195
General and administrative (including $1,809 in 1997, $691 in 1996
and $516 in 1995 to affiliate) ............................... 6,997 2,712 2,554
Depreciation and amortization ......................................... 3,338 2,002 1,691
Minority interest ..................................................... 1,445 -- 671
------------ ------------ ------------
83,355 38,577 28,312
------------ ------------ ------------
(Loss) from operations ......................................................... (33,384) (11,598) (5,360)
Equity in income (loss) of investees ........................................... 10,660 2,004 (851)
Gain on sale of real estate .................................................... 20,296 3,659 2,594
------------ ------------ ------------
(Loss) before income taxes ..................................................... (2,428) (5,935) (3,617)
Income tax expense ............................................................. -- -- 2
------------ ------------ ------------
(Loss) before extraordinary gain ............................................... (2,428) (5,935) (3,619)
Extraordinary gain ............................................................. -- 381 783
------------ ------------ ------------
Net (loss) ..................................................................... (2,428) (5,554) (2,836)
Preferred dividend requirement ................................................. (206) (113) --
Net (loss) applicable to Common shares ......................................... $ (2,634) $ (5,667) $ (2,836)
============ ============ ============
Earnings per share
(Loss) before extraordinary gain ............................................... $ (.22) $ (.46) $ (.31)
Extraordinary gain ............................................................. -- 03 07
------------ ------------ ------------
Net (loss) applicable to Common shares ......................................... $ (.22) $ (.43) $ (.24)
============ ============ ============
Weighted average Common shares used in computing earnings per share ............ 11,710,013 12,765,082 11,716,656
============ ============ ============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-5
<PAGE> 155
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Series B Series C
Preferred Stock Preferred Stock Common Stock Treasury Stock
--------------- --------------- --------------- ---------------
(dollars in thousands, except per share)
<S> <C> <C> <C> <C>
Balance, January 1, 1995 ...................... $ -- $ -- $ 117 $ --
Net (loss) .................................... -- -- -- --
--------------- --------------- --------------- ---------------
Balance, December 31, 1995 .................... -- -- 117 --
Common Stock issued ........................... -- -- 18 --
Series B Preferred Stock issued ............... 8 -- -- --
Series C Preferred Stock issued ............... -- 30 -- --
Common Stock cash dividend ($.15 per share) ... -- -- -- --
Redemption of share purchase rights ($.01
per right) ........................... -- -- -- --
Series B Preferred Stock cash dividend ($6.46
per share) ........................... -- -- -- --
Series C Preferred Stock dividend ($5.74
per share) ........................... -- 2 -- --
Treasury stock, at cost ....................... -- -- -- (6)
Net (loss) .................................... -- -- -- --
--------------- --------------- --------------- ---------------
Balance, December 31, 1996 .................... $ 8 $ 32 $ 135 $ (6)
<CAPTION>
Accumulated
Paid-in Capital (Deficit) Stockholders' Equity
--------------- --------------- --------------------
(dollars in thousands, except per share)
<S> <C> <C> <C>
Balance, January 1, 1995 ...................... $ 66,661 $ (10,884) $ 55,894
Net (loss) .................................... -- (2,836) (2,836)
--------------- --------------- ---------------
Balance, December 31, 1995 .................... 66,661 (13,720) 53,058
Common Stock issued ........................... (18) -- --
Series B Preferred Stock issued ............... 392 -- 400
Series C Preferred Stock issued ............... 1,469 -- 1,499
Common Stock cash dividend ($.15 per share) ... -- (1,491) (1,491)
Redemption of share purchase rights ($.01
per right) ........................... -- (101) (101)
Series B Preferred Stock cash dividend ($6.46
per share) ........................... -- (25) (25)
Series C Preferred Stock dividend ($5.74
per share) ........................... 85 (87) --
Treasury stock, at cost ....................... 6 -- --
Net (loss) .................................... -- (5,554) (5,554)
--------------- --------------- ---------------
Balance, December 31, 1996 .................... $ 68,595 $ (20,978) $ 47,786
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-6
<PAGE> 156
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY - CONTINUED
<TABLE>
<CAPTION>
Series B Series C Series F
Preferred Preferred Preferred Common Treasury Paid-in
Stock Stock Stock Stock Stock Capital
----------- ----------- ----------- ----------- ----------- -----------
(dollars in thousands, except per share)
<S> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1997 ................. $ 8 $ 32 $ -- $ 135 $ (6) $ 68,595
Series F Preferred Stock issued .......... -- -- 4,000 -- -- 16,000
Common Stock cash dividend ($.20
per share) ........................... -- -- -- -- -- --
Series B Preferred Stock cash
dividend ($10.00 per share) .......... -- -- -- -- -- --
Series C Preferred Stock, stock and
cash dividend ($10.00 per share) ..... -- 1 -- -- -- 81
Sale of Common Stock ..................... -- -- -- -- -- 245
Treasury stock, at cost .................. -- -- -- -- (22) 22
Net (loss) ............................... -- -- -- -- -- --
----------- ----------- ----------- ----------- ----------- -----------
Balance, December 31, 1997 ............... $ 8 $ 33 $ 4,000 $ 135 $ (28) $ 84,943
=========== =========== =========== =========== =========== ===========
<CAPTION>
Accumulated Stockholders'
(Deficit) Equity
----------- -----------
(dollars in thousands, except per share)
<S> <C> <C>
Balance, January 1, 1997 ................. $ (20,978) $ 47,786
Series F Preferred Stock issued .......... -- 20,000
Common Stock cash dividend ($.20
per share) ........................... (2,026) (2,026)
Series B Preferred Stock cash
dividend ($10.00 per share) .......... (40) (40)
Series C Preferred Stock, stock and
cash dividend ($10.00 per share) ..... (166) (84)
Sale of Common Stock ..................... -- 245
Treasury stock, at cost .................. -- --
Net (loss) ............................... (2,428) (2,428)
----------- -----------
Balance, December 31, 1997 ............... $ (25,638) $ 63,453
=========== ===========
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-7
<PAGE> 157
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For The Years Ended December 31,
-----------------------------------
1997 1996 1995
--------- --------- ---------
(dollars in thousands)
<S> <C> <C> <C>
Cash Flows From Operating Activities
Pizza parlor sales collected ....................................... $ 17,790 $ -- $ --
Rents collected .................................................... 28,199 19,013 18,473
Interest collected ($262 in 1997, $385 in 1996 and $399 in 1995
from affiliates) .......................................... 2,592 4,304 4,845
Distributions from equity investees' operating activities .......... 5,689 9,054 1,464
Interest paid ($19 in 1995 to affiliate) ........................... (19,092) (9,601) (8,296)
Payments for property operations (including $865 in 1997, $892
in 1996 and $1,200 in 1995 to affiliate) .................. (22,821) (15,034) (13,442)
Payments for pizza parlor operations ............................... (12,580) -- --
Advisory fee paid to affiliate ..................................... (2,657) (1,539) (1,195)
Distributions to minority interest holders ......................... (1,445) -- --
Purchase of marketable equity securities ........................... (15,147) (22,613) (19,394)
Proceeds from sale of marketable equity securities ................. 10,588 23,557 18,374
General and administrative expenses paid (including $1,809 in
1997, $691 in 1996 and $516 in 1995 to affiliate) ......... (6,982) (3,095) (2,448)
Litigation settlement .............................................. -- -- (100)
Other .............................................................. (781) (1,661) 1,016
--------- --------- ---------
Net cash provided by (used in) operating activities ...... (16,647) 2,385 (703)
Cash Flows From Investing Activities
Collections on notes receivable (including $3,503 in 1997, $1,166
in 1996 and $394 in 1995 from affiliates) ................. 4,489 1,495 1,604
Proceeds from sale of notes receivable ............................. 16,985 -- --
Notes receivable funded ............................................ (8,716) (250) (3,295)
Proceeds from sale of real estate .................................. 38,169 7,718 11,992
Contributions from minority interest holders ....................... 9,799 -- --
Acquisitions of real estate ........................................ (123,074) (41,636) (21,394)
Real estate improvements ........................................... (10,993) (2,862) (1,802)
Pizza parlor equipment purchased ................................... (2,695) -- --
Deposits ........................................................... (6,221) 577 (516)
Investment in equity investees ..................................... (1,331) (15,471) (7,169)
--------- --------- ---------
Net cash (used in) investing activities ................... (83,588) (50,429) (20,580)
Cash Flows From Financing Activities
Proceeds from notes payable ........................................ 161,103 86,490 36,211
Margin borrowings, net ............................................. 8,914 2,981 7,626
Proceeds from issuance of Preferred Stock .......................... -- 400 --
Payments on notes payable (including $990 in 1995 to affiliate) .... (81,639) (30,003) (22,268)
Deferred borrowing costs ........................................... (5,174) (5,028) (2,475)
Net advances (payments) to/from affiliates ......................... 23,274 (4,979) 3,050
Dividends .......................................................... (2,150) (1,617) --
--------- --------- ---------
Net cash provided by financing activities ................. 104,328 48,244 22,144
--------- --------- ---------
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-8
<PAGE> 158
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION>
For The Years Ended December 31,
-----------------------------------
1997 1996 1995
--------- --------- ---------
(dollars in thousands)
<S> <C> <C> <C>
Net increase in cash and cash equivalents ............................... $ 4,093 $ 200 $ 861
Cash and cash equivalents, beginning of year ............................ 1,254 1,054 193
--------- --------- ---------
Cash and cash equivalents, end of year .................................. $ 5,347 $ 1,254 $ 1,054
========= ========= =========
Reconciliation of net (loss) to net cash provided by (used in)
operating activities
Net (loss) .............................................................. $ (2,428) $ (5,554) $ (2,836)
Adjustments to reconcile net (loss) to net cash provided by (used in)
operating activities
Extraordinary gain ................................................ -- (381) (783)
Gain on sale of real estate ....................................... (20,296) (3,659) (2,594)
Depreciation and amortization ..................................... 3,338 2,002 1,691
Amortization of deferred borrowing costs .......................... 4,042 2,692 326
Equity in (income) losses of investees ............................ (10,660) (2,004) 851
Distributions from equity investees' operating activities ......... 5,689 9,054 1,464
(Increase) decrease in marketable equity securities ............... (4,559) 944 (1,020)
(Increase) decrease in accrued interest receivable ................ 66 (117) 79
(Increase) decrease in other assets ............................... 2,403 (2,817) 1,629
Increase (decrease) in accrued interest payable ................... 1,019 1,417 (5)
Increase in accounts payable and other liabilities ................ 4,978 733 495
Other ............................................................. (239) 75 --
--------- --------- ---------
Net cash provided by (used in) operating activities ............. $ (16,647) $ 2,385 $ (703)
========= ========= =========
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-9
<PAGE> 159
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION>
For The Years Ended December 31,
------------------------------------
1997 1996 1995
---------- ---------- ----------
(dollars in thousands)
<S> <C> <C> <C>
Schedule of noncash investing and financing activities
Notes payable from acquisition of real estate ..................... $ 44,151 $ 9,099 $ 21,394
Stock dividends on Series C Preferred Stock ........................ 82 31 --
Series F Preferred Stock issued for real estate .................... 20,000 -- --
Current value of property obtained through foreclosure of note
receivable ................................................ 20,226 -- --
Note receivable put to basis ....................................... 2,737 -- --
Note payable assumed on property obtained through foreclosure ...... 11,867 -- --
Carrying value of real estate exchanged ............................ 7,882 -- --
Notes payable from acquisition of minority interest in subsidiary .. 5,000 -- --
Acquisition of Pizza World Supreme, Inc.
Carrying value of intangible .............................. 15,641 -- --
Carrying value of pizza parlor equipment .................. 3,998 -- --
Carrying value of note receivable retired ................. 13,387 -- --
Carrying value of accounts payable and other liabilities .. 1,314 -- --
Sale of real estate subject to debt ................................ -- -- (5,878)
Settlement with insurance company
Carrying value of real estate received .................... -- -- 1,619
Carrying value of note receivable
participation received ........................... -- -- 1,500
Carrying value of notes receivable returned ............... -- -- (32)
Carrying value of real estate returned .................... -- -- (2,183)
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-10
<PAGE> 160
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The accompanying Consolidated Financial Statements of American Realty Trust,
Inc. and consolidated entities (the "Company") have been prepared in conformity
with generally accepted accounting principles, the most significant of which are
described in NOTE 1. "SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES." These, along
with the remainder of the Notes to Consolidated Financial Statements, are an
integral part of the Consolidated Financial Statements. The data presented in
the Notes to Consolidated Financial Statements are as of December 31 of each
year and for the year then ended, unless otherwise indicated. Dollar amounts in
tables are in thousands, except per share amounts.
Certain balances for 1995 and 1996 have been reclassified to conform to the 1997
presentation. Shares and per share data have been restated for the 2 for 1
forward Common Stock splits effected February 17, 1997 and January 2, 1996.
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and company business. American Realty Trust, Inc. ("ART"), a
Georgia corporation, is successor to a District of Columbia business trust, that
primarily invests in real estate and real estate-related entities and purchases
and originates mortgage loans.
Basis of consolidation. The Consolidated Financial Statements include the
accounts of ART, and all majority-owned subsidiaries and partnerships other than
National Realty, L.P. ("NRLP") and during the period April 1996 to April 1997
for Pizza World Supreme, Inc. ( PWSI"). The Company uses the equity method to
account for its investment in NRLP as control is considered to be temporary. The
Company used the equity method to account for its investment in PWSI from April
1996 to April 1997 as control was considered to be temporary. See NOTE 2.
"SYNTEK ASSET MANAGEMENT, L.P." and NOTE 7. "ACQUISITION OF PIZZA WORLD SUPREME,
INC." All significant intercompany transactions and balances have been
eliminated.
Accounting estimates. In the preparation of the Company's Consolidated Financial
Statements in conformity with generally accepted accounting principles it was
necessary for the Company's management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the Consolidated Financial
Statements and the reported amounts of revenues and expense for the year then
ended. Actual results could differ from these estimates.
Interest recognition on notes receivable. It is the Company's policy to cease
recognizing interest income on notes receivable that have been delinquent for 60
days or more. In addition, accrued but unpaid interest income is only recognized
to the extent that the net realizable value of the underlying collateral exceeds
the carrying value of the receivable.
Allowance for estimated losses. Valuation allowances are provided for estimated
losses on notes receivable considered to be impaired. Impairment is considered
to exist when it is probable that all amounts due under the terms of the note
will not be collected. Valuation allowances are provided for estimated losses on
notes receivable to the extent that the Company's investment in the note exceeds
the Company's estimate of fair value of the collateral securing such note.
Real Estate Held for Investment and Depreciation. Real estate held for
investment is carried at cost. Statement of Financial Accounting Standards No.
121 ( SFAS No. 121") requires that a property be considered impaired, if the sum
of the expected future cash flows (undiscounted and without interest charges) is
less than the carrying amount of the property. If impairment exists, an
impairment loss is recognized by a charge against earnings, equal to the amount
by which the carrying amount of the property exceeds the fair value of the
property. If impairment of a property is recognized, the carrying amount of the
property is reduced by the amount of the impairment, and a new cost for the
property is established. Such new cost is depreciated over the property's
remaining useful life. Depreciation is provided by the straight-line method over
estimated useful lives, which range from 10 to 40 years.
Real Estate Held for Sale. Foreclosed real estate is initially recorded at new
cost, defined as the lower of original cost or fair value minus estimated costs
of sale. SFAS No. 121 also requires that properties held for sale be reported at
the lower of carrying amount or fair value less costs of sale. If a reduction in
a held for sale property's carrying amount to fair value less costs of sale is
required, a provision for loss shall be recognized by a charge against earnings.
Subsequent revisions, either upward or downward, to a held for sale property's
estimated fair value less costs of sale is recorded as an adjustment to the
property's
F-11
<PAGE> 161
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
carrying amount, but not in excess of the property's carrying amount when
originally classified as held for sale. A corresponding charge against or credit
to earnings is recognized. Properties held for sale are not to be depreciated.
Investments in equity investees. Because the Company may be considered to have
the ability to exercise significant influence over the operating and investment
policies of certain of its investees, the Company accounts for such investments
by the equity method. Under the equity method, the Company's initial investment,
recorded at cost, is increased by the Company's proportionate share of the
investee's operating income and any additional investment and decreased by the
Company's proportionate share of the investee's operating losses and
distributions received.
Present value premiums/discounts. The Company provides for present value
premiums and discounts on notes receivable or payable that have interest rates
that differ substantially from prevailing market rates and amortizes such
premiums and discounts by the interest method over the lives of the related
notes. The factors considered in determining a market rate for notes receivable
include the borrower's credit standing, nature of the collateral and payment
terms of the note.
Revenue recognition on the sale of real estate. Sales of real estate are
recognized when and to the extent permitted by Statement of Financial Accounting
Standards No. 66, "Accounting for Sales of Real Estate" ("SFAS No. 66"). Until
the requirements of SFAS No. 66 for full profit recognition have been met,
transactions are accounted for using either the deposit, the installment, the
cost recovery, the financing or other method, whichever is appropriate.
Fair value of financial instruments. The Company used the following assumptions
in estimating the fair value of its notes receivable, marketable equity
securities and notes payable. For performing notes receivable, the fair value
was estimated by discounting future cash flows using current interest rates for
similar loans. For nonperforming notes receivable the estimated fair value of
the Company's interest in the collateral property was used. For marketable
equity securities fair value was based on the year end closing market price of
each security. For notes payable the fair value was estimated using current
rates for mortgages with similar terms and maturities.
Cash equivalents. For purposes of the Consolidated Statements of Cash Flows, the
Company considers all highly liquid debt instruments purchased with an original
maturity of three months or less to be cash equivalents.
Earnings per share. Loss per share is presented in accordance with the provision
of the Statement of Financial Accounting Standards No. 128, "Earnings Per
Share". Loss per share is computed based upon the weighted average number of
shares of Common Stock outstanding during each year, adjusted for the two for
one forward Common Stock splits effected February 17, 1997 and January 2, 1996.
NOTE 2. SYNTEK ASSET MANAGEMENT, L.P.
The Company owns a 96% limited partner interest in Syntek Asset Management, L.P.
("SAMLP"). SAMLP is the general partner of National Realty, L.P. ("NRLP") and
National Operating, L.P. ("NOLP"), the operating partnership of NRLP. Gene E.
Phillips, a Director and Chairman of the Board of the Company until November 16,
1992, is also a general partner of SAMLP. As of September 30, 1997, the Company
owned approximately 54% of the outstanding limited partner units of NRLP.
NRLP, SAMLP and Mr. Phillips were among the defendants in a class action lawsuit
arising from the formation of NRLP. An agreement settling such lawsuit (the
"Settlement Agreement") for the above mentioned defendants became effective on
July 5, 1990. The Settlement Agreement provided for, among other things, the
appointment of an NRLP oversight committee and the establishment of specified
annually increasing targets for five years relating to the price of NRLP's units
of limited partner interest.
The Settlement Agreement provides for the resignation and replacement of SAMLP
as general partner if the unit price targets are not met for two consecutive
anniversary dates. NRLP did not meet the unit price targets for the first and
second anniversary dates. On July 8, 1992, SAMLP notified the NRLP oversight
committee of the failure of NRLP to meet the unit price targets for two
successive years and that it expects to resign as general partner of NRLP and
NOLP.
F-12
<PAGE> 162
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
The withdrawal of SAMLP as general partner would require NRLP to purchase
SAMLP's general partner interest (the "Redeemable General Partner Interest") at
its then fair value, and to pay certain fees and other compensation as provided
in the partnership agreement. Syntek Asset Management, Inc. ("SAMI"), the
managing general partner of SAMLP, has calculated the fair value of such
Redeemable General Partner Interest to be $49.6 million at December 31, 1997,
before reduction for the principal balance ($4.2 million at December 31, 1997)
and accrued interest ($7.2 million at December 31, 1997) on the note receivable
from SAMLP for its original capital contribution to the partnership.
On December 15, 1997, NRLP, SAMLP, the NRLP oversight committee, Joseph B.
Moorman, Invenex and the Counsel for the plaintiff class members executed an
Agreement for Establishment of a Class Distribution Fund and Election of
Successor General Partner (the "Resolution Agreement") which provides for the
nomination of an entity affiliated with SAMLP to be the successor general
partner of NRLP and NOLP, for the establishment of a fund for the benefit of the
plaintiff class members consisting of cash and properties owned by NOLP and for
the resolution of all related matters under the Settlement Agreement.
The Resolution Agreement was submitted to the Judge appointed to supervise the
class action settlement (the "Supervising Judge") and on February 11, 1998, the
Supervising Judge entered an order granting preliminary approval of the
Resolution Agreement and scheduled a hearing to be held on April 24, 1998, for
consideration of preliminary approval of a business plan for the operation of
the entity which will receive the cash and properties and to consider a form of
notice to be distributed to the plaintiff class members describing the
Resolution Agreement and the business plan.
Upon the election and taking office of the successor general partner and the
transfer of the cash and properties to the fund established for the benefit of
the plaintiff class members, the Settlement Agreement and the NRLP oversight
committee shall be terminated.
<TABLE>
<CAPTION>
1997 1996
------------------------ -----------------------
Estimated Estimated
Fair Book Fair Book
Value Value Value Value
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Notes Receivable
Performing (including $1,307 in 1997 and $13,563 in 1996
from affiliates) ........................................ $ 9,217 $ 9,340 $ 52,939 $ 55,161
Nonperforming, nonaccruing ................................ 26,344 23,212 1,884 1,584
---------- ---------- ---------- ----------
$ 35,561 32,552 $ 54,823 56,745
========== ==========
Interest receivable ....................................... 380 445
Unamortized premiums/(discounts) .......................... (124) (162)
Deferred gains ......................................... (4,884) (4,617)
---------- ----------
$ 27,924 $ 52,411
========== ==========
</TABLE>
The Company recognizes interest income on nonperforming notes receivable on a
cash basis. For the years 1997, 1996 and 1995 unrecognized interest income on
such nonperforming notes receivable totaled $2.2 million, $1.6 million and $1.2
million, respectively.
Notes receivable at December 31, 1997, mature from 1998 to 2014 with interest
rates ranging from 6.0% to 12.9% and a weighted average rate of 12.78%. A small
percentage of these notes receivable carry a variable interest rate. Notes
receivable include notes generated from property sales which have interest rates
adjusted at the time of sale to yield rates ranging from 6% to 14%. Notes
receivable are generally nonrecourse and are generally collateralized by real
estate. Scheduled principal maturities of $31.2 million are due in 1998 of which
$23.2 million is due on nonperforming notes receivable.
Nonrecourse participations totaling $2.2 million and $1.6 million at December
31, 1997 and 1996, respectively, have been deducted from notes receivable.
In August 1990, the Company obtained the Continental Hotel and Casino in Las
Vegas, Nevada, through foreclosure subject to first and second lien mortgages
totaling $10.0 million. In June 1992, the Company sold the hotel and casino
accepting, among other consideration, a $22.0 million wraparound mortgage note
receivable. The Company recorded a deferred gain of $4.6
F-13
<PAGE> 163
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
million in connection with the sale of the hotel and casino resulting from a
disputed third lien mortgage being subordinated to the Company's wraparound
mortgage note receivable. In March 1997, the wraparound note was modified and
extended. In exchange for the extension, the borrower was required to invest
$2.0 million in improvements to the hotel and casino within four months of the
March 1997 modification and an additional $2.0 million prior to December 1997.
The borrower also pledged 1,500,000 shares of common stock in Crowne Ventures,
Inc., as additional collateral. The Company's wraparound mortgage note
receivable had a principal balance of $13.3 million at December 31, 1997. The
Company recognizes interest income on this wraparound mortgage note only to the
extent interest is collected. The borrower has not made the required note
payments since April 1997, nor the required improvements. In December 1997, the
borrower filed for bankruptcy protection. In February 1998, a hearing was held
to allow the Company to foreclose on the hotel and casino. At the hearing, the
court allowed the borrower 90 days to submit a reorganization plan and beginning
March 2, 1998, required the borrower to make monthly payments of $175,000 to the
Company. The Company received the first such payment on March 2, 1998. If the
Company is allowed to foreclose on the property it does not expect to incur a
loss as the fair value of the property exceeds the carrying value of the
Company's note receivable.
The borrower on a $1.7 million mortgage note receivable secured by land in
Osceola, Florida failed to pay the note on its November 1, 1993 maturity. The
Company instituted foreclosure proceedings and was awarded summary judgment in
January 1994. During 1994 and 1995, the borrower paid the Company a total of
$270,000 in nonrefundable fees to delay foreclosure of the property until April
24, 1995. On April 21, 1995, the borrower filed for bankruptcy protection. On
August 24, 1996, the bankruptcy court's stay was lifted allowing the Company to
proceed with foreclosure. In February 1997, the Company sold its mortgage note
receivable for $1.8 million in cash. The Company recognized a gain of $171,000
on the sale.
In September 1997, the Company sold its $16.3 million wraparound mortgage note
receivable secured by the Las Vegas Plaza Shopping Center in Las Vegas, Nevada,
for $15.0 million. The Company received net cash of $5.5 million after the
payoff of $9.2 million in underlying debt. The Company incurred no loss on the
sale in excess of the reserve previously established.
Related Party. In September 1997, the Company foreclosed on its $8.9 million
junior mortgage note receivable secured by the Williamsburg Hospitality House in
Williamsburg, Virginia. The Company obtained the property through foreclosure
subject to the first mortgage of $12.0 million. The Company incurred no loss on
foreclosure as the fair value of the property exceeded the carrying value of the
Company's mortgage note receivable and assumed mortgage debt. The property is
included in real estate held for investment in the accompanying Consolidated
Balance Sheet.
At December 31, 1996, the Company held a mortgage note receivable secured by an
apartment complex in Merrillville, Indiana, with a principal balance of $3.7
million. The property is owned by a subsidiary of Davister Corp. ( Davister"), a
general partner in a partnership that owns approximately 15.6% of the Company's
outstanding shares of Common Stock. In May 1997, the note plus accrued but
unpaid interest was paid in full.
NOTE 4. REAL ESTATE
In January 1997, the Company sold a 3.0 acre tract of Las Colinas I land in Las
Colinas, Texas, for $1.2 million in cash. The Company recognized a gain of
$676,000 on the sale.
Also in January 1997, the Company purchased Scout land, a 546 acre parcel of
undeveloped land in Tarrant County, Texas, for $2.2 million. The Company paid
$725,000 in cash and obtained new mortgage financing of $1.5 million. The
mortgage bears interest at 16% per annum, requires quarterly payments of
interest only and matures in January 2000.
In February 1996, the Company entered into a contract to sell a 72.5 acre tract
of the 92.6 acre parcel of BP Las Colinas land in Las Colinas, Texas, for $12.9
million. The contract called for the sale to close in two phases. In July 1996,
the Company completed the first sale. In February 1997, the Company completed
the second sale of 40.2 acres for $8.0 million, of which $7.2 million was paid
in cash. Of the net cash proceeds of $6.9 million, $1.5 million was used to
payoff the debt secured by the BP Las Colinas land parcel, pay a $500,000
maturity fee to the lender, make a $1.5 million principal paydown on the loan
with the same lender, secured by the Parkfield land in Denver, Colorado and $1.0
million was applied as a principal paydown on the term loan secured by the Las
Colinas I land. In conjunction with the sale the Company provided $800,000 in
purchase money financing in the form of a six month unsecured loan. The loan
bore interest at 12% per annum, with all accrued but unpaid
F-14
<PAGE> 164
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
interest and principal due at maturity in August 1997. The Company recognized a
gain of $3.4 million on such sale, deferring an additional $800,000 of gain
until the unsecured loan was paid in full. The loan was collected in full in
August 1997 and the additional $800,000 gain was recognized.
In March 1997, the Company purchased Katy Road land, a 130.6 acre parcel of
undeveloped land in Harris County, Texas, for $5.6 million. The Company paid
$1.6 million in cash with the seller providing purchase money financing for the
remaining $4.0 million of the purchase price. The financing bears interest at 9%
per annum, requires quarterly payments of interest only and matures in March
2000.
In April 1997, the Company purchased McKinney Corners I land, a 30.4 acre parcel
of undeveloped land in Collin County, Texas, for $3.5 million. The Company paid
$1.0 million in cash and obtained new mortgage financing of $2.5 million. The
mortgage bears interest at 14% per annum, requires monthly payments of interest
only and matures in April 1998.
Also in April 1997, the Company purchased McKinney Corners II land, a 173.9 acre
parcel of undeveloped land in Collin County, Texas, for $5.9 million. The
Company paid $900,000 in cash and obtained new mortgage financing of $5.0
million as an advance under the term loan from the Las Colinas I lender. The
McKinney Corners II land was added as additional collateral on the term loan.
Further in April 1997, the Company sold a 3.1 acre tract of Las Colinas I land
for $1.3 million in cash. The Company used $1.0 million of the net cash proceeds
to make a collateral escrow deposit in accordance with the provisions of the
Valley Ranch land term loan. The Company recognized a gain of $668,000 on the
sale.
In May 1997, the Company purchased McKinney Corners III land, a 15.5 acre parcel
of undeveloped land in Collin County, Texas, for $896,000 in cash.
Also in May 1997, the Company purchased Lacy Longhorn land, a 17.1 acre parcel
of undeveloped land in Farmers Branch, Texas, for $1.8 million. The Company paid
$200,000 in cash with the seller providing purchase money financing of the
remaining $1.6 million of the purchase price. The financing bore interest at 10%
per annum, required monthly principal and interest payments of $400,000 and
matured in October 1997. The loan was paid off at maturity.
Further in May 1997, the Company purchased Chase Oaks land, a 60.5 acre parcel
of undeveloped land in Plano, Texas, for $4.2 million. The Company paid $200,000
in cash with the seller providing purchase money financing of the remaining $4.0
million of the purchase price. The financing bears interest at 18% per annum,
requires monthly payments of interest only and matures in May 2000.
In May 1997, the Company purchased Pioneer Crossing land, a 1,448 acre parcel of
undeveloped land in Austin, Texas, for $21.5 million. The Company paid $5.4
million in cash with the seller providing purchase money financing of the
remaining $16.1 million of the purchase price. The financing bears interest at
9.5% per annum, requires monthly payments of interest only and matures in May
2001.
In June 1997, the Company purchased Kamperman land, a 129.6 acre parcel of
undeveloped land in Collin County, Texas, for $5.0 million in cash. The Company
simultaneously sold a 99.7 acre tract for $4.5 million in cash. The Company
recognized a gain of $215,000 on the sale.
Also in June 1997, the Company purchased Keller land, a 811.8 acre parcel of
undeveloped land in Tarrant County, Texas, for $6.3 million. The Company paid
$2.3 million in cash and obtained new mortgage financing of $4.0 million. The
mortgage bears interest at 12.95% per annum, requires monthly payments of
interest only and matures in June 1998.
Further in June 1997, the Company purchased McKinney Corners IV land, a 31.3
acre parcel of undeveloped land in Collin County, Texas, for $2.4 million. The
Company paid $400,000 in cash and obtained new mortgage financing of $2.0
million, as an advance under the term loan from the Las Colinas I lender. The
McKinney Corners IV land was added as additional collateral on the term loan.
F-15
<PAGE> 165
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
In June 1997, the Company purchased Pantex land, a 182.5 acre parcel of
undeveloped land in Collin County, Texas, for $5.4 million. The Company paid
$900,000 in cash with the seller providing purchase money financing of the
remaining $4.5 million of the purchase price. The financing bears interest at
10.5% per annum, requires semiannual payments of interest only and matures in
December 2000.
In July 1997, the Company sold a 3.9 acre tract of Las Colinas I land in Las
Colinas, Texas, for $1.6 million in cash. In accordance with the provisions of
the term loan secured by such parcel, the Company applied the net cash proceeds
of $1.4 million to paydown the term loan in exchange for the lender's release of
its collateral interest in such land. The Company recognized a gain of $771,000
on such sale.
Also in July 1997, the Company purchased Dowdy and McKinney Corners V land, a
total of 174.7 acres of undeveloped land in Collin County, Texas, for $2.9
million. The Company obtained new mortgage financing of $3.3 million as an
advance under the term loan from the Las Colinas I lender. The Dowdy, McKinney
Corners V and McKinney Corners III land were added as additional collateral on
the term loan.
Further in July 1997, the Company purchased Perkins land, a 645.4 acre parcel of
undeveloped land in Collin County, Texas, for $5.8 million. The Company paid
$3.3 million in cash and assumed the existing mortgage of $2.5 million. The
mortgage bears interest at 8.5% per annum, requires quarterly payments of
interest only and matures in March 2002.
In July 1997, the Company purchased LBJ land, a 10.4 acre parcel of undeveloped
land in Dallas County, Texas, for $2.3 million. The Company paid $300,000 in
cash and with the seller providing purchase money financing of the remaining
$2.0 million of the purchase price. The financing bears interest at 18% per
annum, requires quarterly payments of interest only and matures in March 1998.
In September 1997, the Company sold the Mopac Building, a 400,000 square foot
office building, in St. Louis, Missouri, for $1.0 million in cash. The Company
received net cash of $1.0 million after the payment of various closing costs
associated with the sale. In accordance with the provisions of the Las Colinas I
term loan, the Company applied $350,000 of the net cash received to paydown the
term loan in exchange for the lender's release of its collateral interest in the
property. The Company recognized a gain of $481,000 on the sale.
Also in September 1997, the Company sold a 2.6 acre tract of Las Colinas I land
in Las Colinas, Texas, for $1.2 million in cash. In accordance with the
provisions of the term loan secured by such parcel, the Company applied the net
cash proceeds of $1.0 million to paydown the term loan in exchange for the
lender's release of its collateral interest in such land. The Company recognized
a gain of $578,000 on the sale.
Further in September 1997, the Company sold three tracts of Valley Ranch land
totaling 24.0 acres, for $1.6 million in cash. The net cash proceeds of $1.2
million were deposited into a certificate of deposit for the benefit of the
lender, in accordance with the term loan secured by such land. The certificate
of deposit was released to the lender in December 1997, in conjunction with the
payoff of the loan. The Company recognized a gain of $567,000 on the sale.
In September 1997, the Company purchased the Collection, a 267,812 square foot
retail and commercial center in Denver, Colorado, for $19.5 million. The Company
paid $791,000 in cash and assumed existing mortgages totaling $14.7 million, and
issued 400,000 shares of the Company's Series F Cumulative Convertible Preferred
Stock. See NOTE 13. PREFERRED STOCK." A first mortgage in the amount of $14.2
million bears interest at 8.64% per annum, requires monthly principal and
interest payments of $116,000 and matures in May 2017. A second lien mortgage in
the amount of $580,000 bears interest at 7% per annum until April 2001, 7.5% per
annum from May 2001 to April 2006, and 8% per annum from May 2006 to May 2010,
requires monthly principal and interest payments of $3,000 and matures in May
2010.
In October 1997, the Company contributed its Pioneer Crossing land in Austin,
Texas to a limited partnership in exchange for $3.4 million in cash, a 1%
managing general partner interest in the partnership, all of the Class B limited
partner units in the partnership and the partnership's assumption of the $16.1
million mortgage debt secured by such property. The existing general and limited
partners converted their general and limited partner interests into Class A
limited partner units in the partnership. The Class A limited partner units have
an agreed value of $1.00 per unit and are entitled to a fixed preferred return
of 10% per
F-16
<PAGE> 166
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
annum, paid quarterly. The Class A units may be converted into a total of
360,000 shares of the Company's Series F Cumulative Convertible Preferred Stock
at any time after the first but no later than the sixth anniversary of the
closing, on the basis of one share of Series F Preferred Stock for each ten
Class A units. See NOTE 13. "PREFERRED STOCK."
Also in October 1997, the Company contributed the Denver Merchandise Mart in
Denver, Colorado, to a limited partnership in exchange for $6.0 million in cash,
a 1% managing general partner interest in the partnership, all of the Class B
limited partner units in the partnership and the partnership's assumption of the
$23.0 million in mortgage debt secured by such property. The existing general
and limited partners converted their general and limited partner interests into
Class A limited partner units in the partnership. The Class A units have an
agreed value of $1.00 per unit and are entitled to a fixed preferred return of
10% per annum, paid quarterly. The Class A units may be converted into a total
of 529,000 shares of the Company's Series F Cumulative Convertible Preferred
Stock at any time after the first but not later than the sixth anniversary of
the closing, on the basis of one share of Series F Preferred Stock for each ten
Class A units. See NOTE 13."PREFERRED STOCK."
Further in October 1997, the Company purchased Palm Desert land, a 315.2 acre
parcel of undeveloped land in Palm Desert, California, for $11.2 million. The
Company paid $3.8 million in cash and assumed the existing mortgage of $7.4
million. The mortgage bears interest at 9% per annum, requires monthly principal
and interest payments of $76,000 and matures in February 2002.
In October 1997, the Company purchased Thompson land, a 4.0 acre parcel of
undeveloped land in Dallas County, Texas, for $869,000 in cash.
Also in October 1997, the Company purchased Santa Clarita land, a 20.6 acre
parcel of undeveloped land, in Santa Clarita, California, for $1.3 million. The
Company obtained new mortgage financing of $1.3 million as an advance under the
term loan from the Las Colinas I lender. The Santa Clarita land was added as
additional collateral for the term loan.
Further in October 1997, the Company purchased Tomlin land, a 9.2 acre parcel of
undeveloped land in Dallas County, Texas, for $1.7 million in cash.
In October 1997, the Company purchased Rasor land, a 378.2 acre parcel of
undeveloped land in Plano, Texas, for $14.4 million. The Company paid $5.1
million in cash, obtained new mortgage financing of $3.5 million as an advance
under the term loan from the Las Colinas I lender and exchanged the Perkins
land, a 645.4 acre parcel of undeveloped land in Collin County, Texas, for the
remainder of the purchase price. The Company simultaneously sold an 86.5 acre
tract of the Rasor land for $3.8 million in cash, the Company receiving net cash
proceeds of $3.5 million after the payment of various closing costs associated
with the sale. The Company recognized a gain of $217,000 on the sale of the 86.5
acre tract. The Rasor land was added as additional collateral for the term loan.
Also in October 1997, the Company purchased the Piccadilly Inns, four hotels in
Fresno, California, with a total of 697 rooms, for $33.0 million. The Company
issued 1.6 million shares of its Series F Cumulative Convertible Preferred Stock
for $16.0 million of the purchase price and obtained new mortgage financing of
$19.8 million. See NOTE 13. PREFERRED STOCK." The Company received net financing
proceeds of $2.2 million after the payment of various closing costs associated
with the financing. The mortgage bears interest at 8.40% per annum, requires
monthly principal and interest payments of $158,000 and matures in November
2012.
Further in October 1997, a newly formed partnership, of which the Company is the
general partner and Class B limited partner, purchased the Vineyards land, a
15.8 acre parcel of undeveloped land in Tarrant County, Texas, for $4.5 million.
The partnership paid $800,000 in cash, assumed the existing mortgage of $2.5
million and issued the seller 1.1 million Class A limited partner units in the
partnership as additional consideration. The Class A units have an agreed value
of $1.00 per unit and are entitled to a fixed preferred return of 10% per annum,
paid quarterly. The Class A units may be exchanged for either shares of the
Company's Series G Preferred Stock on or after the second anniversary of the
closing at the rate of one share of Series G Preferred Stock for each 100 Class
A units exchanged, or on or after the third anniversary of the closing, the
Class A units are also exchangeable for shares of the Company's Common Stock.
The Class A units are exchangeable for shares of the Company's Common Stock at
the rate of $1.00 per unit plus any outstanding preferred return divided by .9
times the simple average of the daily closing price of the Company's Common
Stock for the 20 days preceding the date of conversion. The assumed mortgage
F-17
<PAGE> 167
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
bears interest at 12.95% per annum requires quarterly payments of interest only
and matures in June 1998. See NOTE 13. "PREFERRED STOCK."
In October 1997, the Company purchased Dalho land, a 3.4 acre parcel of
undeveloped land in Farmers Branch, Texas, for $300,000 in cash.
Also in October 1997, the Company sold a 11.6 acre tract of Valley Ranch land
for $1.2 million in cash. The net cash proceeds of $990,000, after the payment
of various closing costs associated with the sale, were deposited in a
certificate of deposit for the benefit of the lender, in accordance with the
term loan secured by such land. The certificate of deposit was released to the
lender in December 1997, in conjunction with the payoff of the loan. The Company
recognized a gain of $629,000 on the sale.
In November 1997, the Company sold two tracts of Valley Ranch land, totaling 8
acres, for $577,000 in cash. The net cash proceeds of $451,000, after the
payment of various closing costs associated with the sale, were deposited in a
certificate of deposit for the benefit of the lender, in accordance with the
term loan secured by such land. The certificate of deposit was released to the
lender in December 1997 in conjunction with the payoff of the loan. The Company
recognized a gain of $216,000 on the sale.
Also in November 1997, the Company purchased Hollywood Casino land, a 51.7 acre
parcel of undeveloped land in Farmers Branch, Texas, for $11.1 million. The
Company paid $3.6 million in cash and obtained new mortgage financing of $7.5
million. The mortgage bears interest at 9.25% per annum, requires monthly
payments of interest only and matures in December 1999.
In December 1997, the Company sold a 5.1 acre tract of the Valley Ranch land,
for $430,000 in cash. The net cash proceeds of $353,000, after the payment of
various closing costs associated with the sale, were deposited in a certificate
of deposit for the benefit of the lender, in accordance with the term loan
secured by such land. The certificate of deposit was released to the lender in
December 1997 in conjunction with the payoff of the loan. The Company recognized
a gain of $203,000 on the sale.
Also in December 1997, the Company purchased Valley Ranch III land, a 12.5 acre
parcel of undeveloped land in Irving, Texas, for $2.1 million. The Company paid
$527,000 in cash with the seller providing purchase money financing of the
remaining $1.6 million of the purchase price. The financing bears interest at
10.0% per annum, requires the payment of principal and interest at maturity, and
matures in December 1998.
Further in December 1997, the Company purchased Stagliano land, a 3.2 acre
parcel of undeveloped land in Farmers Branch, Texas, for $500,000 in cash.
In December 1997, the Company sold a 32.0 acre tract of Parkfield land in
Denver, Colorado, for $1.2 million in cash. In accordance with the provisions of
the term loan secured by such parcel, the Company applied the net cash proceeds
of $1.1 million to paydown the term loan in exchange for the lender's release of
its collateral interest in such land. The Company recognized a gain of $372,000
on the sale.
Also in December 1997, the Company exchanged a 43.0 acre tract of Valley Ranch
land for Preston Square, a 35,508 square foot shopping center in Dallas, Texas.
In accordance with the provisions of the term loan securing the Valley Ranch
land, the Company paid $2.8 million to the lender in exchange for the lender's
release of its collateral interest in such land. Simultaneously, the Company
obtained new mortgage financing of $2.5 million secured by the shopping center.
The mortgage bears interest at 8.2% per annum, requires monthly payments of
interest only and matures in December 1999. The Company recognized no gain or
loss on the exchange.
Further in December 1997, the Company sold two parcels of Valley Ranch land,
totaling 25.1 acres, for $3.3 million. The Company received net cash proceeds of
$2.1 million and provided an additional $891,000 in purchase money financing.
The purchase money financing bore interest at 10.0% per annum and matured in
January 1998. The Company received a $624,000 paydown on the purchase money
financing in January with the remainder being deferred until a zoning issue is
resolved. In accordance with the provisions of the term loan secured by such
parcel, the Company applied the net cash proceeds of $2.1 million to payoff the
term loan secured by such parcel, the lender releasing its collateral interest
in the remaining Valley Ranch land. The Company recognized a gain of $1.8
million and deferred an additional $267,000 until the zoning issue is resolved.
F-18
<PAGE> 168
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
In December 1997, the Company sold Park Plaza, a 105,507 square foot shopping
center in Manitowoc, Wisconsin, for $4.9 million in cash. The Company received
net cash of $1.6 million, after the payoff of $3.1 million in existing mortgage
debt and the payment of various closing costs associated with the sale. The
Company recognized a gain of $105,000 on the sale.
Also in December 1997, the Company sold Pin Oak land, a 567.6 acre parcel of
undeveloped land in Houston, Texas, for $11.4 million. The Company received net
cash proceeds of $3.5 million and provided an additional $6.9 million of short
term purchase money financing that was paid in full in January 1998. On the
payoff of the purchase money financing the Company received net cash of $1.5
million after the payoff of $5.2 million in underlying mortgage debt, and the
payment of various closing costs associated with the sale. The Company
recognized a gain of $3.7 million on the sale.
In November 1991, the Company transferred the Porticos Apartments to Income
Opportunity Realty Investors, Inc. ("IORI"), an equity investee, in
satisfaction, at the time, of the Company's $3.6 million obligation to IORI. The
Company recorded a deferred gain of $3.0 million on the transfer. In June 1997,
IORI sold the property, and accordingly the Company recognized such previously
deferred gain. See NOTE 6. INVESTMENTS IN EQUITY INVESTEES."
In 1991, the Company purchased all of the capital stock of a corporation which
owned 198 developed residential lots in Fort Worth, Texas. Through December 31,
1996, 188 of the residential lots had been sold. During 1997, 9 additional lots
were sold for an aggregate gain of $17,000. At December 31, 1997, one lot
remained to be sold.
In 1996, the Company sold a total of 39.1 acres of land in Las Colinas, Texas in
four separate transactions for a total of $6.8 million. The Company applied the
$6.5 million net cash proceeds to paydown the term loans secured by such land.
The Company recognized gains totaling $3.7 million from such sales.
In 1996, the Company purchased a single family residence, a hotel and a total of
1,368.5 acres of land for a total of $57.5 million. In connection with these
acquisitions, the Company obtained new or seller financing totaling $41.3
million. The mortgages bear interest at rates ranging from 9% to 15% per annum,
required monthly payments of principal and interest totaling $491,479 and
matured from June 1998 to December 1999.
NOTE 5. ALLOWANCE FOR ESTIMATED LOSSES
Activity in the allowance for estimated losses was as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Balance January 1, ............ $ 3,926 $ 7,254 $ 8,201
Amounts charged off ........... (1,528) -- (947)
Writedown of property ......... -- (3,328) --
--------- --------- ---------
Balance December 31, .......... $ 2,398 $ 3,926 $ 7,254
========= ========= =========
</TABLE>
NOTE 6. INVESTMENTS IN EQUITY INVESTEES
The Company's investment in equity investees at December 31, 1997, includes (i)
equity securities of three publicly traded real estate investment trusts,
Continental Mortgage and Equity Trust ("CMET"), IORI and Transcontinental Realty
Investors, Inc. ("TCI") (collectively the "REITs"), (ii) units of limited
partner interest of NRLP, (iii) a general partner interest in NRLP and NOLP, the
operating partnership of NRLP, through its 96% limited partner interest in SAMLP
and (iv) interests in real estate joint venture partnerships. Gene E. Phillips,
the Chairman of the Board and a Director of the Company until November 16, 1992,
is a general partner of SAMLP, the general partner of NRLP and NOLP and was a
director and Chief Executive Officer of SAMI until May 15, 1996. Randall M.
Paulson, an Executive Vice President of the Company, serves as the sole director
of SAMI and as President of the REITs, SAMI and Basic Capital Management, Inc.
("BCM"), the Company's advisor. In addition, BCM serves as advisor to the REITs,
and performs certain administrative and management functions for NRLP and NOLP
on behalf of SAMLP.
F-19
<PAGE> 169
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
The Company accounts for its investment in the REITs, NRLP and the joint venture
partnerships using the equity method as more fully described in NOTE 1. "SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES - Investments in equity investees." The
Company continues to account for its investment in NRLP under the equity method
due to the pending resignation of SAMLP as general partner of NRLP. See NOTE 2.
"SYNTEK ASSET MANAGEMENT, L.P."
Substantially all of the Company's equity securities of the REITs and NRLP are
pledged as collateral for borrowings. See NOTE 10. MARGIN BORROWINGS."
F-20
<PAGE> 170
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
The Company's investment in entity investees accounted for using the equity
method, at December 31, 1997 was as follows:
<TABLE>
<CAPTION>
Equivalent
Percentage Carrying Investee
of the Company's Value of Book Value Market Value
Ownership at Investment at at of Investment at
Investee December 31, 1997 December 31, 1997 December 31, 1997 December 31, 1997
- --------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
NRLP 54.4% $ 11,479 $ * $ 83,018
CMET 40.6 14,939 35,745 25,733
IORI 29.7 3,511 7,439 5,176
TCI 30.6 8,378 26,652 20,664
---------- ----------
38,307 $ 134,591
==========
General partner
interest in NRLP and NOLP 6,230
Other 1,314
----------
$ 45,851
==========
</TABLE>
* At December 31, 1997, NRLP reported a deficit partners' capital. The
Company's share of NRLP's revaluation equity, however, was $198.9 million.
Revaluation equity is defined as the difference between the estimated current
value of the partnership's real estate, adjusted to reflect the partnership's
estimate of disposition costs, and the amount of the mortgage notes payable
and accrued interest encumbering such property as reported in NRLP's Annual
Report on Form 10-K for the year ended December 31, 1997.
The Company's investment in entity investees accounted for using the equity
method, at December 31, 1996 was as follows:
<TABLE>
<CAPTION>
Equivalent
Percentage Carrying Investee
of the Company's Value of Book Value Market Value
Ownership at Investment at at of Investment at
Investee December 31, 1997 December 31, 1997 December 31, 1997 December 31, 1997
- --------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
NRLP 54.4% $ 14,421 $ - * $ 44,997
CMET 40.6 14,141 32,148 18,789
IORI 29.6 2,719 6,625 4,838
TCI 30.5 6,318 24,204 13,131
---------- ----------
37,599 $ 81,755
==========
General partner
interest in NRLP and NOLP 6,607
Other (2,234)
----------
$ 41,972
==========
</TABLE>
* At December 31, 1996, NRLP reported a deficit partners' capital. The
Company's share of NRLP's revaluation equity, however, was $188.5 million.
Revaluation equity is defined as the difference between the appraised value
of the partnership's real estate, adjusted to reflect the partnership's
estimate of disposition costs, and the amount of the mortgage notes payable
and accrued interest encumbering such property as reported in NRLP's Annual
Report on Form 10-K for the year ended December 31, 1996.
The Company's management continues to believe that the market value of each of
the REITs and NRLP undervalues their assets and the Company has, therefore,
continued to increase its ownership in these entities in 1997, as its liquidity
has permitted.
In April 1996, the Company purchased a 28% general partner interest in Campbell
Center Associates, Ltd. ("Campbell, Ltd."), which in turn has a 56.25% interest
in Campbell Centre Joint Venture, which owns a 413,175 square foot office
building in
F-21
<PAGE> 171
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
Dallas, Texas. The purchase price of the general partner interest was $550,000
in cash and a $500,000 note, which bears interest at 8% per annum, requires
monthly payments of interest only and matures April 2000. In January 1997, the
Company exercised its option to purchase an additional 28% general partner
interest in Campbell, Ltd. The purchase price was $300,000 in cash and a
$750,000 note, which bears interest at 8% per annum, requires monthly payments
of interest only and matures in April 2000. In July 1997, the Company purchased
an additional 9% general partner interest in Campbell, Ltd. for $868,000 in
cash.
In June 1996, a newly formed limited partnership, of which the Company is the
general partner, purchased 580 acres of undeveloped land in Collin County, Texas
for $5.7 million in cash. The Company contributed $100,000 in cash to the
partnership with the remaining $5.6 million being contributed by the limited
partner. The partnership agreement designates the Company as the managing
general partner. In September 1996, the partnership obtained financing of $2.8
million secured by the 580 acres of land and personal guarantee of the limited
partner. The Partnership agreement also provides that the limited partner
receive a 12% preferred cumulative return on his investment before any sharing
of partnership profits occurs. In April 1997, the partnership sold a 35.0 acre
tract for $1.3 million in cash. The net sales proceeds of $1.2 million were
distributed to the limited partner in accordance with the partnership agreement.
The partnership recognized a gain of $884,000 on the sale. In July 1997, the
Partnership sold a 24.6 acre tract for $800,000 in cash. In accordance with the
terms of the term loan secured by such property, $197,000 of the net sales
proceeds were used to paydown such term loan. The remaining $545,000 was
distributed to the limited partner in accordance with the partnership agreement.
The partnership recognized a gain of $497,000 on the sale. In September 1997,
the partnership sold a 77.2 acre tract for $1.5 million in cash. In accordance
with the terms of the term loan secured by such property, the net sales proceeds
were used to paydown such term loan. The partnership recognized a gain of
$704,000 on the sale. In October 1997, the partnership sold a 96.5 acre tract
for $1.7 million in cash. In accordance with the terms of the term loan secured
by such property, $548,000 of the net sales proceeds were used to paydown such
term loan and the remaining $1.1 million being distributed to the limited
partner in accordance with the partnership agreement. The partnership recognized
a gain of $691,000 on the sale. In December 1997, the partnership sold a 94.4
acre tract for $2.5 million in cash. Of the net sales proceeds, $1.8 million was
distributed to the limited partner and $572,000 was distributed to the Company
as general partner in accordance with the partnership agreement. The partnership
recognized a gain of $1.4 million on the sale. In January 1998, the partnership
sold a 155.4 acre tract for $2.9 million. The partnership received $721,000 in
cash and provided purchase money financing of an additional $2.2 million. Of the
net sales proceeds, $300,000 was distributed to the limited partner and $300,000
was distributed to the Company as general partner in accordance with the
partnership agreement. The purchase money financing bears interest at 12% per
annum, requires monthly payments of interest only and matures in July 1998. The
partnership recognized a gain of $1.2 million on the sale.
In September 1997, a newly formed limited partnership, of which the Company is a
1% general partner and 21.5% limited partner, purchased a 422.4 acre parcel of
undeveloped land in Denton County, Texas, for $16.0 million in cash. The Company
contributed $3.6 million in cash to the partnership with the remaining $12.4
million being contributed by the other limited partners. The partnership
agreement designates the Company as the managing general partner. In September
1997, the partnership obtained financing of $6.5 million secured by the 422.4
acres of land. The mortgage bears interest at 10% per annum, requires quarterly
payments of interest only and matures in September 2001. The net financing
proceeds were distributed to the partners, the Company receiving $2.9 million of
its initial investment. The partnership agreement also provides that the limited
partners receive a 12% preferred cumulative return on their investment before
any sharing of partnership profits occurs. One of the limited partners in the
partnership is also a limited partner in a partnership that owns approximately
15.6% of the Company's outstanding shares of Common Stock. See NOTE 11. CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS."
In January 1992, the Company entered into a partnership agreement with an entity
affiliated with a limited partner in a partnership that owns approximately 15.6%
of the Company's outstanding shares of Common Stock, that acquired 287 developed
residential lots adjacent to the Company's other residential lots in Fort Worth,
Texas. The partnership agreement designates the Company as managing general
partner. The partnership agreement also provides each of the partners with a
guaranteed 10% return on their respective investments. Through December 31,
1996, 197 of the residential lots had been sold. During 1997, an additional 17
lots were sold with 73 lots remaining to be sold at December 31, 1997. During
1997, each partner received $21,000 in return of capital distributions and
$12,000 in profit distributions.
F-22
<PAGE> 172
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
Set forth below are summary financial data for equity investees owned over 50%:
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Property and notes receivable, net .............................................. $ 236,367 $ 240,552
Other assets .................................................................... 43,213 59,409
Notes payable ................................................................... (339,102) (352,441)
Other liabilities ............................................................... (17,311) (19,294)
--------- ---------
Equity .......................................................................... $ (76,833) $ (71,774)
========= =========
</TABLE>
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Revenues ........................................................................ $ 124,521 $ 124,044 $ 110,892
Depreciation .................................................................... (10,418) (11,148) (10,268)
Interest ........................................................................ (34,481) (34,640) (34,956)
Operating expenses .............................................................. (79,463) (78,043) (69,572)
--------- --------- ---------
Income (loss) before gains on sale of real estate and
extraordinary gains ............................................................ 159 213 (3,904)
Gains on sale of real estate .................................................... 8,356 61 7,701
--------- --------- ---------
Net income ...................................................................... $ 8,515 $ 274 $ 3,797
========= ========= =========
</TABLE>
The difference between the carrying value of the Company's investment and the
equivalent investee book value is being amortized over the life of the
properties held by each investee.
The Company's equity share of:
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Income (loss) before gains on sale of real estate ............................... $ 817 $ 270 $ (1,767)
Gains on sale of real estate .................................................... 3,022 -- 1,884
--------- --------- ---------
Net income ...................................................................... $ 3,839 $ 270 $ 117
========= ========= =========
</TABLE>
Set forth below are summary financial data for equity investees owned less than
50%:
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Property and notes receivable, net .............................................. $ 631,825 $ 501,097
Other assets .................................................................... 80,789 57,877
Notes payable ................................................................... (483,064) (358,203)
Other liabilities ............................................................... (28,326) (19,849)
--------- ---------
Equity .......................................................................... $ 201,224 $ 180,922
========= =========
</TABLE>
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Revenues ........................................................................ $ 129,531 $ 101,246 $ 94,730
Depreciation .................................................................... (17,429) (14,408) (13,950)
Provision for losses ............................................................ (1,337) 844 (541)
Interest ........................................................................ (38,537) (30,401) (28,102)
Operating expenses .............................................................. (85,387) (69,698) (65,471)
--------- --------- ---------
(Loss) before gains on sale of real estate and
extraordinary gains ............................................................. (13,159) (12,417) (13,334)
Gains on sale of real estate .................................................... 34,297 11,701 5,822
Extraordinary gains ............................................................. -- 1,068 1,437
--------- --------- ---------
Net income (loss) ............................................................... $ 21,138 $ 352 $ (6,075)
========= ========= =========
</TABLE>
F-23
<PAGE> 173
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
The Company's equity share of:
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
(Loss) before gains on sale of real estate and
extraordinary gains ................................................................ $ (3,703) $ (2,911) $ (3,356)
Gains on sale of real estate ....................................................... 4,645 2,463
Extraordinary gains ................................................................ 10,524 381 783
-------- -------- --------
Net income (loss)................................................................... $ 6,821 $ 2,115 $ (110)
======== ======== ========
</TABLE>
The Company's cash flow from the REITs and NRLP is dependent on the ability of
each of the entities to make distributions. CMET and IORI have been making
quarterly distributions since the first quarter of 1993, NRLP since the fourth
quarter of 1993 and TCI since the fourth quarter of 1995. In 1997, the Company
received distributions totaling $1.4 million from the REITs and $1.4 million
from NRLP and accrued an additional $6.7 million in NRLP and TCI distributions
that were not received until January 1998. In 1996, the Company received total
distributions from the REITs of $2.1 million and $6.9 million from NRLP. At
December 31, 1995, the Company accrued $3.3 million in NRLP distributions which
were received January 2, 1996.
The Company's investments in the REITs and NRLP were initially acquired in 1989.
In 1997, the Company purchased an additional $172,000 of equity securities of
the REITs and NRLP.
NOTE 7. ACQUISITION OF PIZZA WORLD SUPREME, INC.
In April 1996, a newly formed subsidiary of the Company purchased, for $10.7
million in cash, 80% of the common stock of Pizza World Supreme, Inc. ( PWSI"),
which in turn had acquired 26 operating pizza parlors in various communities in
California's San Joaquin Valley. Concurrent with the purchase, the Company
granted to an individual an option to purchase 36.25% of the Company's
subsidiary at any time for the Company's net investment in such subsidiary.
Additionally, the Company held negotiations with underwriters to take such
subsidiary public. The Company believed that such option would be exercised and
further, that the subsidiary would become publicly held approximately one year
from its date of acquisition. Accordingly, the Company believed its control of
such subsidiary was temporary and therefore accounted for such subsidiary under
the equity method through April 1997. In May 1997, the Company acquired the
remaining 20% of PWSI for $5.0 million and discontinued equity accounting. The
sellers provided purchase money financing in the form of two $2.5 million term
loans. The term loans bear interest at 8% per annum, require quarterly payments
of interest only and mature in May 2007.
NOTE 8. MARKETABLE EQUITY SECURITIES - TRADING PORTFOLIO
In 1994, the Company began purchasing equity securities of entities other than
those of the REITs and NRLP to diversify and increase the liquidity of its
margin accounts. In 1997, the Company purchased $15.1 million and sold $10.6
million of such securities. These equity securities are considered a trading
portfolio and are carried at market value. At December 31, 1997, the Company
recognized an unrealized decline in the market value of the equity securities in
its trading portfolio of $850,000. In 1997, the Company realized a net gain of
$154,000 from the sale of trading portfolio securities and received $107,000 in
dividends. At December 31, 1996, the Company recognized an unrealized decline in
the market value of the equity securities in its trading portfolio of $486,000.
In 1996, the Company realized a net gain of $29,000 from the sale of trading
portfolio securities and received $163,000 in dividends. At December 31, 1995,
the Company recognized an unrealized decline in the market value of the equity
securities in its trading portfolio of $998,000. In 1995, the Company realized a
net gain of $349,000 from the sale of trading portfolio securities and received
$852,000 in dividends and $238,000 in return of capital distributions on such
securities. Unrealized and realized gains and losses in the trading portfolio
are included in other income in the accompanying Consolidated Statements of
Operations.
F-24
<PAGE> 174
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
NOTE 9. NOTES AND INTEREST PAYABLE
Notes and interest payable consisted of the following:
<TABLE>
<CAPTION>
1997 1996
--------------------------- ---------------------------
Estimated Estimated
Fair Book Fair Book
Value Value Value Value
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Notes payable
Mortgage loans ........................... $ 84,050 $ 96,654 $ 40,680 $ 68,385
Borrowings from financial institutions ... 170,491 153,369 78,812 48,929
Notes payable to affiliates .............. 7,342 4,570 1,658 4,176
------------ ------------ ------------ ------------
$ 261,883 254,593 $ 121,150 121,490
============ ============
Interest payable (including $4,836 in 1997
and $4,798 in 1996 to affiliates) ......... 7,393 6,373
------------ ------------
$ 261,986 $ 127,863
============ ============
</TABLE>
Scheduled principal payments on notes payable are due as follows:
<TABLE>
<S> <C>
1998......................................................... $ 89,049
1999......................................................... 28,400
2000......................................................... 17,771
2001 ........................................................ 29,564
2002......................................................... 8,083
Thereafter................................................... 81,726
------------
$ 254,593
============
</TABLE>
Stated interest rates on notes payable ranged from 6.0% to 15% at December 31,
1997, and mature in varying installments between 1998 and 2007. At December 31,
1997, notes payable were collateralized by mortgage notes receivable with a net
carrying value of $22.7 million and by deeds of trust on real estate with a net
carrying value of $302.3 million. Excluded from interest expense in the
accompanying Consolidated Statement of Operations is capitalized interest of
$68,000 in 1997.
In May 1997, the Company financed a previously unencumbered 10.6 acre tract of
BP Las Colinas land for $3.1 million. The mortgage bears interest at 9.5% per
annum, requires monthly payments of interest only and matures in December 1999.
In May 1997, the Company obtained a second lien mortgage of $3.0 million secured
by the Pin Oak land. The mortgage bears interest at 12.5% per annum compounded
monthly, and matures in February 1999. In January 1998, the Palm Dessert land
was substituted for the Pin Oak land as collateral for the loan. See NOTE 11.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS."
In June 1997, the Company obtained a second lien mortgage of $3.0 million
secured by the Lewisville land. The mortgage bears interest at 12.5% per annum,
compounded monthly and matures in February 1999. See NOTE 11. CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS."
In June 1997, the Company refinanced the Valwood land for $15.8 million. The
mortgage bears interest at the prime rate plus 4.5%, currently 13% per annum,
requires monthly payments of interest only and matures in June 1998. The Company
received net cash of $4.9 million, after the payoff of $6.2 million in existing
mortgage debt secured by the property, an additional $3.0 million being applied
to payoff the Jefferies land loan and $1.4 million being applied to paydown the
Las Colinas I land term loan.
In July 1997, the Company obtained a third lien mortgage of $2.0 million secured
by the Pin Oak land. The mortgage bore interest at 12.5% per annum, compounded
monthly and matured in February 1998. The mortgage was paid in full in January
1998. See NOTE 11. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS."
F-25
<PAGE> 175
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
In September 1997, the Company refinanced the Las Colinas I land Double O tract
for $7.3 million. The Company received net refinancing proceeds of $2.1 million,
after the payoff of $5.0 million in existing mortgage debt. The mortgage bears
interest at the prime rate plus 4.5%, currently 13% per annum, requires monthly
payments of interest only and matures in October 1998.
In October 1997, the Company refinanced the Oaktree Village Shopping Center for
$1.5 million. The Company received no net refinancing proceeds after the payoff
of $1.4 million in existing mortgage debt and the payment of various closing
costs associated with the financing. The note bears interest of 8.48% per annum,
requires monthly payments of principal and interest of $13,000 and matures in
November 2007.
Also in October 1997, the Company refinanced the Denver Merchandise Mart for
$25.0 million. The Company received net refinancing proceeds of $10.2 million,
after the payoff of $14.8 million in existing mortgage debt and the payment of
various closing costs associated with the financing. The note bears interest at
8.3% per annum, requires monthly payments of principal and interest and matures
in October 2012.
In November 1997, the Company obtained mortgage financing of $5.4 million
secured by 33.9 acres of previously unencumbered Valwood land, Lacy Longhorn
land, Thompson land, and Tomlin land. The Company received net financing
proceeds of $4.8 million after the payment of various closing costs associated
with the financing. The mortgage bears interest at 13.5% per annum, requires
monthly payments of interest only and matures in November 1998.
In December 1997, the Company refinanced the Inn at the Mart in Denver,
Colorado, for $4.0 million. The Company received net refinancing proceeds of
$1.4 million, after the payoff of $2.0 million in existing mortgage debt. The
mortgage bears interest at 7.85% per annum, requires monthly payments of
principal and interest of $35,000 and matures in January 2013.
In 1996, the Company purchased a single family residence, a hotel and a total of
1,368.5 acres of land for a total of $57.5 million. In connection with these
acquisitions, the Company obtained new or seller financing totaling $41.3
million. The mortgages bear interest at rates ranging from 9% to 15% per annum,
require monthly payments of principal and interest totaling $491,479 and mature
from June 1998 to December 1999.
Also in 1996, the Company refinanced the mortgage debt secured by a wraparound
mortgage note receivable, the Denver Merchandise Mart and an office building and
obtained mortgage financing for two previously unencumbered hotels, in the total
amount of $39.8 million. The Company received net cash of $23.0 million after
the payoff of $10.4 million in existing mortgage debt and the payment of various
costs associated with the financings. The mortgages bore interest rates from
9.5% to 16.5% per annum, required monthly payments of principal and interest
totaling $404,500 and matured October 1997 to September 2001.
Notes payable to affiliates at December 31, 1997 and 1996 include a $4.2 million
note due to NRLP as payment for SAMLP's general partner interest in NRLP. The
note bears interest at 10% per annum compounded semi-annually and is due at the
earlier of September 2007, the liquidation of NRLP or the withdrawal of SAMLP as
general partner of NRLP. See NOTE 2. "SYNTEK ASSET MANAGEMENT, L.P."
NOTE 10. MARGIN BORROWINGS
The Company has margin arrangements with various brokerage firms which provide
for borrowings of up to 50% of the market value of the Company's marketable
equity securities. The borrowings under such margin arrangements are secured by
equity securities of the REITs, NRLP and the Company's trading portfolio and
bear interest rates ranging from 7.0% to 11.0%. Margin borrowings were $53.3
million at December 31, 1997, and $40.0 million at December 31, 1996, 39.7% and
34.5%, respectively, of the market values of such equity securities at such
dates.
In August 1996, the Company consolidated its existing NRLP margin debt held by
various brokerage firms into a single loan of $20.3 million. In July 1997, the
lender advanced an additional $3.7 million, increasing the loan balance to $24.0
million. The loan is secured by the Company's NRLP units with a market value of
at least 50% of the principal balance of the loan. As of December 31, 1997,
3,349,169 NRLP units with a market value of $80.8 million were pledged as
security for such loan.
F-26
<PAGE> 176
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
NOTE 11. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In August 1996, the Company obtained a $2.0 million loan from a financial
institution secured by a pledge of equity securities of the REITs owned by the
Company and Common Stock of the Company owned by BCM, with a market value at the
time of $4.0 million. The Company received $2.0 million in net cash after the
payment of closing costs associated with the loan. The loan was paid in full by
the proceeds of a new $4.0 million loan from another financial institution
secured by a pledge of equity securities of the REITs owned by the Company and
Common Stock of the Company owned by BCM with a market value at the time of
$10.4 million. The Company received $2.0 million in net cash after the payoff of
the $2.0 million loan.
In September 1996, the August 1996 lender made a second $2.0 million loan. The
second loan is also secured by a pledge of equity securities of the REITs owned
by the Company and Common Stock of the Company owned by BCM with a market value
of $9.1 million. The Company received $2.0 million in net cash after the payment
of closing costs associated with the loan. The loan matures in July 1998.
In January 1998, the December 1997 lender made a second $2.0 million loan. This
loan is secured by a pledge of Common Stock in the Company owned by BCM with a
market value at the time of $4.7 million. The Company received $2.0 million in
net cash.
In May, June and July 1997, the Company obtained a total of $8.0 million in
mortgage loans from entities and trusts affiliated with the limited partner in a
partnership that owns approximately 15.6% of the Company's outstanding shares of
Common Stock. See NOTE 9. NOTES AND INTEREST PAYABLE." In January 1998, one of
the loans in the amount of $2.0 million was paid in full. In September 1997, the
limited partner also became a 22.5% limited partner in a newly formed limited
partnership of which the Company is a 1% general partner and a 21.5% limited
partner. See NOTE 6. INVESTMENTS IN EQUITY INVESTEES," NOTE 3. "NOTES AND
INTEREST PAYABLE" and NOTE 4. "REAL ESTATE."
NOTE 12. DIVIDENDS
In June 1996, the Company's Board of Directors resumed the payment of dividends
on the Company's Common Stock. The Company paid common dividends totaling $2.0
million or $.20 per share in 1997 and dividends totaling $1.5 million or $.15
per share in 1996. The Company reported to the Internal Revenue Service that
100% of the dividends paid in 1997 represented ordinary income and 100% of the
dividends paid in 1996 represented a return of capital.
NOTE 13. PREFERRED STOCK
The Company's Series B 10% Cumulative Convertible Preferred Stock consists of a
maximum of 4,000 shares with a par value of $2.00 per share and a liquidation
preference of $100.00 per share. Dividends are payable at the rate of $10.00 per
year or $2.50 per quarter to stockholders of record on the 15th day of each
March, June, September and December when and as declared by the Company's Board
of Directors. The Series B Preferred Stock is convertible between May 8, 1998
and June 8, 1998, into Common Stock of the Company at 90% of the average closing
price of the Company's Common Stock on the prior 30 trading days. At December
31, 1997, 4,000 shares of Series B Preferred Stock were issued and outstanding.
The Company's Series C 10% Cumulative Convertible Preferred Stock consists of a
maximum of 16,681 shares with a par value of $2.00 per share and a liquidation
preference of $100.00 per share. Dividends are payable at the rate of $10.00 per
year or $2.50 per quarter to stockholders of record on the 15th day of each
March, June, September and December when and as declared by the Company's Board
of Directors. The Series C Preferred Stock is convertible between November 25,
1998 and February 23, 1999, into Common Stock of the Company at 90% of the
average closing price of the Company's Common Stock on the prior 30 trading
days. At December 31, 1997, 16,681 shares of Series C Preferred Stock were
issued and outstanding.
The Company's Series D 9.50% Cumulative Preferred Stock consists of a maximum of
91,000 shares with a par value of $2.00 per share and a liquidation preference
of $20.00 per share. Dividends are payable at the rate of $1.90 per year of
$.475 per quarter to stockholders of record on the 15th day of each March, June,
September and December when and as declared by the Company's Board of Directors.
The Class A limited partner units of Ocean Beach Partners, L.P. may be exchanged
for Series D Preferred Stock at the rate of 20 Class A units for each share of
Series D Preferred Stock. No more than one-third of the Class
F-27
<PAGE> 177
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
A units held may be exchanged prior to May 31, 2001. Between June 1, 2001 and
May 31, 2006 all unexchanged Class A units are exchangeable. At December 31,
1997, none of the Series D Preferred Stock was issued.
The Company's Series E 10% Cumulative Convertible Preferred Stock consists of a
maximum of 80,000 shares with a par value of $2.00 per share and a liquidation
preference of $100.00 per share. Dividends are payable at the rate of 10.00 per
year or $2.50 per quarter to stockholders of record on the 15th day of each
March, June, September and December when and as declared by the Company's Board
of Directors for periods prior to November 4, 1999 and $11.00 per year, $2.75
per quarter thereafter. The Series E Preferred Stock is reserved for the
conversion of the Class A limited partner units of Valley Ranch, L.P. Such Class
A units may be exchanged for Series E Preferred Stock at the rate of 100 Class A
units for each share of Series E Preferred Stock. Beginning November 4, 1998,
the Series E Preferred Stock may be converted into Common Stock of the Company
at 80% of the average closing price of the Company's Common Stock on the prior
20 trading days. Up to 37.50% of the Series E Preferred Stock may be converted
between November 4, 1998 and November 3, 1999. Between November 4, 1999 and
November 3, 2001 an additional 12.50% of the original Series E Preferred Stock
may be converted, and the remainder may be converted on or after November 4,
2001. At December 31, 1997, none of the Series E Preferred Stock was issued.
The Company's Series F 10% Cumulative Convertible Preferred Stock consists of a
maximum of 7,500,000 shares with a par value of $2.00 per share and a
liquidation preference of $10.00 per share. Dividends are payable at the rate of
$1.00 per year or $.25 per quarter to stockholders of record on the 15th day of
each March, June, September and December when and as declared by the Company's
Board of Directors accruing cumulatively from August 16, 1998 and commencing on
October 15, 1998. The Series F Preferred Stock may be converted, after August
15, 2003, into Common Stock of the Company at 90% of the market value of the
Company's Common Stock for the 20 trading days prior to conversion. At December
31, 1997, 2,000,000 shares of Series F Preferred Stock were issued and
outstanding.
The Company's Series G 10% Cumulative Convertible Preferred Stock consists of a
maximum of 11,000 shares with a par value of $2.00 per share, and a liquidation
preference of $100.00 per share. Dividends are payable at the rate of $10.00 per
year or $2.50 per quarter to stockholders of record on the 15th day of each
March, June, September and December when and as declared by the Company's Board
of Directors. The Series G Preferred Stock is reserved for the conversion of the
Class A limited partner units of Grapevine American, L.P. The Class A units may
be exchanged for Series G Preferred Stock at the rate of 100 Class A units for
each share of Series G Preferred Stock, on or after October 6, 1999. The Series
G Preferred Stock may be converted, after October 6, 2000, into Common Stock of
the Company at 90% of the market value of the Company's Common Stock for the
twenty trading days prior to conversion. At December 31, 1997, none of the
Series G Preferred Stock was issued.
NOTE 14. ADVISORY AGREEMENT
Although the Company's Board of Directors is directly responsible for managing
the affairs of the Company and for setting the policies which guide it, the
day-to-day operations of the Company are performed by BCM, a contractual advisor
under the supervision of the Company's Board of Directors. The duties of the
advisor include, among other things, locating, investigating, evaluating and
recommending real estate and mortgage loan investment and sales opportunities as
well as financing and refinancing sources for the Company. BCM as advisor also
serves as a consultant in connection with the Company's business plan and
investment policy decisions made by the Company's Board of Directors.
BCM has been providing advisory services to the Company since February 6, 1989.
BCM is a company owned by a trust for the benefit of the children of Gene E.
Phillips. Mr. Phillips served as Chairman of the Board and as a Director of the
Company until November 16, 1992. Mr. Phillips also served as a director of BCM
until December 22, 1989, and as Chief Executive Officer of BCM until September
1, 1992. Mr. Phillips serves as a representative of the trust for the benefit of
his children that owns BCM and, in such capacity, has substantial contact with
the management of BCM and input with respect to BCM's performance of advisory
services to the Company. Ryan T. Phillips, a Director of the Company until June
6, 1996, is a director of BCM and a trustee of the trust that owns BCM. Karl L.
Blaha, President and Director of the Company serves as Executive Vice President
- - Commercial Asset Management of BCM. Oscar W. Cashwell, a Director of the
Company, served as Executive Vice President of BCM until January 10, 1997.
The Advisory Agreement provides that BCM shall receive base compensation at the
rate of 0.125% per month (1.5% on an annualized basis) of the Company's Average
Invested Assets. On October 23, 1991, based on the recommendation of BCM, the
F-28
<PAGE> 178
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
Company's advisor, the Company's Board of Directors approved a reduction in
BCM's base advisory fee by 50% effective October 1, 1991. This reduction remains
in effect until the Company's earnings for the four preceding quarters equals or
exceeds $.50 per share.
In addition to base compensation, the Advisory Agreement provides that BCM, or
an affiliate of BCM, receive an acquisition fee for locating, leasing or
purchasing real estate for the Company; a disposition fee for the sale of each
equity investment in real estate; a loan arrangement fee; an incentive fee equal
to 10% of net income for the year in excess of a 10% return on stockholders'
equity, and 10% of the excess of net capital gains over net capital losses, if
any; and a mortgage placement fee, on mortgage loans originated or purchased.
The Advisory Agreement further provides that BCM shall bear the cost of certain
expenses of its employees not directly identifiable to the Company's assets,
liabilities, operations, business or financial affairs; and miscellaneous
administrative expenses relating to the performance by BCM of its duties under
the Advisory Agreement.
If and to the extent that the Company shall request BCM, or any director,
officer, partner or employee of BCM, to render services to the Company other
than those required to be rendered by BCM under the Advisory Agreement, such
additional services, if performed, will be compensated separately on terms
agreed upon between such party and the Company from time to time. The Company
has requested that BCM perform loan administration functions, and the Company
and BCM have entered into a separate agreement, as described below.
The Advisory Agreement automatically renews from year to year unless terminated
in accordance with its terms. The Company's management believes that the terms
of the Advisory Agreement are at least as fair as could be obtained from
unaffiliated third parties.
Since October 4, 1989, BCM has acted as loan administration/servicing agent for
the Company, under an agreement terminable by either party upon thirty days'
notice, under which BCM services the Company's mortgage notes and receives as
compensation a monthly fee of .125% of the month-end outstanding principal
balances of the mortgage notes serviced.
NOTE 15. PROPERTY MANAGEMENT
Since February 1, 1990, affiliates of BCM have provided property management
services to the Company. Currently, Carmel Realty Services, Ltd. ("Carmel,
Ltd.") provides property management services for a fee of 5% or less of the
monthly gross rents collected on the properties under its management. Carmel,
Ltd. subcontracts with other entities for the property-level management services
to the Company at various rates. The general partner of Carmel, Ltd. is BCM. The
limited partners of Carmel, Ltd. are (i) First Equity Properties, Inc. ("First
Equity"), which is 50% owned by BCM, (ii) Gene E. Phillips and (iii) a trust for
the benefit of the children of Mr. Phillips. Carmel, Ltd. subcontracts the
property-level management of the Company's hotels, shopping centers, its office
building and the Denver Merchandise Mart to Carmel Realty, Inc. ("Carmel
Realty"), which is a company owned by First Equity. Carmel Realty is entitled to
receive property and construction management fees and leasing commissions in
accordance with the terms of its property-level management agreement with
Carmel, Ltd.
F-29
<PAGE> 179
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
NOTE 16. ADVISORY FEES, PROPERTY MANAGEMENT FEES, ETC.
Fees and cost reimbursements to BCM and its affiliates were as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Fees
Advisory and mortgage servicing ................. $ 2,657 $ 1,539 $ 1,195
Loan arrangement ................................ 592 806 95
Brokerage commissions ............................. 7,586 1,889 905
Property and construction management and leasing
commissions* .................................... 865 892 1,200
--------- --------- ---------
$ 11,700 $ 5,126 $ 3,395
========= ========= =========
Cost reimbursements ............................. $ 1,809 $ 691 $ 516
========= ========= =========
</TABLE>
* Net of property management fees paid to subcontractors, other than Carmel
Realty.
NOTE 17. INDUSTRY SEGMENTS
<TABLE>
<CAPTION>
Real Pizza
1997X Estate Parlor Total
------------ ------------ ------------
<S> <C> <C> <C>
Revenues ........................... $ 29,075 $ 17,926 $ 47,001
Income (loss) before income taxes .. (4,007) 1,579 (2,428)
Identifiable assets ................ 410,000 23,799 433,799
Depreciation and amortization ...... 2,652 686 3,338
Capital expenditures ............... 10,993 6,693 17,686
</TABLE>
NOTE 18. INCOME TAXES
Financial statement income varies from taxable income, principally due to the
accounting for income and losses of investees, gains and losses from asset
sales, depreciation on owned properties, amortization of discounts on notes
receivable and payable and the difference in the allowance for estimated losses.
At December 31, 1997, the Company had a tax net operating loss carryforwards of
$21.0 million expiring through 2011.
At December 31, 1997, the Company has a deferred tax benefit of $8.0 million due
to tax deductions available to it in future years. However, due to, among other
factors, the Company's inconsistent earnings history, the Company was unable to
conclude that the future realization of such deferred tax benefit, which
requires the generation of taxable income, was more likely than not.
Accordingly, a valuation allowance for the entire amount of the deferred tax
benefit has been recorded.
The components of tax expense are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Income tax provision
Current .................................... $ -- $ -- $ 2
============ ============ ============
</TABLE>
F-30
<PAGE> 180
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
NOTE 19. EXTRAORDINARY GAIN
In 1996, the Company recognized an extraordinary gain of $381,000 representing
its equity share of TCI's extraordinary gain from the early payoff of debt and
CMET's extraordinary gain from an insurance settlement.
In 1995, the Company recognized an extraordinary gain of $783,000 representing
its equity share of TCI's extraordinary gain from early payoff of debt.
NOTE 20. RENTS UNDER OPERATING LEASES
The Company's operations include the leasing of an office building, a
merchandise mart and shopping centers. The leases thereon expire at various
dates through 2006. The following is a schedule of minimum future rents under
non-cancelable operating leases as of December 31, 1997:
<TABLE>
<S> <C>
1998.................................. $ 3,747
1999.................................. 3,427
2000.................................. 2,773
2001.................................. 2,231
2002.................................. 1,875
Thereafter............................ 10,746
----------
$ 24,799
==========
</TABLE>
PWSI conducts the majority of its operations from leased facilities which
includes an office, warehouse, and sixty-one pizza parlor locations for which a
lease was signed and the pizza parlor was either open at December 31, 1997 or
scheduled to open thereafter. The leases expire over the next twelve years. PWSI
also leases vehicles under operating leases. the following is a schedule of
minimum future rent commitments under operating leases as of December 31, 1997:
<TABLE>
<S> <C>
1998.................................. $ 2,133
1999.................................. 2,176
2000.................................. 2,007
2001.................................. 1,806
2002.................................. 1,773
Thereafter............................ 9,387
----------
$ 19,282
==========
</TABLE>
Total facilities and automobile rent expense relating to these leases was $1.3
million in 1997.
NOTE 21. COMMITMENTS AND CONTINGENCIES
The Company is involved in various lawsuits arising in the ordinary course of
business. In the opinion of the Company's management the outcome of these
lawsuits will not have a material impact on the Company's financial condition,
results of operations or liquidity.
F-31
<PAGE> 181
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
NOTE 22. QUARTERLY RESULTS OF OPERATIONS
The following is a tabulation of the Company's quarterly results of operations
for the years 1997 and 1996 (unaudited):
<TABLE>
<CAPTION>
Three Months Ended
--------------------------------------------------------------------
1997 March 31, June 30, September 30, December 31,
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Revenue ........................... $ 7,499 $ 9,667 $ 15,039 $ 17,766
Expense ........................... 11,795 15,960 24,296 31,304
-------------- -------------- -------------- --------------
(Loss) from operations ............ (4,296) (6,293) (9,257) (13,538)
Equity in income of investees ..... 280 4,970 (145) 5,555
Gains on sale of real estate ...... 4,287 3,863 3,205 8,941
Extraordinary gain ................ -- -- -- --
-------------- -------------- -------------- --------------
Net income (loss) ................. 271 2,540 (6,197) 1,369
Preferred dividend requirement .... (50) (49) (49) (58)
-------------- -------------- -------------- --------------
Net income (loss) applicable to
common shares ..................... $ 221 $ 2,491 $ (6,246) $ 900
============== ============== ============== ==============
Earnings per share
Net income (loss) ................. $ .02 $ .21 $ (.52) $ .07
============== ============== ============== ==============
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended
------------------------------------------------------------
1996 March 31, June 30, September 30, December 31,
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenue .................................. $ 6,790 $ 5,346 $ 7,306 $ 7,537
Expense .................................. 8,255 8,555 9,279 12,488
------------ ------------ ------------ ------------
(Loss) from operations ................... (1,465) (3,209) (1,973) (4,951)
Equity in income of investees ............ 678 271 661 394
Gains on sale of real estate ............. 559 547 1,961 592
Extraordinary gain ....................... 13 247 121 --
------------ ------------ ------------ ------------
Net income (loss) ........................ (215) (2,144) 770 (3965)
Preferred dividend requirement ........... -- (17) (48) (48)
------------ ------------ ------------ ------------
Net income (loss) applicable to
common shares ............................ $ (215) $ (2,161) $ 722 $ (4,013)
============ ============ ============ ============
Earnings per share
Income (loss) before extraordinary gain .. $ (.02) $ (.19) $ .05 $ (.28)
Extraordinary gain ....................... -- .02 .01 --
------------ ------------ ------------ ------------
Net income (loss) ........................ $ (.02) $ (.17) $ .06 $ (.28)
============ ============ ============ ============
</TABLE>
NOTE 23. SUBSEQUENT EVENTS
In January 1998, the Company purchased El Dorado Parkway land, a 8.5 acre parcel
of undeveloped land in McKinney, Texas, for $952,000. The Company paid $307,000
in cash and assumed the existing mortgage of $164,000 with the seller providing
purchase money financing of the remaining $481,000 of the purchase price. The
assumed mortgage bears interest at 10% per annum, requires semiannual payments
of principal and interest of $18,000 and matures in May 2005. The financing
bears interest at 8% per annum, requires semiannual principal and interest
payments of $67,000 and matures in January 2002.
F-32
<PAGE> 182
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
Also in January 1998, the Company purchased Valley Ranch IV land, a 12.3 acre
parcel of undeveloped land in Irving, Texas, for $2.0 million. The Company paid
$500,000 in cash with the seller providing purchase money financing of the
remaining $1.5 million of the purchase price. The financing bears interest at
10% per annum, requires quarterly payments of interest only and matures in
December 2000.
Further in January 1998, the Company purchased JHL Connell land, a 7.7 acre
parcel of undeveloped land in Carrollton, Texas, for $1.3 million in cash.
In February 1998, the Company purchased Scoggins land, a 314.5 acre parcel of
undeveloped land in Tarrant County, Texas, for $3.0 million. The Company paid
$1.5 million in cash and obtained new mortgage financing of $1.5 million. The
mortgage bears interest at 14% per annum, requires quarterly payments of
interest only, requires a principal paydown of $300,000 in May 1998, and matures
in February 1999.
Also in February 1998, the Company purchased Bonneau land, a 8.4 acre parcel of
undeveloped land in Dallas County, Texas, for $1.0 million. The Company obtained
new mortgage financing of $1.0 million. The mortgage bears interest at 18.5% per
annum with the principal and interest being due at maturity in February 1999.
Further in February 1998, the Company financed the previously unencumbered
Kamperman land in the amount of $1.6 million. The Company received net financing
proceeds of $1.5 million after the payment of various closing costs associated
with the financing. The mortgage bears interest at 9.0%, requires monthly
payments of interest only and matures in February 2000.
In February 1998, the Company refinanced the Vineyards land in the amount of
$3.4 million. The Company received net refinancing proceeds of $2.9 million,
after the payoff of existing mortgage debt of $540,000. The note bears interest
at 9.0% per annum, requires monthly payments of interest only and matures in
February 2000.
Also in February 1998, the Company financed the unencumbered Valley Ranch land
in the amount of $4.3 million. The Company received net financing proceeds of
$4.1 million after the payment of various closing costs associated with the
financing. The mortgage bears interest at 9.0% per annum, requires monthly
payments of interest only and matures in February 2000.
In November 1994, the Company and an affiliate of BCM, sold five apartment
complexes to a newly formed limited partnership in exchange for $3.2 million in
cash, a 27% limited partner interest in the partnership and two mortgage notes
receivable, secured by one of the properties sold. The Company had the option to
reacquire the properties at any time after September 1997 for their original
sales prices, after the buyer received a 12% return on its investment.
Accordingly, the Company recorded a deferred gain of $5.6 million which was
offset against the Company's investment in the partnership. In February 1998,
the Company reacquired three of the properties for $7.7 million. The Company
paid $4.0 million in cash and assumed the existing mortgage of $3.7 million.
Simultaneously the Company refinanced the three properties for a total of $7.8
million, the Company receiving net cash of $3.9 million after the payoff of $3.7
million in existing mortgage debt and the payment of various costs associated
with the financing. The new mortgages bear interest at 9.5% per annum, require
monthly principal and interest payments of a total of $66,000 and mature in
February 2008. In addition, the Company received a refund of $230,000 from
Carmel Realty, representing the commission the Company had paid on the sale of
the properties in 1994.
In March 1998, the Company financed the previously unencumbered Stagliano and
Dalho land in the amount of $800,000 with the lender on the Bonneau land,
described above. The Company received net financing proceeds of $790,000 after
the payment of various closing costs associated with the financing. The mortgage
bears interest at 18.5% per annum with principal and interest due at maturity in
February 1999. The Company's JHL Connell land is also pledged as additional
collateral for this loan.
F-33
<PAGE> 183
AMERICAN REALTY TRUST, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
------------ ------------
(dollars in thousands,
except per share)
<S> <C> <C>
Assets
Notes and interest receivable
Performing .................................. $ 341 $ 9,300
Nonperforming ............................... 499 18,624
------------ ------------
840 27,924
Less - allowance for estimated losses ............ (667) (2,398)
------------ ------------
173 25,526
Real estate held for sale, net of accumulated
depreciation ($5,098 in 1997) ............... 185,454 178,938
Real estate held for investment, net of
accumulated depreciation ($7,624
in 1998 and $5,380 in 1997) .............. 213,168 123,515
Pizza parlor equipment, net of accumulated
depreciation ($1,272 in 1998
and $905 in 1997) ........................ 7,347 6,693
Marketable equity securities, at market value .... 6,196 6,205
Cash and cash equivalents ........................ 4,649 5,347
Investments in equity investees .................. 61,671 45,851
Intangibles, net of accumulated amortization,
($952 in 1998 and $704 in 1997) ............... 15,086 15,230
Other assets ..................................... 26,262 26,494
------------ ------------
$ 520,006 $ 433,799
============ ============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-34
<PAGE> 184
AMERICAN REALTY TRUST, INC.
CONSOLIDATED BALANCE SHEETS - CONTINUED
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
------------ ------------
(dollars in thousands,
except per share)
<S> <C> <C>
Liabilities and Stockholders' Equity
Liabilities
Notes and interest payable ($11,700 in 1998 and
$11,400 in 1997 to affiliates) ................... $ 342,679 $ 261,986
Margin borrowings ..................................... 56,185 53,376
Accounts payable and other liabilities (including
$10,726 in 1998 and $22,825 in 1997 to
affiliate) ....................................... 23,924 34,442
------------ ------------
422,788 349,804
Minority interest ..................................... 28,921 20,542
Commitments and contingencies
Stockholders' equity
Preferred Stock, $2.00 par value, authorized
20,000,000 shares, issued and outstanding
Series B, 4,000 shares in 1997 ............... -- 8
Series C, 16,681 shares in 1998 and 1997
(liquidation preference $1,668) ........ 33 33
Series F, 3,100,000 shares in 1998 and 1997
(liquidation preference $31,000) ....... 5,600 4,000
Series G, 1,000 shares in 1998)
(liquidation preference $100) .......... 2 --
Common stock, $.01 par value; authorized
100,000,000 shares, issued 13,492,800 shares
in 1998 and 13,479,348 in 1997 ................... 135 135
Paid-in capital ....................................... 83,691 84,943
Accumulated (deficit) ................................. (21,137) (25,638)
Treasury stock at cost, 2,737,216 shares in 1998
and 2,767,427 shares in 1997 ..................... (27) (28)
------------ ------------
68,297 63,453
------------ ------------
$ 520,006 $ 433,799
============ ============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-35
<PAGE> 185
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
For the Three Months For the Six Months
Ended June 30, Ended June 30,
-------------------------------- --------------------------------
1998 1997 1998 1997
-------------- -------------- -------------- --------------
(dollars in thousands, except per share)
<S> <C> <C> <C> <C>
Income
Sales .................................... $ 7,332 $ 2,181 $ 14,085 $ 2,181
Rents ................................. 15,741 5,014 27,308 10,922
Interest .............................. 16 1,176 154 2,297
Other ................................. (399) 1,296 (608) 1,766
-------------- -------------- -------------- --------------
22,690 9,667 40,939 17,166
-------------- -------------- -------------- --------------
Expenses
Cost of sales ............................ 6,225 1,688 12,005 1,688
Property operations ................... 11,541 4,018 21,204 8,471
Interest .............................. 13,001 6,870 22,537 12,074
Advisory and servicing fees
to affiliate ........................... 949 585 1,709 1,009
Incentive compensation to
affiliate .............................. -- 299 -- 299
General and administrative ............ 1,942 1,556 4,227 2,351
Depreciation and
amortization ........................... 1,727 600 2,959 1,147
Minority interest ..................... 445 344 933 716
-------------- -------------- -------------- --------------
35,830 15,960 65,574 27,755
-------------- -------------- -------------- --------------
(Loss) from operations ................... (13,140) (6,293) (24,635) (10,589)
Equity in income of investees ............ 18,943 4,970 21,330 5,250
Gains on sale of real estate ............. 8,974 3,863 8,974 8,150
-------------- -------------- -------------- --------------
Net income ............................... 14,777 2,540 5,669 2,811
Preferred dividend requirement ........... (84) (49) (135) (99)
-------------- -------------- -------------- --------------
Net income applicable
to Common shares ......................... $ 14,693 $ 2,491 $ 5,534 $ 2,712
============== ============== ============== ==============
Earnings per share
Net income ............................... $ 1.38 $ .21 $ .53 $ .23
============== ============== ============== ==============
Weighted average Common shares
used in computing earnings
per share ................................ 10,732,266 12,075,307 10,724,507 12,114,939
============== ============== ============== ==============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-36
<PAGE> 186
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE SIX MONTHS ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
Series B Series C Series F Series G
Preferred Preferred Preferred Preferred Common
Stock Stock Stock Stock Stock
-------------- -------------- -------------- -------------- --------------
(dollars in thousands, except per share)
<S> <C> <C> <C> <C> <C>
Balance, January 1, 1998 ................... $ 8 $ 33 $ 4,000 $ -- $ 135
Dividends
Common Stock ($.10
per share) ........................ -- -- -- -- --
Series B Preferred
Stock ($2.50 per
share) ............................ -- -- -- -- --
Series C Preferred
Stock $5.00 per
share) ............................ -- -- -- -- --
Issuance of Series G
Preferred Stock ...................... -- -- -- 2 --
Issuance of Series F
Preferred Stock ...................... -- -- 1,600 -- --
Sale of Common Stock
under dividend
reinvestment plan .................... -- -- -- -- --
Conversion of Series B
Preferred Stock to
Common Stock ......................... (8) -- -- -- --
Net income ................................. -- -- -- -- --
-------------- -------------- -------------- -------------- --------------
Balance, June 30, 1998 ..................... $ -- $ 33 $ 5,600 $ 2 $ 135
============== ============== ============== ============== ==============
<CAPTION>
Treasury Paid-in Accumulated Stockholders'
Stock Capital (Deficit) Equity
-------------- -------------- -------------- --------------
(dollars in thousands, except per share)
<S> <C> <C> <C> <C>
Balance, January 1, 1998 ................... $ (28) $ 84,943 $ (25,638) $ 63,453
Dividends
Common Stock ($.10
per share) ........................ -- -- (1,033) (1,033)
Series B Preferred
Stock ($2.50 per
share) ............................ -- -- (54) (54)
Series C Preferred
Stock $5.00 per
share) ............................ -- -- (81) (81)
Issuance of Series G
Preferred Stock ...................... -- 98 -- 100
Issuance of Series F
Preferred Stock ...................... -- (1,600) -- --
Sale of Common Stock
under dividend
reinvestment plan .................... -- 197 -- 197
Conversion of Series B
Preferred Stock to
Common Stock ......................... 1 53 -- 46
Net income ................................. -- -- 5,669 5,669
-------------- -------------- -------------- --------------
Balance, June 30, 1998 ..................... $ (27) $ 83,691 $ (21,137) $ 68,297
============== ============== ============== ==============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-37
<PAGE> 187
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For the Six Months
Ended June 30,
----------------------------
1998 1997
------------ ------------
<S> <C> <C>
Cash Flows from Operating Activities (dollars in thousands)
Pizza parlor sales collected ............................... $ 14,029 $ 2,181
Rents collected ............................................ 23,512 10,443
Interest collected ......................................... 381 2,071
Distributions from equity investees' operating
cash flow ................................................ 8,498 1,315
Payments for pizza parlor operations ....................... (13,781) (1,688)
Payments for property operations ........................... (18,428) (5,938)
Interest paid .............................................. (16,497) (7,517)
Advisory and servicing fees paid to affiliate .............. (1,709) (1,009)
General and administrative expenses paid ................... (4,232) (2,404)
Other ...................................................... (861) (396)
------------ ------------
Net cash (used in) operating activities .................. (9,088) (2,942)
Cash Flows From Investing Activities
Collections on notes receivable ............................ 7,653 5,499
Funding of notes receivable ................................ (268) (2,888)
Pizza parlor equipment purchased ........................... (787) --
Proceeds from sale of real estate .......................... 34,126 12,385
Proceeds from sale of marketable equity
securities ............................................... 3,787 4,613
Purchases of marketable equity securities .................. (5,001) (6,345)
Investment in real estate entities ......................... (2,650) (463)
Distributions from equity investees' investing
activities .............................................. 13,165 --
Acquisition of real estate ................................. (37,283) (37,063)
Deposits ................................................... (903) (3,883)
Real estate improvements ................................... (4,807) (3,162)
------------ ------------
Net cash provided by (used in) investing
activities .............................................. 7,032 (31,307)
Cash Flows From Financing Activities
Proceeds from notes payable ................................ 82,395 39,472
Payments on notes payable .................................. (60,922) (22,535)
Deferred borrowing costs ................................... (6,322) (2,454)
Net advances (payments) to/from affiliates ................. (12,153) 22,735
Margin borrowings, net ..................................... 220 2,353
Common dividends paid ...................................... (1,033) (1,013)
Preferred dividends paid ................................... (91) (20)
Distributions to minority interest ......................... (933) (716)
Sale of Common Stock under dividend
reinvestment plan ....................................... 197 --
------------ ------------
Net cash provided by financing activities ................ 1,358 37,822
Net increase (decrease) in cash and cash
equivalents ............................................. $ (698) $ 3,573
Cash and cash equivalents, beginning of period ............... 5,347 1,254
------------ ------------
Cash and cash equivalents, end of period ..................... $ 4,649 $ 4,827
============ ============
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-38
<PAGE> 188
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION>
For the Three Months
Ended March 31,
----------------------------
1998 1997
------------ ------------
(dollars in thousands)
<S> <C> <C>
Reconciliation of net income to net cash provided
by (used in) operating activities
Net income ........................................... $ 5,669 $ 2,811
Adjustments to reconcile net income to net cash
provided by (used in) operating activities
Depreciation and amortization .................... 2,959 1,147
Amortization of deferred borrowing cost .......... 3,462 1,712
Gain on sale of real estate ...................... (8,974) (8,150)
Distributions from equity investees' operating
cash flow ................................... 8,498 14,448
Equity in (income) losses of investees ........... (21,330) (5,250)
(Increase) decrease in marketable equity
securities .................................. 9 (1,600)
(Increase) decrease in accrued interest
receivable .................................. 346 (93)
(Increase) decrease in other assets .............. (1,523) (5,856)
(Decrease) increase in accrued interest payable .. 349 (1,680)
(Decrease) increase in accounts payable and
other liabilities ........................... 1,640 (613)
Other ............................................ (193) 182
------------ ------------
Net cash (used in) operating activities ........ $ (9,088) $ (2,942)
============ ============
Schedule of noncash investing and financing activities
Stock dividends on Series C Preferred Stock .......... $ -- $ 82
Notes payable from acquisition of real estate ........ 14,619 32,154
Notes payable from acquisition of minority
interest ......................................... -- 5,000
Notes receivable canceled on reacquisition of
property ......................................... 1,300 --
Note receivable from sale of real estate ............. -- 800
Issuance of Series F Preferred Stock ................. 1,600 --
Issuance of Series G Preferred Stock ................. 100 --
Investment in properties reacquired .................. 5,270 --
Foreclosure of note receivable ....................... 22,715 --
Dividend obligation discharged on conversion of
Series B Preferred Stock ......................... 44 --
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-39
<PAGE> 189
AMERICAN REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION>
For the Six Months
Ended June 30,
----------------------------
1998 1997
------------ ------------
(dollars in thousands)
<S> <C> <C>
Acquisition of Pizza World Supreme, Inc.
Carrying value of intangibles .............. $ -- $ 15,482
Carrying value of pizza parlor equipment ... -- 3,998
Carrying value of note receivable retired .. -- 13,387
Carrying value of accounts payable and other
liabilities ............................ -- 1,314
Acquisition of IGI Properties
Carrying value of mortgages assumed ........ 43,421 --
Issuance of Class A partnership units ...... 6,568 --
Carrying value of other assets ............. (441) --
Carrying value of accounts payable and other
liabilities ............................ 292 --
Investment in partnerships ................. 1,980 --
</TABLE>
The accompanying notes are an integral part of these Consolidated Financial
Statements.
F-40
<PAGE> 190
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. BASIS OF PRESENTATION
The accompanying Consolidated Financial Statements of American Realty Trust,
Inc. and consolidated entities (the "Company") have been prepared in conformity
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and footnotes required
by generally accepted accounting principles for complete financial statements.
The accompanying Consolidated Financial Statements have not been examined by
independent certified public accountants but in the opinion of the management of
the Company, all adjustments (consisting of normal recurring accruals) necessary
for a fair presentation of consolidated results of operations, consolidated
financial position and consolidated cash flows at the dates and for the periods
indicated, have been included. Operating results for the six month period ended
June 30, 1998 are not necessarily indicative of the results that may be expected
for the year ending December 31, 1998.
Certain balances for 1997 have been reclassified to conform to the 1998
presentation.
NOTE 2. SYNTEK ASSET MANAGEMENT, L.P.
The Company owns a 96% limited partner interest in Syntek Asset Management, L.P.
( SAMLP"). SAMLP is the general partner of National Realty, L.P. ( NRLP") and
National Operating, L.P. ("NOLP"), the operating partnership of NRLP. Gene E.
Phillips, a Director and Chairman of the Board of the Company until November 16,
1992, is also a general partner of SAMLP. As of June 30, 1998, the Company owned
approximately 54% of the outstanding limited partner units of NRLP.
NRLP, SAMLP and Mr. Phillips were among the defendants in a class action lawsuit
arising from the formation of NRLP. An agreement settling such lawsuit (the
"Settlement Agreement") for the above mentioned defendants became effective on
July 5, 1990. The Settlement Agreement provided for, among other things, the
appointment of an NRLP oversight committee and the establishment of specified
annually increasing targets for five years relating to the price of NRLP's units
of limited partner interest.
The Settlement Agreement provides for the resignation and replacement of SAMLP
as general partner if the unit price targets are not met for two consecutive
anniversary dates. NRLP did not meet the unit price targets for the first and
second anniversary dates. On July 8, 1992, SAMLP notified the NRLP oversight
committee of the failure of NRLP to meet the unit price targets for two
successive years and that it expects to resign as general partner of NRLP and
NOLP.
The withdrawal of SAMLP as general partner would require NRLP to purchase
SAMLP's general partner interest (the "Redeemable General Partner Interest") at
its then fair value, and to pay certain fees and other compensation as provided
in the partnership agreement. Syntek Asset Management, Inc. ("SAMI"), the
managing general partner of SAMLP, has calculated the fair value of such
Redeemable General Partner Interest to be $49.6 million at June 30, 1998, before
reduction for the principal balance ($4.2 million at June 30, 1998) and accrued
interest ($7.8 million at June 30, 1998) on the note receivable from SAMLP for
its original capital contribution to the partnership.
On December 15, 1997, NRLP, SAMLP, the NRLP oversight committee, Joseph B.
Moorman, Invenex and the Counsel for the plaintiff class members executed an
Agreement for Establishment of a Class Distribution Fund which provided for the
nomination of an entity affiliated with SAMLP to be the successor general
partner of NRLP and NOLP, for the establishment of a fund for the benefit of the
plaintiff class members consisting of cash and properties owned by NOLP and for
the resolution of all related matters under the Settlement Agreement.
The Resolution Agreement was submitted to the Judge appointed to supervise the
class action settlement (the "Supervising Judge") and on February 11, 1998, the
Supervising Judge entered an order granting preliminary approval of the
Resolution Agreement. On July 15, 1998, NRLP, SAMLP and the NRLP oversight
committee executed an Agreement for Cash Distribution and Election of Successor
General Partner (the "Cash Distribution Agreement") which provides for the
nomination of an entity affiliated with SAMLP to be the successor general
partner of NRLP, for the distribution of $11.4 million to the plaintiff class
members and for the resolution of all related matters under the Settlement
Agreement. The Cash Distribution Agreement was submitted to the Supervising
Judge on July 23, 1998 as
F-41
<PAGE> 191
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
an alternative to the Resolution Agreement. On July 27, 1998, Invenex withdrew
the proposal for approval of the Resolution Agreement. On August 4, 1998, the
Supervising Judge entered an order granting preliminary approval of the Cash
Distribution Agreement and directed that a notice be prepared to be mailed to
the plaintiff class members describing the Cash Distribution Agreement. In
addition, the Supervising Judge scheduled October 16, 1998 as the date for the
final hearing on any objections to the Cash Distribution Agreement.
Pursuant to the order entered on August 4, 1998, $11.4 million will be deposited
by NRLP into an escrow account following the final approval by the Supervising
Judge of the Cash Distribution Agreement. The actual distribution of the cash to
the plaintiff class members will occur immediately following the election and
taking office of the successor general partner. The distribution of the cash
shall be made to the NRLP plaintiff class members pro rata based upon the
formation of NRLP in 1987. The distribution of cash will be under the control of
an independent settlement administrator.
Upon final approval by the Supervising Judge, the proposal to elect the
successor general partner will be submitted to the unitholders of NRLP for a
vote. All units of NRLP owned by affiliates of SAMLP (approximately 60.5% of the
outstanding units of NRLP as of July 31, 1998) will be voted pro rata with the
vote of the other limited partners.
Upon approval by the NRLP unitholders, SAMLP shall withdraw as general partner
and the successor general partner shall take office. If the required approvals
are obtained, it is anticipated that the successor general partner will be
elected and take office during the fourth quarter of 1998. Upon the election and
taking office of the successor general partner and the distribution of the cash
to the plaintiff class members, the Settlement Agreement and the NRLP oversight
committee shall be terminated.
Under the Cash Distribution Agreement, SAMLP has agreed to waive its right under
the Settlement Agreement to receive any payment from NRLP for its Redeemable
General Partner Interest upon its resignation and the election of a successor
general partner. In addition, pursuant to the Cash Distribution Agreement, the
NRLP partnership agreement will be amended to provide that, upon voluntary
resignation of the general partner, the resigning general partner shall not be
entitled to the repurchase of its general partner interest under Paragraph 17.9
of the NRLP partnership agreement.
Under the Cash Distribution Agreement, the successor general partner will assume
liability for the note receivable from SAMLP for its capital contribution to
NRLP. In addition, the successor general partner will assume liability for a
note receivable which will require the repayment to NRLP of the total amount of
cash distributed by NRLP under the Cash Distribution Agreement. This note will
require repayment over a ten-year period, bear interest and be guaranteed by the
Trust, which (as of July 31, 1998) is the owner of a 96% limited partner
interest in SAMLP and approximately 54% of the outstanding units of NRLP.
In the event that the Cash Distribution Agreement is disapproved by the
Supervising Judge or does not become effective pursuant to the provisions
thereof, then the parties shall be restated to their respective positions as of
December 14, 1997, all of the provisions of the Cash Distribution Agreement
shall be void, and the Settlement Agreement shall remain in full force and
effect.
NOTE 3. NOTES AND INTEREST RECEIVABLE
In December 1997, the Company sold the Pin Oak land, a 567.6 acre parcel of
undeveloped land in Houston, Texas, for $11.4 million. The Company received net
cash of $3.5 million, and provided an additional $6.9 million in short term
seller financing that was paid in full in January 1998. On the payoff of the
seller financing the Company received net cash of $1.5 million after paying off
$5.2 million in underlying mortgage debt and the payment of various closing
costs associated with the sale.
In August 1990, the Company obtained the Continental Hotel and Casino in Las
Vegas, Nevada, through foreclosure subject to first and second lien mortgages
totaling $10.0 million. In June 1992, the Company sold the hotel and casino for,
among other consideration, a $22.0 million wraparound mortgage note receivable.
In March 1997, the wraparound note was modified and extended in exchange for,
among other things, the borrower's commitment to invest $2.0 million in
improvements to the hotel and casino within four months of the March 1997
modification and an additional $2.0 million
F-42
<PAGE> 192
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
prior to December 1997. The borrower stopped making mortgage payments in April
1997, and did not make the required improvements. In December 1997, the borrower
filed for bankruptcy protection. In February 1998, a hearing was held to allow
the Company to foreclose on the hotel and casino. At the hearing, the court
ruled that the borrower had 90 days to submit a reorganization plan and
beginning March 2, 1998, required the borrower to make monthly payments of
$175,000 to the Company. The Company received the first such payment on March 2,
1998. The Company's wraparound mortgage note receivable had a principal balance
of $22.7 million at March 31, 1998. In April 1998, the bankruptcy court allowed
the Company to foreclose on its mortgage note receivable. The Company did not
incur a loss on foreclosure as the fair value of the property exceeded the
carrying value of the Company's mortgage note receivable.
NOTE 4. REAL ESTATE
In January 1998, the Company purchased the El Dorado Parkway land, a 8.5 acre
parcel of undeveloped land in McKinney, Texas, for $952,000. The Company paid
$307,000 in cash, assumed the existing mortgage of $164,000 and obtained seller
financing of the remaining $481,000 of the purchase price. The mortgage bears
interest at 10% per annum, requires semiannual payments of principal and
interest of $18,000 and matures in May 2005. The seller financing bears interest
at 8% per annum, requires semiannual payments of principal and interest of
$67,000 and matures in January 2002. The Company paid a real estate brokerage
commission of $57,000 to Carmel Realty, Inc. ("Carmel Realty"), an affiliate of
Basic Capital Management, Inc. ("BCM"), the Company's advisor, based on the
$952,000 purchase price of the property.
Also in January 1998, the Company purchased the Valley Ranch IV land, a 12.3
acre parcel of undeveloped land in Irving, Texas, for $2.0 million. The Company
paid $500,000 in cash and obtained seller financing of the remaining $1.5
million of the purchase price. The seller financing bears interest at 10% per
annum, requires quarterly payments of interest only and matures in December
2000. The Company paid a real estate brokerage commission of $123,000 to Carmel
Realty based on the $2.0 million purchase price of the property.
Further in January 1998, the Company purchased the JHL Connell land, a 7.7 acre
parcel of undeveloped land in Carrollton, Texas, for $1.3 million in cash. The
Company paid a real estate brokerage commission of $39,000 to Carmel Realty
based on the $1.3 million purchase price of the property.
In February 1998, the Company purchased the Scoggins land, a 314.5 acre parcel
of undeveloped land in Tarrant County, Texas, for $3.0 million. The Company paid
$1.5 million in cash and obtained new mortgage financing of $1.5 million. The
mortgage bears interest at 14% per annum, requires quarterly payments of
interest only, required a principal reduction payment of $300,000 in May 1998,
and matures in February 1999. The Company paid a real estate brokerage
commission of $91,000 to Carmel Realty based on the $3.0 million purchase price
of the property.
Also in February 1998, the Company purchased the Bonneau land, a 8.4 acre parcel
of undeveloped land in Dallas County, Texas, for $1.0 million. The Company
obtained new mortgage financing of $1.0 million. The mortgage bears interest at
18.5% per annum with principal and interest due at the maturity in February
1999. The Company's JHL Connell land is pledged as additional collateral for
this loan. The Company paid a real estate brokerage commission of $30,000 to
Carmel Realty based on the $1.0 million purchase price of the property.
Further in February 1998, the Company financed its unencumbered Kamperman land
in the amount of $1.6 million. The Company received net cash of $1.5 million
after the payment of various closing costs associated with the financing. The
mortgage bears interest at 9.0% per annum, requires monthly payments of interest
only and matures in February 2000. The Company paid a mortgage brokerage and
equity refinancing fee of $16,000 to BCM based on the $1.6 million mortgage.
In February 1998, the Company refinanced the Vineyards land in the amount of
$3.4 million. The Company received net cash of $2.9 million, after paying off
existing mortgage debt of $540,000. The new mortgage bears interest at 9.0%
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AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
per annum, requires monthly payments of interest only and matures in February
2000. The Company paid a mortgage brokerage and equity refinancing fee of
$34,000 to BCM based on the new $3.4 million mortgage.
Also in February 1998, the Company financed its unencumbered Valley Ranch land
in the amount of $4.3 million. The Company received net cash of $4.1 million
after the payment of various closing costs associated with the financing. The
mortgage bears interest at 9.0% per annum, requires monthly payments of interest
only and matures in February 2000. The Company paid a mortgage brokerage and
equity refinancing fee of $43,000 to BCM based on the $4.3 million mortgage.
In November 1994, the Company and an affiliate of BCM, sold five apartment
complexes to a newly formed limited partnership in exchange for $3.2 million in
cash, a 27% limited partner interest in the partnership and two mortgage notes
receivable, secured by one of the properties sold. The Company had the option to
reacquire the properties at any time after September 1997 for their original
sales prices, after the buyer received a 12% return on its investment.
Accordingly, the Company recorded a deferred gain of $5.6 million which was
offset against the Company's investment in the partnership. In February 1998,
the Company reacquired three of the properties, one of which was security for
the notes receivable, for $7.7 million. The Company paid $4.0 million in cash
and assumed the existing mortgages totaling $3.7 million. Simultaneously the
Company refinanced the three properties for a total of $7.8 million, the Company
receiving net cash of $3.9 million after paying off the $3.7 million mortgage
debt and the payment of various closing costs associated with the financing. The
new mortgages bear interest at 9.5% per annum, require monthly principal and
interest payments of a total of $66,000 and mature in February 2008. In
conjunction with reacquiring the properties, the Company received from Carmel
Realty a refund of the $230,000 in real estate commissions the Company had paid
in 1994 on the sale of the three properties. In June 1998, the Company
reacquired the remaining two properties for $8.6 million. The Company paid $2.1
million in cash and assumed the existing mortgages totaling $6.6 million. the
mortgages bear interest at 8.73% per annum, require monthly principal and
interest payments of a total of $57,000 and mature in January 2019. The Company
also received from Carmel Realty a refund of the $323,000 real estate commission
the Company had paid in 1994 on the sale of these two properties.
In March 1998, the Company financed its unencumbered Stagliano and Dalho land in
the amount of $800,000 with the lender on the Bonneau land, described above. The
mortgage bears interest at 18.5% per annum with principal and interest due at
maturity in February 1999. The Company's JHL Connell land is also pledged as
additional collateral for this loan. The Company paid a mortgage brokerage and
equity refinancing fee of $8,000 to BCM based on the $800,000 mortgage.
Also in March 1998, the Company purchased the Desert Wells land, a 420 acre
parcel of undeveloped land in Palm Desert, California, for $12.0 million. The
Company paid $400,000 in cash, obtained new mortgage financing of $10.0 million
and obtained seller financing of the remaining $1.6 million of the purchase
price. The mortgage bears interest at 4.5% above the prime rate, currently 13%
per annum, requires monthly payments of interest only and matures in March 1999.
The seller financing bore interest at 10% per annum, required monthly payments
of interest only and matured in July 1998. The seller financing was paid off at
maturity. The Company paid a real estate brokerage commission of $720,000 to
Carmel Realty based on the $12.0 million purchase price of the property.
Further in March 1998, the Company refinanced the mortgage debt secured by its
McKinney Corners and Dowdy land in the amount of $20.7 million. The Company
received net cash of $5.9 million after paying off $2.5 million in existing
mortgage debt, the paydown of $10.2 million on the Las Colinas I term loan and
the payment of various closing costs associated with the financing. The Company
also pledged 800,000 shares of Series F Preferred Stock as additional security
for the loan. The new mortgage bears interest at 12% per annum, requires monthly
payments of interest only and matures in March 1999. The Company paid a mortgage
brokerage and equity refinancing fee of $207,000 to BCM based on the new $20.7
million mortgage.
In April 1998, the Company purchased the Yorktown land, a 325.8 acre parcel of
undeveloped land in Harris County, Texas, for $7.4 million. The Company paid
$3.0 million in cash and obtained seller financing of the remaining $4.4 million
of the purchase price. The seller financing bears interest at 8.5% per annum,
requires monthly payments of
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AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
interest only and matures in November 1998. The Company paid a real estate
brokerage commission of $223,000 to Carmel Realty based on the $7.4 million
purchase price of the property.
Also in April 1998, the Company sold a 77.7 acre tract of the Lewisville land
parcel, for $6.8 million in cash. The Company received net cash of $358,000
after paying off first and second lien mortgages totaling $5.9 million and the
payment of various closing costs associated with the sale. The Company paid a
real estate brokerage commission of $203,000 to Carmel Realty based on the $6.8
million sales price of the property. The Company recognized a gain of $2.0
million on the sale. See NOTE 10. "CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS."
Further in April 1998, the Company obtained a second lien mortgage of $2.0
million secured by its BP Las Colinas land from the limited partner in a
partnership that owns approximately 15.6% of the outstanding shares of the
Company's Common Stock. The second lien mortgage bears interest at 12% per
annum, with principal and interest due at maturity in October 1998. See NOTE 10.
"CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS."
In April 1998, the Company refinanced the mortgage debt secured by its Parkfield
land in the amount of $7.3 million. The Company received net cash of $1.2
million after paying off $5.0 million in existing mortgage debt and the payment
of various closing costs associated with the financing. The new mortgage bears
interest at 9.5% per annum, requires monthly payments of interest only and
matures in April 2000. The Company paid a mortgage brokerage and equity
refinancing fee of $73,000 to BCM based on the new $7.3 million mortgage.
In May 1998, but effective April 1, 1998, the Company completed the purchase, in
a single transaction, twenty-nine apartment complexes (collectively, the "IGI
Properties") totaling 2,441 units in Florida and Georgia for $55.8 million. The
Company acquired the properties through three newly-formed Texas limited
partnerships. The partnerships paid a total of $6.1 million in cash, assumed
$43.4 million in existing mortgage debt and issued a total of $6.6 million in
Class A limited partner units in the acquiring entities, having the Company as
the Class B Limited Partner and a newly-formed wholly-owned subsidiary of the
Company, as the Managing General Partner. The Class A limited partners are
entitled to an annual preferred return of $.08 per unit in 1998, $.09 per unit
in 1999 and $.10 per unit in 2000 and thereafter. The units are exchangeable at
anytime after April 1, 1999 into shares of the Company's Series F Preferred
Stock on the basis of ten units for one share of Preferred Stock. The mortgages
bear interest at rates ranging between 7.86% and 11.22% per annum, require
monthly principal and interest payments totaling $384,000 and mature between
July 1, 2000 and September 1, 2017. The Company paid a real estate brokerage
commission of $1.7 million to Carmel Realty based on the $55.8 million purchase
price of the property.
Also in May 1998, the Company sold a 15.4 acre tract of the Valley Ranch land
parcel, for $1.2 million in cash. The Company received net cash of $41,000 after
paying down by $1.1 million the mortgage secured by such land parcel and the
payment of various closing costs associated with the sale. The Company paid a
real estate brokerage commission of $37,000 to Carmel Realty based on the $1.2
million sales price of the property. The Company recognized a gain of $663,000
on the sale.
Further in May 1998, the Company purchased the FRWM Cummings land, a 6.4 acre
parcel of undeveloped land in Farmers Branch, Texas, for $1.2 million in cash.
The Company paid a real estate brokerage commission of $36,000 to Carmel Realty
based on the $1.2 million purchase price of the property.
In May 1998, the Company sold a 21.3 acre tract of the Parkfield land parcel,
for $1.3 million in cash. The Company received net cash of $40,000 after paying
down by $1.1 million the mortgage secured by such land parcel and the payment of
various closing costs associated with the sale. The Company paid a real estate
brokerage commission of $38,000 to Carmel Realty based on the $1.3 million sales
price of the property. The Company recognized a gain of $670,000 on the sale.
Also in May 1998, the Company refinanced the mortgage debt secured by its Scout
and Scoggins land in the amount of $10.4 million under the Las Colinas I term
loan. The Company received net cash of $6.6 million after paying off $1.4
million in mortgage debt on the Scout land and $1.5 million in mortgage debt on
the Scoggins land, a pay down of $250,000 on the Keller land mortgage, and the
payment of various closing costs associated with the financing. The
F-45
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AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
Company also pledged 250,000 shares of its Common Stock and BCM, the Company's
advisor, pledged 177,000 shares of the Company's Common Stock as additional
security on the mortgage.
In June 1998, the Company sold a 21.6 acre tract of the Chase Oaks land, for
$3.3 million in cash. The Company received net cash of $517,000 after paying
down by $2.0 million the mortgage secured by such land parcel and the payment of
various closing costs associated with the sale. The Company paid a real estate
brokerage commission of $99,000 to Carmel Realty based on the $3.3 million sales
price of the property. The Company recognized a gain of $848,000 on the sale.
Also in June 1998, the Company sold a 150.0 acre tract of the Rasor land, for
$6.8 million in cash. The Company received net cash of $1.6 million after paying
down by $5.0 million the mortgage secured by such land parcel and the payment of
various closing costs associated with the sale. The Company paid a real estate
brokerage commission of $203,000 to Carmel Realty based on the $6.8 million
sales price of the property. The Company recognized a gain of $789,000 on the
sale.
Further in June 1998, the Company sold its entire 315.2 acre Palm Desert land
parcel, for $17.2 million in cash. The Company received net cash of $9.2 million
after paying off the $7.2 million mortgage secured by such land parcel and the
payment of various closing costs associated with the sale. The Company paid a
real estate brokerage commission of $517,000 to Carmel Realty based on the $17.2
million sales price of the property. The Company recognized a gain of $3.9
million on the sale.
NOTE 5. INVESTMENT IN EQUITY INVESTEES
Real estate entities. The Company's investment in real estate entities at June
30, 1998, includes (i) equity securities of three publicly traded Real Estate
Investment Trusts (collectively the "REITs"), Continental Mortgage and Equity
Trust ("CMET"), Income Opportunity Realty Investors, Inc. ("IORI") and
Transcontinental Realty Investors, Inc. ("TCI"), (ii) units of limited partner
interest of NRLP, (iii) a general partnership interest in NRLP and NOLP, the
operating partnership of NRLP, through the Company's 96% limited partner
interest in SAMLP and (iv) interests in real estate joint venture partnerships.
BCM, the Company's advisor, serves as advisor to the REITs, and performs certain
administrative and management functions for NRLP and NOLP on behalf of SAMLP.
The Company accounts for its investment in the REITs, NRLP and the joint venture
partnerships under the equity method. The Company continues to account for its
investment in NRLP under the equity method due to the pending resignation of
SAMLP as general partner of NRLP and NOLP. See NOTE 2. "SYNTEK ASSET MANAGEMENT,
L.P." Substantially all of the Company's equity securities of the REITs and NRLP
are pledged as collateral for borrowings. See NOTE 8. "MARGIN BORROWINGS."
F-46
<PAGE> 196
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
The Company's investment in real estate entities, accounted for using the equity
method, at June 30, 1998 was as follows:
<TABLE>
<CAPTION>
Equivalent
Percentage Carrying Investee
of the Company's Value of Book Value Market Value
Ownership at Investment at at of Investment at
Investee June 30, 1998 June 30, 1998 June 30, 1998 June 30, 1998
- -------- ----------------- ------------------ ------------------ ---------------
<S> <C> <C> <C> <C>
NRLP 54.4% $ 21,263 $ * $ 68,608
CMET 40.9 16,668 36,643 27,910
IORI 29.7 3,448 7,352 5,210
TCI 31.0 8,330 26,602 19,201
-------------- -------------
49,709 $ 120,929
=============
General partner interest in
NRLP and NOLP 6,041
Other equity investees 5,921
--------------
$ 61,671
==============
</TABLE>
* At June 30, 1998, NRLP reported a deficit partners' capital. The Company's
share of NRLP's revaluation equity at December 31, 1997, was $198.9
million. Revaluation equity is defined as the difference between the
appraised value of the partnership's real estate, adjusted to reflect the
partnership's estimate of disposition costs, and the amount of the mortgage
notes payable and accrued interest encumbering such property as reported in
NRLP's Annual Report on Form 10-K for the year ended December 31, 1997.
The difference between the carrying value of the Company's investment and the
equivalent investee book value is being amortized over the life of the
properties held by each investee.
The Company's management continues to believe that the market value of each of
the REITs and NRLP undervalues their assets and the Company may, therefore,
continue to increase its ownership in these entities in 1998. Set forth below is
summarized results of operations for the Company's equity investees for the six
months ended June 30, 1998:
Equity investees owned over 50%:
<TABLE>
<S> <C>
Revenues .................................................. $ 57,764
Property operating expenses ............................... 42,024
Depreciation .............................................. 4,814
Interest expense .......................................... 17,089
--------
(Loss) from operations .................................... (6,163)
Gain on sale of real estate ............................... 36,827
--------
Net income ................................................ $ 30,664
========
</TABLE>
The Company's share of over 50% owned equity investees' operations was a loss of
$3.5 million for the six months ended June 30, 1998. The Company's share of
equity investees' gains on sale of real estate was $22.4 million for the six
months ended June 30, 1998.
F-47
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AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
Equity investees owned less than 50%:
<TABLE>
<S> <C>
Revenues .................................. $ 68,717
Equity in income of partnerships .......... 740
Property operating expenses ............... 43,315
Depreciation .............................. 10,220
Interest expense .......................... 24,402
------------
(Loss) from operations .................... (8,480)
Gain on sale of real estate ............... 7,594
------------
Net (loss) ................................ $ (886)
============
</TABLE>
The Company's share of less than 50% owned equity investees' loss from
operations was $1.4 million for the six months ended June 30, 1998. The
Company's share of equity investees' gains on sale of real estate was $3.8
million for the six months ended June 30, 1998.
The Company's cash flow from the REITs and NRLP is dependent on the ability of
each of the entities to make distributions. CMET and IORI have paid regular
quarterly distributions since the first quarter of 1993, NRLP since the fourth
quarter of 1993 and TCI since the fourth quarter of 1995. In the first six
months of 1998, the Company received distributions totaling $8.5 million from
the REITs and NRLP including $6.7 million in distributions that were accrued at
December 31, 1997.
In the first six months of 1998, the Company purchased a total of $291,000 of
equity securities of the REITs and NRLP.
In January 1992, the Company entered into a partnership agreement with an entity
affiliated with the limited partner in a partnership that owns approximately
15.6% of the Company's outstanding shares of Common Stock, to acquire 287
developed residential lots adjacent to the Company's other residential lots in
Fort Worth, Texas. The partnership agreement designates the Company as managing
general partner. The partnership agreement also provides each of the partners
with a guaranteed 10% return on their respective investments. Through December
31, 1997, 214 residential lots had been sold. In the first six months of 1998 an
additional 12 lots were sold. At June 30, 1998, 61 lots remained to be sold. In
1998, the partnership recorded a gain of $101,000 on such lot sales.
In June 1996, a newly formed limited partnership, of which the Company is a 1%
general partner, purchased 580 acres of undeveloped land in Collin County,
Texas. In January 1998, the partnership sold a 155.4 acre tract of such land
parcel for $2.9 million. The partnership received $721,000 in cash and provided
seller financing of an additional $2.2 million. Of the net sales proceeds,
$300,000 was distributed to the limited partner and $300,000 was distributed to
the Company as general partner in accordance with the partnership agreement. The
seller financing bore interest at 12% per annum, required monthly payments of
interest only and matured in July 1998. The seller financing was paid off at
maturity, with the net proceeds being distributed $1.1 million to the limited
partner and $1.1 million to the Company as general partner. The partnership
recognized a gain of $1.2 million on the sale.
In April 1996, the Company purchased a 28% general partner interest in Campbell
Center Associates, Ltd. ("Campbell Associates"), which in turn has a 56.25%
interest in Campbell Centre Joint Venture, which owned at the time 413,175
square foot office building in Dallas, Texas. The purchase price of the general
partner interest was $550,000 in cash and a $500,000 note, which bears interest
at 8% per annum, requires monthly payments of interest only and matures April
2000. In January 1997, the Company exercised its option to purchase an
additional 28% general partner interest in Campbell Associates. The purchase
price was $300,000 in cash and a $750,000 note, which bears interest at 8% per
annum, requires monthly payments of interest only and matures in April 2000. In
July 1997, the Company purchased an additional 9% general partner interest in
Campbell Associates for $868,000 in cash. In June 1998, the Company purchased
the remaining 35% general partner interest in Campbell Associates for $2.1
million.
In June 1998, Campbell Centre Joint Venture sold the office building for $32.1
million in cash. Campbell Associates, as a partner, received net cash of $13.2
million from the sales proceeds and escrowed an additional $190,000 for pending
parking lot issues. Campbell Associates recognized a gain of $8.2 million on the
sale.
F-48
<PAGE> 198
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
NOTE 6. INDUSTRY SEGMENTS
<TABLE>
<CAPTION>
Real Pizza
1998 Estate Parlor Total
------ ------ -----
<S> <C> <C> <C>
Revenues.................................. $ 26,854 $ 14,085 $ 40,939
(Loss) from operations.................... (24,572) (63) (24,635)
Identifiable assets....................... 495,139 24,867 520,006
Depreciation and amortization............. 2,480 479 2,959
Capital expenditures...................... 4,807 787 5,594
</TABLE>
NOTE 7. MARKETABLE EQUITY SECURITIES - TRADING PORTFOLIO
In the first quarter of 1994, the Company began purchasing equity securities of
entities other than those of the REITs and NRLP to diversify and increase the
liquidity of its margin accounts. In the first six months of 1998, the Company
purchased $5.0 million and sold $3.8 million of such securities. These equity
securities are considered a trading portfolio and are carried at market value.
At June 30, 1998, the Company recognized an unrealized decrease in the market
value of its trading portfolio securities of $1.4 million. Also in the first six
months of 1998, the Company realized a net gain of $206,000 from the sale of
trading portfolio securities and received $14,000 in dividends. Unrealized and
realized gains and losses on trading portfolio securities are included in other
income in the accompanying Consolidated Statements of Operations.
NOTE 8. MARGIN BORROWINGS
The Company has margin arrangements with various brokerage firms which provide
for borrowing of up to 50% of the market value of the Company's marketable
equity securities. The borrowings under such margin arrangements are secured by
equity securities of the REITs, NRLP and the Company's trading portfolio and
bear interest rates ranging from 7.0% to 11.0%. Margin borrowing totaled $56.2
million at June 30, 1998.
In January 1998, the Company obtained a $2.0 million loan secured by a pledge of
Common Stock of the Company owned by BCM, the Company's advisor, with a market
value of $4.8 million at June 30, 1998. The Company received $2.0 million in net
cash.
In August 1996, the Company consolidated its existing NRLP margin debt held by
various brokerage firms into a single margin loan. The Company has pledged
3,349,169 of its NRLP units as security for such margin loan which had a
principal balance of $24.0 million at July 31, 1998. The margin loan is due and
payable. The Company has received a commitment from a financial institution for
a new loan in a principal amount in excess of the current outstanding loan
balance. The Company has notified the existing margin lender that it intends to
pay such loan in full prior to August 31, 1998.
NOTE 9. INCOME TAXES
Financial statement income varies from taxable income principally due to the
accounting for income and losses of investees, gains and losses from asset
sales, depreciation on owned properties, amortization of discounts on notes
receivable and payable and the difference in the allowance for estimated losses.
The Company had no taxable income or provision for income taxes in the six
months ended June 30, 1998, due to operating loss carryforwards.
NOTE 10. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In May, June and July 1997, the Company obtained a total of $8.0 million in
mortgage loans from entities and trusts affiliated with the limited partner in a
partnership that owns approximately 15.6% of the Company's outstanding shares of
Common Stock. In January 1998, one of the loans in the amount of $2.0 million
was paid in full and in April 1998, a second loan in the amount of $3.0 million
was also paid in full. In April 1998, the Company obtained an additional $2.0
million mortgage loan from such entities. In July 1998, an additional $3.0
million loan was paid in full. See NOTE 4. "REAL ESTATE."
F-49
<PAGE> 199
AMERICAN REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -CONTINUED
NOTE 11. COMMITMENTS AND CONTINGENCIES
Litigation. The Company is involved in various lawsuits arising in the ordinary
course of business. In the opinion of the Company's management, the outcome of
these lawsuits will not have a material impact on the Company's financial
condition, results of operations or liquidity.
NOTE 12. SUBSEQUENT EVENTS
In July 1998, the Company purchased the Thompson II land, a 3.5 acre parcel of
undeveloped land in Dallas County, Texas, for $471,000 in cash. The Company paid
a real estate brokerage commission of $14,000 to Carmel Realty based on the
$471,000 purchase price of the property.
Also in July 1998, the Company, through a newly formed partnership of which a
wholly-owned subsidiary of the Company is the general partner and Class B
limited partner, purchased the Katrina land, a 454.8 acre parcel of undeveloped
land in Palm Desert, California, for $38.2 million. The partnership issued $23.2
million of Class A limited partnership units and obtained new mortgage financing
of $15.0 million. The mortgage bears interest at 15.5% per annum, requires
monthly payments of interest only and matures in July 1999. The Class A limited
partners are entitled to an annual preferred return of $.07 per unit in 1998,
$.08 per unit in 1999, $.09 per unit in 2000 and $.10 per unit in 2001 and
thereafter. The Class A units may be converted into shares of the Company's
Series H Preferred Stock anytime after twelve months from closing on the basis
of 100 Class A units for each share of Series H Preferred Stock. The Series H
Preferred Stock may be converted into the Company's Common Stock using a 90%
factor starting in December 2000. The Company paid a real estate brokerage
commission of $1.1 million to Carmel Realty based on the $38.2 million purchase
price of the property.
Further in July 1998, the Company purchased the HSM Cummings land, a 10.9 acre
parcel of undeveloped land in Dallas County, Texas, for $1.6 million in cash.
The Company paid a real estate brokerage commission of $48,000 to Carmel Realty
based on the $1.6 million purchase price of the property.
In July 1998, the Company purchased the Walker land, a 71.1 acre parcel of
undeveloped land in Dallas County, Texas, for $10.9 million in cash. Also in
July, the Company obtained mortgage financing of $13.3 million secured by the
Walker land. The Company received net financing proceeds of $12.8 million after
the payment of various closing costs associated with the financing. The mortgage
bears interest at 15.5% per annum, requires monthly payments of interest only
and matures July 1999. The mortgage is also secured by the HSM Cummings land.
The Company paid a real estate brokerage commission of $327,000 to Carmel Realty
based on the $10.9 million purchase price of the property.
F-50
<PAGE> 200
INDEPENDENT AUDITORS' REPORT
Board of Trustees and Shareholders
EQK Realty Investors I:
We have audited the accompanying balance sheets of EQK Realty Investors I (a
Massachusetts business trust) as of December 31, 1997 and 1996 and the related
statements of operations, shareholders' equity, and cash flows for each of the
three years in the period ended December 31, 1997. Our audits also included the
financial statement schedule appearing on page F-62. These financial statements
and the financial statement schedule are the responsibility of the Trust's
management. Our responsibility is to express an opinion on the financial
statements and financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the financial position of EQK Realty Investors I as of December 31,
1997 and 1996 and the results of its operations and its cash flows for each of
the three years in the period ended December 31, 1997 in conformity with
generally accepted accounting principles. Also, in our opinion, such financial
statement schedule, when considered in relation to the basic financial
statements, presents fairly, in all material respects, the information set forth
therein.
/s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Atlanta, Georgia
March 15, 1998
F-51
<PAGE> 201
EQK REALTY INVESTORS I
BALANCE SHEETS
<TABLE>
<CAPTION>
December 31, December 31,
1997 1996
------------ ------------
Assets: (dollars in thousands, except share data)
<S> <C> <C>
Investment in Harrisburg East Mall, at cost .............. $ 52,774 $ 52,228
Less accumulated depreciation ................... 17,233 15,338
------------ ------------
35,541 36,890
Cash and cash equivalents:
Cash Management Agreement ....................... 2,486 2,667
Other ........................................... 837 994
Deferred leasing costs (net of accumulated
amortization of $1,937 and $1,629
respectively) ............................................ 3,755 4,041
Accounts receivable and other assets (net of
allowance of $214 and $22,
respectively) ................................... 2,448 2,238
------------ ------------
TOTAL ASSETS ............................................. $ 45,067 $ 46,830
============ ============
LIABILITIES AND DEFICIT IN SHAREHOLDERS' EQUITY:
Liabilities:
Mortgage note payable ........................... $ 43,794 $ 43,794
Term loan payable to bank ....................... 1,585 1,585
Accounts payable and other liabilities
including amounts due affiliates of
$3,117 and $2,940, respectively) ....... 4,670 4,472
------------ ------------
Commitments and Contingencies (Notes 3.5 and 9) .......... 50,049 49,851
Deficit in Shareholders' Equity:
Shares of beneficial interest, without par
value: 10,055,555 shares authorized,
9,264,344 shares issued and ............ 135,875 135,875
outstanding
Accumulated deficit ............................. (140,857) (138,896)
(4,982) (3,021)
TOTAL LIABILITIES AND DEFICIT
IN SHAREHOLDERS' EQUITY ......................... $ 45,067 $ 46,830
============ ============
</TABLE>
See accompanying Notes to Financial Statements.
F-52
<PAGE> 202
EQK REALTY INVESTORS I
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
Years ended December 31,
1997 1996 1995
---------- ---------- ----------
(dollars in thousands,
except per share amount)
<S> <C> <C> <C>
Revenues from rental operations ...................... $ 6,158 $ 6,174 $ 15,761
Operating Expenses, net of tenant reimbursements
(including property management
fees earned by an affiliate of $307, $297 and
$291, respectively) ............................. 1,083 887 5,403
Depreciation and amortization ........................ 2,532 2,391 4,848
Other income ......................................... -- (268) (400)
Write-down of investment in real estate .............. -- -- 3,200
---------- ---------- ----------
Income from rental operations ........................ 2,543 3,164 2,710
Interest expense ..................................... 4,046 3,896 8,302
Other expenses, net of interest income
(including portfolio management fees
earned by an affiliate of $242,
$250 and $403, respectively) .................... 458 756 983
---------- ---------- ----------
Loss before gain on sale of real estate .............. (1,961) (1,488) (6,575)
Gain on sale of real estate .......................... -- -- 229
---------- ---------- ----------
Net loss ............................................. $ (1,961) $ (1,488) $ (6,346)
========== ========== ==========
Loss per share:
Loss before gain on sale of real estate ......... $ (0.21) $ (0.16) $ (0.71)
Gain on sale of real estate ..................... -- -- $ 0.03
Net loss ............................................. $ (0.21) $ (0.16) $ (0.68)
========== ========== ==========
</TABLE>
See accompanying Notes to Financial Statements.
F-53
<PAGE> 203
EQK REALTY INVESTORS I
STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
Shares of
Beneficial Accumulated
Interest Deficit Total
---------- ---------- ----------
(dollars in thousands, except per share data)
<S> <C> <C> <C>
Balance, December 31, 1994 ..................... $ 135,875 ($ 131,062) $ 4,813
Net Loss ....................................... -- (6,346) (6,346)
---------- ---------- ----------
Balance, December 31, 1995 ..................... 135,875 (137,408) (1,533)
---------- ---------- ----------
Net loss ....................................... -- (1,488) (1,488)
Balance, December 31, 1996 ..................... 135,875 (138,896) (3,021)
---------- ---------- ----------
Net Loss ....................................... -- (1,961) (1,961)
BALANCE, DECEMBER 31, 1997 ..................... $ 135,875 ($ 140,857) ($ 4,982)
========== ========== ==========
</TABLE>
See accompanying Notes to Financial Statements.
F-54
<PAGE> 204
EQK REALTY INVESTORS I
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For The Years Ended December 31,
--------------------------------------------
1997 1996 1995
------------ ------------ ------------
(dollars in thousands)
Cash Flows From Operating Activities
<S> <C> <C> <C>
Net loss .......................................... (1,961) ($ 1,488) ($ 6,346)
Adjustments to reconcile net loss to net
cash provided by operating activities:
Write-down of investment in real estate .... -- -- 3,200
Depreciation and amoritzation .............. 2,532 2,391 4,848
Amortization of debt discount .............. -- -- 460
Imputed and deferred interest .............. -- 302 1,494
Gain on sale of real estate ................ -- -- (229)
Changes in assets and liabilities:
Decrease in accounts
payable and other liabilities ........... 198 140 (1,661)
(Increase) decrease in accounts receivable
and other assets ........................ (561) (128) (643)
Net cash provided by operating activities ......... 208 1,217 1,123
------------ ------------ ------------
Cash Flows from investing activities:
Proceeds from sale of real estate ............. -- -- 38,507
Additions to real estate investments .......... (546) (195) (5,362)
Net cash provided by (used in)
investing activities .......................... (546) (195) 33,145
------------ ------------ ------------
Cash flows from financing activities:
Scheduled repayments of debt .................. -- (333) (7)
Repayments of debt due to sale of property .... -- -- (35,990)
------------ ------------ ------------
Net cash used in financing activities ............. -- (333) (35,997)
Increase (decrease) in cash and cash equivalents .. (338) 689 (1,729)
Cash and cash equivalents
beginning of year ............................. 3,661 2,972 4,701
------------ ------------ ------------
Cash and cash equivalents
end of year ................................... $ 3,323 $ 3,661 $ 2,972
============ ============ ============
</TABLE>
See accompanying Notes to Financial Statements.
F-55
<PAGE> 205
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS - CONTINUED
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 24, 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 provisions of the Internal Revenue Code.
At December 31, 1997, the Trust's remaining real estate investment is
Harrisburg East Mall, a regional shopping center in Harrisburg, Pennsylvania. On
December 8, 1995, the Trust sold its remaining interest in Castleton Park
("Castleton"), an office park in Indianapolis, Indiana (see Note 4). The Trust
sold office buildings comprising an office complex located in Atlanta, Georgia,
formerly known as Peachtree-Dunwoody Pavilion or "Peachtree" during 1992 and
1993. In 1991, the Trust completed the sale of two office buildings at
Castleton.
The Declaration of Trust provides that the actual disposition of the
remaining property, Harrisburg East Mall, may occur at any time prior to March
1999. The Declaration of Trust further provides that this date may be extended
by up to two years upon the recommendation of the Trustees and the affirmative
vote of a majority of its shareholders. Based on the finite-life provisions of
the Declaration of Trust, Management has been pursuing the disposition of its
remaining real estate investment or an alternative strategic transaction.
Effective December 23, 1997, the Trust entered into an Agreement and
Plan of Merger, pursuant to which an affiliate of American Realty Trust, Inc., a
Georgia corporation ("ART"), is to merge with and into the Trust (the "Merger"),
with the Trust being the surviving entity. The Merger contemplates, among other
things, a 20-year extension of the life of the Trust. If the Merger is
completed, Basic Capital Management, Inc. ("BCM"), an affiliate of ART, will
serve as advisor to the Trust.
As consideration for the Merger, each holder of record of the Trust's
Shares, other than ART and its affiliates, ERE Yarmouth Portfolio Management,
Inc., and Greenspring Fund, Incorporated ("Greenspring"), will be entitled to
retain the Shares such holder holds and to receive for each Share owned by such
holder a combination of ART Preferred Shares and cash. As its consideration for
the Merger, ART will be entitled to receive newly-issued Shares of the Trust.
Immediately prior to the Merger, ART will purchase from ERE Yarmouth Portfolio
Management, Inc. and Greenspring all of their Shares pursuant to the terms of
separate stock purchase agreements (collectively, the "Block Purchase"). Upon
consummation of the Block Purchase and the Merger, ART would own approximately
49% of the issued and outstanding Shares of the Trust.
The Merger is contingent upon, among other things, ART's registration
statement relating to the ART Preferred Shares to be issued pursuant to the
Block Purchase and the Merger being declared effective by the Securities
Exchange Commission, and the affirmative vote of the holders of 75% of the
outstanding Shares.
The Trust, its trustees, and its Advisor have been named as defendants
in a purported class action complaint filed in Massachusetts state court,
seeking to enjoin the Merger. The complaint also seeks other relief including
unspecified damages. The Trust believes the action to be without merit and
intends to vigorously defend the action.
Management anticipates that the Merger will close in mid-1998. However,
no assurances can be given that the Merger will close during the anticipated
time frame or at all. In the event the Merger is not completed, Management
intends to pursue an immediate disposition of Harrisburg East Mall.
As discussed in Note 3, Management is pursuing an extension of the
maturity dates of the Trust's mortgage debt from June 15, 1998 to at least the
end of the year. Based on preliminary discussions with the lenders, Management
believes that it will be able to secure such extensions. However, the inability
of the Trust to extend such maturity dates or secure alternative financing could
have a negative impact on the Trust's ability to complete the Merger. In such an
event, Management will pursue an immediate disposition of Harrisburg East Mall.
F-56
<PAGE> 206
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS - CONTINUED
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.
Depreciation of real estate investments is provided on a straight-line
basis over the estimated useful lives of the related assets, ranging generally
from 5 to 40 years. Tenant improvements are amortized over their estimated
useful lives, which do not exceed the terms of the respective tenant leases.
Intangible assets are amortized on a straight-line basis over their estimated
useful lives.
VALUATION OF REAL ESTATE:
Real estate investments are recorded at cost less accumulated
depreciation. In accordance with SFAS 121, the Trust considers, on a quarterly
basis, whether events or changes in circumstances indicate that the carrying
amount of its real estate investments may not be recoverable based on estimates
of future undiscounted cash flows without interest expense. In the event such
projected undiscounted future cash flows are less than the depreciated cost of
the property, the real estate investment is written down to its estimated fair
market value. Real estate investments to be disposed of are recorded at the
lower of net book value or estimated fair market value less cost to sell at the
date management commits to a plan of disposal.
DEFERRED LEASING COSTS:
Costs incurred in connection with the execution of a new lease
including leasing commissions, costs associated with the acquisition or buyout
of existing leases, and legal fees are deferred and amortized over the term of
the new lease. Included in deferred leasing costs is the unamortized portion of
a 1990 payment of $5,500,000 made to an anchor tenant at Harrisburg East Mall in
exchange for the tenant relinquishing space that was subsequently converted into
leasable area for mall shops.
REVENUE RECOGNITION:
Minimum rents are recognized on a straight-line basis over the term of
the related leases. Percentage rents are recognized on an accrual basis.
NET LOSS PER SHARE:
The net loss per share calculation is based on the weighted average
number of shares outstanding during the year, which was 9,264,344 for all years
presented.
Share warrants issued in connection with the Trust's 1992 debt
restructuring (see Note 3) are considered common share equivalents. However, the
warrants have not been included in the net loss per share calculation since the
effect on such calculation would be 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.
F-57
<PAGE> 207
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS - CONTINUED
STATEMENTS OF CASH FLOWS:
Cash equivalents include short-term investments with an original
maturity of three months or less. Included in the statements of cash flows are
cash payments for interest of $4,022,000, $3,886,000, and $6,703,000 in 1997,
1996 and 1995, respectively. Such amounts are net of interest costs of $69,000
capitalized in 1995.
FAIR VALUES OF FINANCIAL INSTRUMENTS:
The Trust values its financial instruments as required by SFAS 107,
"Disclosures 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 amounts in the prior year have been reclassified from
previously issued financial statements to conform with the 1997 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
On December 15, 1992, the Trust completed a restructuring of its
existing mortgage debt through the issuance of a "Mortgage Note" and a "Term
Loan", both due December 15, 1995, with original principal balances of
$75,689,000 and $2,859,000, respectively. The Mortgage Note bore interest at an
average rate of 9.79% per annum during its three year term, although interest
was payable at 8.54% per annum. The Term Loan bore interest at 8.33% and was
subject to the same pay rate of 8.54%. The differences between the accrual and
pay rates of interest under both debt instruments were reflected in the
principal balances due at maturity. Absent prepayments due to property
dispositions, the scheduled amount of principal due under the Mortgage Note and
the Term Loan on the original maturities date would have been $78,928,000 and
$2,839,000, respectively. However, on December 8, 1995, the Trust completed the
sale of Castleton Park (see Note 4) and used the net proceeds of $35,990,000
(reflecting reductions of $2,517,000 for customary prorations) to prepay such
debt obligations in the amounts of $34,738,000 and $1,252,000, respectively.
These debt instruments were subsequently extended for a period of one year to
December 15, 1996, and again for a period of eighteen months to June 15, 1998 as
described below.
Pursuant to its Mortgage Note agreement, the Trust issued the lender
warrants to purchase 367,868 of its shares of beneficial interest at $.0001 per
share. As of December 31, 1997, all such warrants remain outstanding and
exercisable.
As part of the 1992 restructuring, the Trust entered into a Cash
Management Agreement with the mortgage lender and assigned all lease and rent
receipts to the lender as additional collateral. Pursuant to this agreement, a
third-party escrow agent has been appointed to receive all rental payments from
tenants and to fund monthly operating expenses in accordance with a budget
approved by the lender. As of December 31, 1997, a balance of $634,000 was held
by the third-party escrow agent in accordance with the Cash Management
Agreement. The 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 with any excess operating cash flow,
are limited to capital expenditures approved by the lender. As of December 31,
1997 the balance of the capital reserve account was $1,852,000.
F-58
<PAGE> 208
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS - CONTINUED
EXTENSIONS OF DEBT
The remaining principal balances outstanding under the Mortgage Note
and the Term Loan at December 15, 1996, $43,794,000 and $1,585,000,
respectively, were extended for eighteen months through June 15, 1998, under
terms substantially comparable from those previously in effect, except as
described below. Previously, principal balances of $44,125,000 and $1,587,000,
respectively, were extended from their original maturity date of December 15,
1995 to December 15, 1996. The Mortgage Note remains collateralized by a first
mortgage lien on Harrisburg East Mall, an assignment of leases and rents, and
certain cash balances. The Term Loan remains collateralized by a subordinate
lien on Harrisburg East Mall. In addition, the Mortgage Note contains provisions
restricting the payment of dividends.
The Mortgage Note agreement has been amended to provide for monthly
payments of interest only accruing at the rate of 8.88% per annum ($324,000 per
month). Previously, in connection with the December 15, 1995 extension, the
Mortgage Note agreement was amended to provide for monthly payments of principal
(assuming a 30 year amortization) and interest (at an accrual rate equal to the
former pay rate of 8.54%) in the aggregate amount of $341,000. The Term Loan
agreement was amended to provide for an accrual rate that resets 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 defined). The accrual rate in
effect as of March 16, 1998 was 8.25%.
In consideration for the extension of the maturity date of the Mortgage
Note agreement through June 15, 1998, the Trust paid an upfront 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 the maturity date of June 15, 1998, or the
date at which all or any part of the original principal amount is prepaid. As of
December 31, 1997 and December 31, 1996, the $272,900 back end fee, along with
accrued interest, is included in accounts payable and other liabilities on the
balance sheet. In consideration for the extension of the maturity date of the
Term Loan agreement through June 15, 1998, the Trust incurred an extension fee
of $23,800. The majority of this fee was paid in 1997. As of December 31, 1997,
$200 is included in accounts payable and other liabilities on the balance sheet
representing the remaining amount due.
In anticipation of the Mortgage Note and Term Loan maturities,
Management is pursuing extensions of these facilities through at least the end
of the year. Based on preliminary discussions with the respective lenders,
Management believes that it will be able to secure such extensions. However, the
inability of the Trust to extend such maturity dates or secure alternative
financing could have a negative impact on the Trust's ability to complete the
Merger. In such an event, Management will pursue an immediate disposition of
Harrisburg East Mall.
NOTE 4: SALES OF REAL ESTATE
During 1995, Management recorded a write-down of its investment in
Castleton of $3,200,000 in order to reflect its then current estimate of net
realizable value. In December 1995, the Trust completed the sale of its
remaining forty-four buildings at Castleton. The Trust received net sales
proceeds of $38,507,000 before reduction for customary prorations of $2,517,000,
and recognized a gain on sale of $229,000. The net proceeds were used to repay a
portion of outstanding mortgage indebtedness (see Note 3).
NOTE 5: LEASING ARRANGEMENTS
The Trust leases shopping center space generally under noncancelable
operating leases, some of which contain renewal options. The shopping center
leases generally provide for minimum rentals, plus percentage rentals based upon
the retail stores' sales volume. Percentage rentals amounted to $122,000,
$179,000, and $270,000 for the years ended December 31, 1997, 1996, and 1995,
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 $2,299,000, $2,313,000, and $2,355,000 for the years ended December
31, 1997, 1996, and 1995, respectively.
F-59
<PAGE> 209
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Future minimum rentals under existing, non-cancelable leases at
December 31, 1997 are as follows:
<TABLE>
<CAPTION>
Years ending December 31, Amount
<S> <C>
1998 4,797,000
1999 4,487,000
2000 4,236,000
2001 3,548,000
2002 3,032,000
Thereafter 10,795,000
-----------
$30,895,000
===========
</TABLE>
The Limited Inc. operates seven stores at Harrisburg. Revenues from
these tenants represented approximately 13% of Harrisburg East Mall's total
revenues in 1997. 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, 1997.
Due to the temporary closure of two of the department stores operating
at Harrisburg East Mall, certain tenants exercised the right, as provided for
under cotenancy provisions set forth in their respective leases, to pay
percentage rent in lieu of fixed minimum rents which amounted to $228,000,
$663,000, and $702,000, for the years ended December 31, 1997, 1996, and 1995,
respectively. 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 Harrisburg East Mall.
NOTE 6: INVESTMENTS IN REAL ESTATE
The Trust's investments in real estate at December 31, 1997 and 1996
consisted of the following:
<TABLE>
<CAPTION>
1997 1996
--------------- -------------
<S> <C> <C>
Land $ 4,700,000 $ 4,700,000
Buildings and improvements 45,356,000 45,033,000
Tenant improvements 2,555,000 2,332,000
Personal property 163,000 163,000
--------------- -------------
$ 52,774,000 $ 52,228,000
=============== =============
</TABLE>
Additions to real estate investments in 1997 and 1996 consisted of
minor building and tenant improvements to Harrisburg East Mall.
NOTE 7: ADVISORY AND MANAGEMENT AGREEMENTS
ADVISORY AGREEMENT
The Trust has entered into an agreement with ERE Yarmouth Portfolio
Management, Inc. ("EYPM", formerly known as Equitable Realty Portfolio
Management, Inc.), to act as its "Advisor". The Advisor is a wholly owned
subsidiary of ERE Yarmouth, Inc., formerly known as Equitable Real Estate
Investment Management, Inc. The Advisor makes recommendations to the Trust
concerning investments, administration and day-to-day operations.
F-60
<PAGE> 210
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Under the terms of the advisory agreement, as amended in December 1989,
the Advisor receives a management fee that is based upon the average daily per
share price of the Trust's shares plus the average daily balance of outstanding
mortgage indebtedness. Such fee is calculated using a factor of 42.5 basis
points (0.425%) and generally has been payable monthly without subordination.
Commencing with the December 1995 extension of debt and continuing with the
December 1996 debt extension (see Note 3), the Mortgage Note lender has
requested, and the Advisor has agreed to, a partial deferral of payment of its
fee. Whereas the fee continues to be computed as described above, payments to
the Advisor are limited to $37,500 per quarter. Accrued but unpaid amounts will
be eligible for payment upon the repayment of the Mortgage Note. For the years
ended December 31, 1997, 1996 and 1995, portfolio management fees were $242,000,
$250,000, and $403,000, respectively. The balance of deferred advisory fees at
December 31, 1997 was $217,000.
As of December 31, 1989, portfolio management fees of $5,440,000
payable to the Advisor were deferred in accordance with subordination provisions
contained in the original advisory agreement. Pursuant to the amended advisory
agreement, the Advisor forgave one-half, or $2,720,000, of the deferred balance.
The remaining deferred fees are to be paid upon the disposition of the Trust's
properties. As of December 31, 1997, the liability for deferred management fees
was $2,720,000. If the Merger described in Note 1 is completed, the Advisor will
receive ART Preferred Shares from ART in lieu of such fees.
Upon the sale of all or any portion of any real estate investment of
the Trust, the Advisor will receive a disposition fee equal to 2% of the gross
sale price (including outstanding indebtedness taken subject to or assumed by
the buyer and any purchase money indebtedness taken back by the Trust). The
disposition fee will be reduced by the amount of any brokerage commissions and
legal expenses incurred by the Trust in connection with such sales. During 1995,
disposition fees earned by the Advisor were $788,000.
In connection with the December 15, 1996 extension of debt (see Note
3), the Advisor will receive a refinancing fee of $50,000, which will be paid
upon the retirement of the debt.
PROPERTY MANAGEMENT AGREEMENTS
The Trust has also entered into agreements for the on-site management
of each of its properties. Harrisburg East Mall is managed by ERE Yarmouth
Retail, Inc. (the "Property Manager", formerly Compass Retail, Inc.). Castleton
Park was managed by an unaffiliated third-party management company up until the
time of its sale.
Management fees paid to the Property Manager are generally based upon a
percentage of rents and certain other charges. The Trust believes that such fees
are comparable to those charged by unaffiliated third-party management companies
providing comparable services. For the years ended December 31, 1997, 1996 and
1995, management fees paid to the Property Manager were $307,000, $297,000, and
$291,000, respectively.
In connection with the redevelopment of Harrisburg East Mall's
outparcel building, the Property Manager received a $150,000 development fee in
1995. The Trust renovated the outparcel building during 1995 to accommodate the
relocation of Toys `R' Us, with a final project cost of approximately
$3,440,000.
SHARE OWNERSHIP
In connection with a debt restructuring in December 1992, the Trust
issued 1,675,000 previously repurchased shares to its Advisor for $6,700,000, or
$4.00 per share. In total, the Advisor owns 1,685,556 shares, or 18.2% of the
total shares outstanding. The Advisor earned a $500,000 fee in connection with
this refinancing, which was paid in 1993-1994.
NOTE 8: RELATED PARTY TRANSACTIONS
As a condition of the Term Loan issuance in December 1992 (Note 3), an
escrow deposit of $300,000 was required as additional collateral. The Trust
borrowed this amount from its Advisor. In connection with the December 15, 1995
extension of this debt, the escrow deposit was released and the Advisor was
repaid in 1996.
F-61
<PAGE> 211
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS - CONTINUED
NOTE 9: COMMITMENTS AND CONTINGENCIES
The Trust, its trustees, and its Advisor have been named as defendants
in a purported class action complaint filed in Massachusetts state court,
seeking to enjoin the Merger. The complaint also seeks other relief including
unspecified damages. The Trust believes the action to be without merit and
intends to vigorously defend the action.
NOTE 10: SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
The following is a summary of selected quarterly financial data for the
years ended December 31, 1997 and 1996:
<TABLE>
<CAPTION>
(in thousands, except per share amounts)
Quarter Ended
------------------------------------------------------------
1997 March 31 June 30 Sept. 30 Dec. 31
<S> <C> <C> <C> <C>
Revenues from rental operations $ 1,413 $ 1,557 $ 1,545 $ 1,643
Income from rental operations 628 727 625 563
Net loss (478) (375) (565) (543)
Net loss per share (.05) (.04) (.06) (.06)
</TABLE>
<TABLE>
<CAPTION>
(in thousands, except per share amounts)
Quarter Ended
------------------------------------------------------------
1996 March 31 June 30 Sept. 30 Dec. 31
<S> <C> <C> <C> <C>
Revenues from rental operations $ 1,714 $ 1,412 $ 1,576 $ 1,472
Income from rental operations 968 695 868 633
Net loss (193) (475) (261) (559)
Net loss per share (.02) (.05) (.03) (.06)
</TABLE>
During the first and second quarters of 1996, the Trust was notified by
the Fulton County (Georgia) Tax Commissioner's office of a reduction in the
assessed value of the real estate underlying Peachtree Dunwoody Pavilion for tax
years prior to the Trust's sale of this property. Such reduction in assessed
value resulted in a refund of previously paid real estate taxes in the amount of
$268,000, which the Trust recognized as other income.
F-62
<PAGE> 212
FINANCIAL STATEMENT SCHEDULE
DECEMBER 31, 1997
(IN THOUSANDS)
SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION
<TABLE>
<CAPTION>
Cost Capitalized Gross Amount
Initial Cost Subsequent to at which Carried
Acquisition at Close of Period
Bldg. & Bldg. &
Description Encumbrance Land Improv. Improvements Land Improvements Total
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Harrisburg East Mall .. $ 45,379(1) $ 4,700(2) $ 31,287(2) $ 16,787 $ 4,700(2) $ 48,074(2) $ 52,774
Harrisburg, PA
---------- ---------- ---------- ---------- ---------- ---------- ----------
$ 45,379 $ 4,700 $ 31,287 $ 16,787 $ 4,700 $ 48,074 $ 52,774
========== ========== ========== ========== ========== ========== ==========
<CAPTION>
Life on
which
Depreciation
in Latest
Accum. Date of Date Income Stmt.
Description Deprec. Construction Acquired is Computed
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Harrisburg East Mall .. $ 17,233 1969(4) 3/13/85 30 yrs
Harrisburg, PA
---------- ---------- ---------- ----------
$ 17,233
==========
</TABLE>
(1) Encumbrance is a mortgage note payable constituting first lien on the
Harrisburg real estate and a term loan payable to a bank constituting
subordinated lien on the property.
(2) Initial cost is net of imputed interest of $5,280 at date of acquisition.
(3) The aggregate tax basis of the Trust's property is $53 million as of
December 31, 1997.
(4) Renovation of Harrisburg was completed in 1993.
<TABLE>
<CAPTION>
RECONCILIATION OF GROSS CARRYING AMOUNT OF REAL ESTATE: RECONCILATION OF ACCUMULATED DEPRECIATION:
<S> <C> <C> <C>
Balance, December 31, 1994 $ 109,525 Balance, December 31, 1994 $ 31,793
Improvements and Additions 2,823 Depreciation expense 4,016
Deductions -- Sale of Castleton Deductions -- Sale of Castleton
Commercial Park (60,315) Commercial Park (22,363)
--------- --------
Balance, December 31, 1995 52,033 Balance, December 31, 1995 13,446
Improvements and Additions 195 Depreciation Expense 1,892
--------- --------
Balance, December 31, 1996 52,228 Balance, December 31, 1996 15,338
Improvements and Additions 546 Depreciation Expense 1,895
--------- --------
Balance, December 31, 1997 $ 52,774 Balance, December 31, 1997 $ 17,233
--------- --------
</TABLE>
F-63
<PAGE> 213
EQK REALTY INVESTORS I
BALANCE SHEETS
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
------------ ------------
(Unaudited)
Assets: (dollars in thousands,
except share data)
<S> <C> <C>
Investment in Harrisburg East Mall, at cost ............ $ -- $ 58,466
Less accumulated depreciation ................. -- 19,170
------------ ------------
-- 39,296
Real estate held for sale (Notes 1 and 2) .............. 39,019 --
Cash and cash equivalents:
Cash Management Agreement ..................... 2,126 2,486
Other ......................................... 875 837
Accounts receivable and other assets (net of
allowance of $213 and $214 respectively) ............... 1,910 2,448
------------ ------------
TOTAL ASSETS ........................................... $ 43,930 $ 45,067
============ ============
LIABILITIES AND DEFICIT IN SHAREHOLDERS' EQUITY:
Liabilities:
Mortgage note payable ......................... $ 43,794 $ 43,794
Term loan payable to bank ..................... 1,582 1,585
Accounts payable and other liabilities
(including amounts due affiliates of
$3,105 and $3,117, respectively) .............. 4,016 4,670
------------ ------------
Commitments and Contingencies (Note 1 and 5) ........... 49,392 50,049
Deficit in Shareholders' Equity:
Shares of beneficial interest, without par
value: 10,055,555 shares authorized;
Shares issued and outstanding: 9,632,212 as
of June 30, 1998 and 9,264,344 as of
December 31, 1997 ...................................... 135,875 135,875
Accumulated deficit ........................... (141,337) (140,857)
------------ ------------
(5,462) (4,982)
------------ ------------
TOTAL LIABILITIES AND DEFICIT
IN SHAREHOLDERS' EQUITY ....................... $ 43,930 $ 45,067
============ ============
</TABLE>
See accompanying Notes to Financial Statements
F-64
<PAGE> 214
EQK REALTY INVESTORS I
STATEMENT OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Six months ended
June 30,
--------------------------------
(in thousands, except per
share amounts)
1998 1997
-------------- --------------
<S> <C> <C>
Revenues from rental operations ................................................. $ 2,890 $ 2,970
Operating Expenses, net of tenant reimbursements (including property management
fees earned by an affiliate of $146 and $148,
respectively) .......................................................... 439 359
Depreciation and amortization ................................................... 723 1,256
-------------- --------------
Income from rental operations ................................................... 1,728 1,355
Interest expense ................................................................ 2,023 2,022
Other expenses, net of interest income
(including portfolio management fees
earned by an affiliate of
$118 and $124, respectively) ........................................... 185 186
-------------- --------------
Net loss ........................................................................ ($ 480) ($ 853)
============== ==============
Net loss per share: ............................................................. ($ 0.05) ($ 0.09)
============== ==============
</TABLE>
See accompanying Notes to Financial Statements.
F-65
<PAGE> 215
EQK REALTY INVESTORS I
STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Six months ended June 30,
(in thousands)
1998 1997
------------ ------------
<S> <C> <C>
Cash Flows From Operating Activities
Net loss .................................................. $ (480) $ (853)
Adjustments to reconcile net loss to net
cash provided by (used in) operating activities:
Depreciation and amoritzation ...................... 723 1,256
Changes in assets and liabilities:
Decrease in accounts
payable and other liabilities ................... (654) (331)
(Increase) decrease in accounts receivable
and other assets ................................ 362 (198)
Net cash provided by (used in) operating activities (49) .. 270
Cash flows from investing activities:
Additions to real estate investments ................... (270) (336)
Net cash used in investing activities ..................... (270) (336)
Cash Flows from financing activities:
Scheduled repayments of debt ..................... (3) --
Net cash used in financing activities ..................... (3) --
------------ ------------
Decrease in cash and cash equivalents ..................... (322) (66)
Cash and Cash Equivalents
Beginning of Period .............................. 3,323 3,661
------------ ------------
Cash and Cash Equivalents
End of Period .................................... $ 3,001 $ 3,595
============ ============
Supplemental disclosure of cash flow information:
Interest paid .................................... $ 2,023 $ 2,009
============ ============
</TABLE>
See accompanying Notes to Financial Statements.
F-66
<PAGE> 216
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1: DESCRIPTION OF BUSINESS
EQK Realty Investors I ("EQK I" or "the Trust"), a Massachusetts business trust,
was formed pursuant to an Amended and Restated Declaration of Trust dated
February 24, 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 provisions of the Internal Revenue Code.
At June 30, 1998, the Trust's remaining real estate investment is Harrisburg
East Mall ("the Mall"), a regional shopping center located in Harrisburg,
Pennsylvania. During 1995, the Trust sold its remaining interest in Castleton
Park ("Castleton") an office park located in Indianapolis, Indiana. During 1993,
the Trust sold its two remaining office buildings within its office complex
located in Atlanta, Georgia, formerly known as Peachtree-Dunwoody Pavilion
("Peachtree"). Prior to 1993, the Trust sold two office buildings at Castleton
(1991) and five office buildings at Peachtree (1992).
The Declaration of Trust currently provides that the actual disposition of the
remaining property, Harrisburg East Mall, may occur at any time prior to March
1999. The Declaration of Trust further provides that this date may be extended
by up to two years upon the recommendation of the Trustees and the affirmative
vote of a majority of its shareholders. Based on the finite life provisions of
the Declaration of Trust, Management has been pursuing the disposition of its
remaining real estate investment and/or an alternative strategic transaction.
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") is to merge with and into the Trust (the "Merger"),
with the Trust being the surviving entity. The Merger contemplates, among other
things, a 20-year extension of the life of the Trust.
Delays in completing the Merger as originally proposed required certain
revisions to the Merger Agreement, the most significant of which are the right
of Management to dispose of Harrisburg East Mall and to distribute the 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. Management commenced marketing and sales activities during the
second quarter of 1998 including the retention of an outside broker, and
anticipates that a sale of the Mall will be completed prior to December 15,
1998, which is the date the current forbearance agreement with the primary
lender of the Trust's mortgage indebtedness terminates.
Upon completion of the sale of the Mall, and subject to shareholder approval,
the Merger would be effected according to the terms of an Amended and Restated
Agreement and Plan of Merger (the "Revised Merger Agreement"). Pursuant to the
Revised Merger Agreement, immediately prior to the closing of the Merger, ART is
expected to convey one of its properties to EQK I. ART will provide 100% of the
financing for this property contribution via a non-recourse note. The Revised
Merger Agreement is in the final stages of negotiation. The description of the
Revised Merger Agreement herein reflects the terms as currently contemplated.
ART has agreed to permit EQK I to continue to solicit, or respond to, offers
from third parties for the post-Mall sale entity. In the event EQK I accepts an
offer from a party other than ART and elects not to proceed with the Merger, EQK
I will pay ART a "break-up" fee of $200,000 plus its share of transaction
expenses.
The Revised Merger Agreement may be terminated by EQK I if any of the following
conditions exist: (i) the Merger has not been accomplished by December 15, 1998;
(ii) EQK I secures a more favorable offer from another party subject to the
payment of a break-up fee; or (iii) if the Revised Merger Agreement in any way
impairs or delays the sale of Harrisburg East Mall, or is likely to result in a
material reduction in proceeds.
Proceeds from the sale of Harrisburg East Mall and, if applicable, the
completion of the Merger, will be distributed to the shareholders of EQK I once
the Trust's liabilities have been settled (including the retirement of its
mortgage note and term loan) and related transaction costs have been paid.
F-67
<PAGE> 217
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)- CONTINUED
The Merger is contingent upon, among other things, ART's registration statement
relating to ART Preferred Shares to be issued pursuant to the Merger Agreement,
as revised, being declared effective by the Securities Exchange Commission, and
the affirmative vote of the holders of 75% of the outstanding shares of the
Trust.
The Trust, its trustees, and its Advisor have been named as defendants in a
purported class action complaint filed in Massachusetts state court, which seeks
to enjoin the Merger. The complaint also seeks other relief including
unspecified damages. The Trust believes the action to be without merit.
On April 23, 1998, the New York Stock Exchange ("NYSE") announced that trading
in the common stock of EQK I would be suspended prior to the opening of the NYSE
on May 4, 1998, as the Trust did not meet the NYSE's continued listing criteria.
Following suspension, application was made by the NYSE to the Securities and
Exchange Commission to delist the issue. Subsequent to the delisting, a market
for the EQK I shares has been created on the OTC Bulletin Board System.
NOTE 2: BASIS OF PRESENTATION
The financial statements have been prepared by the Trust, without audit,
pursuant to the rules and regulations of the Securities and Exchange Commission.
Certain information and footnote disclosures normally included in the financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations, although
the Trust believes that the disclosures are adequate to make the information
presented not misleading. The financial statements should be read in conjunction
with the audited financial statements and related notes thereto included in the
Annual Report on Form 10-K for the year ended December 31, 1997.
Certain amounts in the prior year have been reclassified from previously issued
financial statements to conform with current presentation.
As discussed in Note 1, Management intends to dispose of Harrisburg East Mall
and as such, its investment in real estate is presented on the balance sheet as
held for sale. 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 investment ceased beginning April 1, 1998. Amortization expense reflected on
the statements of operations for the three months ended June 30, 1998 represents
amortization of refinancing costs. As of June 30, 1998, these costs have been
fully amortized.
On March 19, 1998, The Prudential Insurance Company of America ("Prudential")
exercised its warrants for 367,868 shares of the Trust's shares of beneficial
interest at $.0001 per share. Such shares were issued to Prudential on May 7,
1998 thus bringing the total number of issued and outstanding shares of the
Trust to 9,632,212. The net loss per share, as reflected on the statements of
operations, has been calculated using the weighted average of the number of
shares outstanding during the periods presented.
In the opinion of the Trust, all other adjustments are normal recurring
adjustments necessary to present fairly its financial position as of June 30,
1998, its results of operations for the six months ended June 30, 1998 and 1997
and its cash flows for the six months ended June 30, 1998 and 1997.
NOTE 3: CASH MANAGEMENT AGREEMENT
In connection with the Trust's mortgage agreement (as amended and extended), the
Trust entered into a Cash Management Agreement with the mortgage lender and
assigned all lease and rent receipts to the lender as additional collateral.
Pursuant to this agreement, a third-party escrow agent has been appointed to
receive all rental payments from tenants and to fund monthly operating expenses
in accordance with a budget approved by the lender. As of June 30, 1998, a
balance of $691,000 was held by the third-party escrow agent in accordance with
the Cash Management Agreement. The agreement also provides for the establishment
of a capital reserve account, which is maintained by the escrow agent.
Disbursements from this account, which are funded each month with any excess
operating cash flow, are
F-68
<PAGE> 218
EQK REALTY INVESTORS I
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)- CONTINUED
limited to capital expenditures approved by the lender. As of June 30, 1998 the
balance of the capital reserve account was $1,435,000.
NOTE 4: ADVISORY AND MANAGEMENT AGREEMENTS
The Trust has entered into an agreement with Lend Lease Portfolio Management,
Inc. (formerly known as ERE Yarmouth Portfolio Management, Inc.) to act as its
"Advisor". The Advisor is a wholly owned subsidiary of Lend Lease Real Estate
Investments, Inc., formerly known as ERE Yarmouth, Inc. The Advisor makes
recommendations to the Trust concerning investments, administration, and
day-to-day operations.
Under the terms of the advisory agreement, as amended in December 1989, the
Advisor receives a management fee that is based upon the average daily per share
price of the Trust's shares plus the average daily balance of outstanding
mortgage indebtedness. Such fee is calculated using a factor of 42.5 basis
points (0.425%) and generally has been payable monthly without subordination.
Commencing with the December 1995 debt extension and continuing with the
December 1996 debt extension, the Mortgage Note lender has requested, and the
Advisor has agreed to, a partial deferral of payment of its fee. Whereas the fee
will continue to be computed as described, payments to the Advisor will be
limited to $37,500 per quarter. Deferred fees, which amounted to $260,000 as of
June 30, 1998, will be eligible for payment upon the repayment of the Mortgage
Note. Portfolio management fees amounted to $118,000 and $124,000 for the six
months ended June 30, 1998 and 1997, respectively.
As part of the 1989 amendment to the advisory agreement, the Advisor forgave
one-half, or $2,720,000, of the total amount of fees previously deferred
pursuant to subordination provisions of the original advisory agreement. The
remaining deferred fees are to be paid upon the disposition of Harrisburg East
Mall.
The Trust has also entered into an agreement with ERE Yarmouth Retail, Inc. (the
"Property Manager", formerly Compass Retail, Inc.), for the on-site management
of Harrisburg East Mall. Management fees paid to the Property Manager are
generally based upon a percentage of rents and certain other charges. Such fees
and commissions are comparable to those charged by unaffiliated third-party
management companies providing comparable services. For the six months ended
June 30, 1998 and 1997, management fee expense attributable to services rendered
by ERE Yarmouth Retail, Inc. were $146,000 and $148,000, respectively.
NOTE 5: DEBT MATURITIES
The Trust's debt instruments (aggregate principal outstanding of $45,376,000)
had scheduled maturity dates of June 15, 1998. While the mortgage note holder
has refused to grant an extension of this maturity date, it has agreed to a
forbearance arrangement wherein it will not exercise remedies for non-repayment
of the outstanding principal due through December 15, 1998. The holder of the
Trust's term loan has agreed to an extension of the maturity date, also through
December 15, 1998. The forbearance and extension arrangements are 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.
On June 15, 1998 the Trust paid deferred loan fees plus interest to the mortgage
note holder in the amount of $309,200 and deferred loan fees to the term loan
holder in the amount of $88,100.
As discussed in Note 1, the Trust has commenced efforts to sell the Mall.
Management anticipates that a sale of the Mall will be completed prior to
December 15, 1998, which is the date the current forbearance agreement with the
primary lender of the Trust's mortgage indebtedness terminates. Proceeds from
the sale of the Mall and, if applicable, the completion of the Merger, will be
distributed to the shareholders of EQK I once the Trust's liabilities have been
settled (including the retirement of its mortgage note and term loan) and
related transaction costs have been paid.
F-69
<PAGE> 219
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Thirteen of ART's Articles of Incorporation provides that, to the
fullest extent permitted by Georgia law, as the same exists or may be hereafter
be amended, no director of ART shall be personally liable to ART or the
shareholders of ART for monetary damages for breach of the duty of care as a
director, provided that Article Thirteen does not limit or eliminate liability
for (i) a breach of duty involving an appropriation of a business opportunity of
ART; (ii) an act or omission not in good faith or involving intentional
misconduct or a knowing violation of law; or (iii) a transaction from which the
director derived an improper personal benefit. In addition, a director's
liability will not be limited as to any payment of a dividend or approval of a
stock repurchase that is illegal under Section 14-2-640 of the Georgia Business
Corporation Code.
Article Thirteen applies only to claims against a director arising out of
his or her role as a director and not, if he or she is also an officer, his or
her role as an officer or in any other capacity. In addition, Article Thirteen
does not reduce the exposure of directors to liability under Federal securities
laws.
The Bylaws of ART require ART to indemnify any person who, by reason of the
fact that he is or was a director of ART, is made or is threatened to be made a
party to an action, including an action brought by ART or its shareholders. The
Bylaws provide that ART will indemnify such person against reasonably incurred
expenses (including, but not limited to, attorneys' fees and disbursements,
court costs, and expert witness fees), and against any judgments, fines and
amounts paid in settlement, provided that ART shall not indemnify such person
under circumstances in which the Georgia Business Corporation Code, as in effect
from time to time, would not allow indemnification.
The Bylaws of ART give the ART Board the power to cause ART to provide to
officers, employees, and agents of ART all or any part of the right to
indemnification afforded to directors of ART as set forth in the Bylaws, subject
to the conditions, limitations and obligations therein, upon a resolution to
that effect identifying such officer, employee or agent and specifying the
particular rights provided.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of ART pursuant
to the foregoing provisions, ART has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
3.1 -- Articles of Incorporation (1)
3.2 -- Amendment to Articles of Incorporation dated September 15, 1989
(1)
3.3 -- Articles of Amendment setting forth Certificate of Designation
of Series A Cumulative Participating Preferred Stock dated as
of April 11, 1990 (1)
3.4 -- Articles of Amendment dated December 10, 1990 to Articles of
Incorporation (1)
3.5 -- Amended By-laws of American Realty Trust, Inc., dated December
11, 1991 (1)
3.6 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations on Restrictions thereof of Special Stock of
American Realty Trust, Inc. (Series B 10% Cumulative Preferred
Stock) dated as of April 4, 1996 (1)
3.7 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations on Restrictions thereof of Special Stock of
American Realty Trust, Inc. (Series C 10% Cumulative Preferred
Stock) dated as of June 4, 1996 (1)
II-1
<PAGE> 220
3.8 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series D Cumulative
Preferred Stock of American Realty Trust, Inc. dated as of
August 2, 1996 (1)
3.9 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series E Cumulative
Convertible Preferred Stock of American Realty Trust, Inc.
dated as of December 3, 1996 (1)
3.10 -- Articles of Amendment of the Articles of Incorporation
deleting Certificate of Designation of Series A Cumulative
Participating Preferred Stock, dated as of February 28, 1997
(2)
3.11 -- Amended and Restated Articles of Amendment of the Articles of
Incorporation of American Realty Trust, Inc. setting forth the
Certificate of Designations, Preferences and Relative
Participating or Optional or Other Special Rights, and
Qualifications, Limitations or Restrictions thereof of Series
F Cumulative Convertible Preferred Stock of American Realty
Trust, Inc. dated as of July __, 1998 (9)
3.12 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series G Cumulative
Convertible Preferred Stock of American Realty Trust, Inc.
dated as of September 18, 1997 (5)
3.13 -- Articles of Amendment to the Articles of Incorporation of
American Realty Trust, Inc. Increasing the number of
authorized shares of Common Stock to 100,000,000 shares, dated
March 26, 1998 (6)
3.14 -- Articles of Amendment to the Articles of Incorporation of
American Realty Trust, Inc. reducing the number of authorized
shares of Series B Preferred Stock to zero and eliminating
such designation, dated May 27, 1998 (5)
3.15 -- Articles of Amendment to the Articles of Incorporation of
American Realty Trust, Inc. increasing the number of
authorized shares of Series G Cumulative Convertible Preferred
Stock from 11,000 to 12,000, dated May 27, 1998 (5)
3.16 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series H Cumulative
Convertible Preferred Stock of American Realty Trust, Inc.
dated as of June 24, 1998 (10)
4.1 -- Instruments defining the rights of security holders (included
in Exhibit 3.11) (9)
5.1 -- Opinion of Holt Ney Zatcoff & Wasserman, LLP as to the
legality of the Preferred Stock being offered (1)
8.1 -- Opinion of Andrews & Kurth L.L.P. regarding tax matters (5)
11.1 -- Statement re: computation of per share earnings (4)
12.1 -- Statement re: computation of ratios (4)
15.1 -- Letter re: unaudited interim financial information (4)
21.1 -- Subsidiaries of the registrant (1)
II-2
<PAGE> 221
23.1 -- Consent of BDO Seidman, LLP (American Realty Trust, Inc.) (10)
23.2 -- Consent of BDO Seidman, LLP (Continental Mortgage and Equity
Trust) (10)
23.3 -- Consent of BDO Seidman, LLP (Income Opportunity Realty
Investors, Inc.) (10)
23.4 -- Consent of BDO Seidman, LLP (Transcontinental Realty Investors,
Inc.) (10)
23.5 -- Consent of BDO Seidman, LLP (National Realty, L.P.) (10)
23.6 -- Consent of Holt Ney Zatcoff & Wasserman, LLP (5)
23.7 -- Consent of Deloitte & Touche LLP (EQK Realty Investors I) (10)
24.1 -- Power of Attorney (5)
29.1 -- Financial Data Schedule (7)
99.1 -- Amended and Restated Agreement and Plan of Merger By and Among
American Realty Trust, Inc., ART Newco LLC, Basic Capital
Management, Inc., EQK Realty Investors I, and Lend Lease
Portfolio Management, Inc. (10)
99.2 -- Amended and Restated Stock Purchase Agreement by and between
Lend Lease Portfolio Management,Inc. and American Realty Trust,
Inc. (10)
99.3 -- Stock Purchase Agreement by and between Summit Ventures, L.P.
and American Realty Trust, Inc. (10)
99.4 -- Stock Purchase Agreement by and between Sutter Opportunity
Fund, LLC and American Realty Trust, Inc. (10)
99.5 -- Second Amended and Restated Declaration of Trust of EQK
(included as Exhibit "A" to Exhibit 99.1) (10)
99.6 -- Advisory Agreement by and between EQK Realty Investors I and
Basic Capital Management, Inc. (included as Exhibit "B" to
Exhibit 99.1) (10)
99.7 -- Form of Proxy Card (5)
- ----------
(1) Incorporated by reference to the Registrant's Registration Statement No.
333-21583 filed with the Commission on February 11, 1997.
(2) Incorporated by reference to Amendment No. 1. To the Registrant's
Registration Statement No. 333-21583 filed with the Commission on April 29,
1997.
(3) Incorporated by reference to Post-Effective Amendment No. 1 to the
Registrant's Registration Statement No. 333-21583 filed with the Commission
on September 8, 1997.
(4) Not applicable.
(5) Filed as an Exhibit to the Registrant's Registration Statement on Form S-4
(No. 333-43777), filed with the Commission on January 6, 1998 and
incorporated by reference therein.
(6) Filed as an Exhibit to the Reqistrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1998, as filed with the Commission on
May 14, 1998 and incorporated by reference therein.
(7) Filed as an Exhibit to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1998, as filed with the Commission on
August 14, 1998 and incorporated by reference therein.
(8) Filed as an Exhibit to the Registrant's Current Report on Form 8-K dated
May 1, 1998, as filed with the Commission on June 25, 1998 and incorporated
by reference herein.
(9) To be filed by amendment.
(10) Filed herewith.
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Items 4, 10(b), 11 or 13 of Form S-4 within one business day of such request,
and to send the incorporated documents by first class mail or other equally
prompt means. This includes any information contained in any documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
(b) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
ART pursuant to Item 20, above, or otherwise, ART has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by ART of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or
II-3
<PAGE> 222
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, ART will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-4
<PAGE> 223
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on the 31st
day of August, 1998.
AMERICAN REALTY TRUST, INC.
By: /s/ KARL L. BLAHA
---------------------------------------
Karl L. Blaha
President (Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
------------------------------- President (Principal Executive August 31, 1998
Karl L. Blaha Officer) and Director
Director August 31, 1998
*
-------------------------------
Roy E. Bode
* Director August 31, 1998
-------------------------------
Oscar W. Cashwell
* Director August 31, 1998
-------------------------------
Al Gonzalez
* Director August 31, 1998
-------------------------------
Cliff Harris
* Executive Vice President and August 31, 1998
------------------------------- Chief Financial Officer
Thomas A. Holland (Principal Financial and
Accounting Officer)
*By: /s/ KARL L. BLAHA
-------------------------------
Karl L. Blaha
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 224
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
3.1 -- Articles of Incorporation (1)
3.2 -- Amendment to Articles of Incorporation dated September 15, 1989
(1)
3.3 -- Articles of Amendment setting forth Certificate of Designation
of Series A Cumulative Participating Preferred Stock dated as
of April 11, 1990 (1)
3.4 -- Articles of Amendment dated December 10, 1990 to Articles of
Incorporation (1)
3.5 -- Amended By-laws of American Realty Trust, Inc., dated December
11, 1991 (1)
3.6 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations on Restrictions thereof of Special Stock of
American Realty Trust, Inc. (Series B 10% Cumulative Preferred
Stock) dated as of April 4, 1996 (1)
3.7 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations on Restrictions thereof of Special Stock of
American Realty Trust, Inc. (Series C 10% Cumulative Preferred
Stock) dated as of June 4, 1996 (1)
</TABLE>
<PAGE> 225
<TABLE>
<S> <C>
3.8 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series D Cumulative
Preferred Stock of American Realty Trust, Inc. dated as of
August 2, 1996 (1)
3.9 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series E Cumulative
Convertible Preferred Stock of American Realty Trust, Inc.
dated as of December 3, 1996 (1)
3.10 -- Articles of Amendment of the Articles of Incorporation
deleting Certificate of Designation of Series A Cumulative
Participating Preferred Stock, dated as of February 28, 1997
(2)
3.11 -- Amended and Restated Articles of Amendment of the Articles of
Incorporation of American Realty Trust, Inc. setting forth the
Certificate of Designations, Preferences and Relative
Participating or Optional or Other Special Rights, and
Qualifications, Limitations or Restrictions thereof of Series
F Cumulative Convertible Preferred Stock of American Realty
Trust, Inc. dated as of July __, 1998 (9)
3.12 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series G Cumulative
Convertible Preferred Stock of American Realty Trust, Inc.
dated as of September 18, 1997 (5)
3.13 -- Articles of Amendment to the Articles of Incorporation of
American Realty Trust, Inc. Increasing the number of
authorized shares of Common Stock to 100,000,000 shares, dated
March 26, 1998 (6)
3.14 -- Articles of Amendment to the Articles of Incorporation of
American Realty Trust, Inc. reducing the number of authorized
shares of Series B Preferred Stock to zero and eliminating
such designation, dated May 27, 1998 (5)
3.15 -- Articles of Amendment to the Articles of Incorporation of
American Realty Trust, Inc. increasing the number of
authorized shares of Series G Cumulative Convertible Preferred
Stock from 11,000 to 12,000, dated May 27, 1998 (5)
3.16 -- Articles of Amendment of the Articles of Incorporation of
American Realty Trust, Inc. setting forth the Certificate of
Designations, Preferences and Relative Participating or
Optional or Other Special Rights, and Qualifications,
Limitations or Restrictions thereof of Series H Cumulative
Convertible Preferred Stock of American Realty Trust, Inc.
dated as of June 24, 1998 (10)
4.1 -- Instruments defining the rights of security holders (included
in Exhibit 3.11) (9)
5.1 -- Opinion of Holt Ney Zatcoff & Wasserman, LLP as to the
legality of the Preferred Stock being offered (1)
8.1 -- Opinion of Andrews & Kurth L.L.P. regarding tax matters (5)
11.1 -- Statement re: computation of per share earnings (4)
12.1 -- Statement re: computation of ratios (4)
15.1 -- Letter re: unaudited interim financial information (4)
21.1 -- Subsidiaries of the registrant (1)
</TABLE>
<PAGE> 226
<TABLE>
<S> <C>
23.1 -- Consent of BDO Seidman, LLP (American Realty Trust, Inc.) (10)
23.2 -- Consent of BDO Seidman, LLP (Continental Mortgage and Equity
Trust) (10)
23.3 -- Consent of BDO Seidman, LLP (Income Opportunity Realty
Investors, Inc.) (10)
23.4 -- Consent of BDO Seidman, LLP (Transcontinental Realty Investors,
Inc.) (10)
23.5 -- Consent of BDO Seidman, LLP (National Realty, L.P.) (10)
23.6 -- Consent of Holt Ney Zatcoff & Wasserman, LLP (5)
23.7 -- Consent of Deloitte & Touche LLP (EQK Realty Investors I) (10)
24.1 -- Power of Attorney (5)
29.1 -- Financial Data Schedule (7)
99.1 -- Amended and Restated Agreement and Plan of Merger By and Among
American Realty Trust, Inc., ART Newco LLC, Basic Capital
Management, Inc., EQK Realty Investors I, and Lend Lease
Portfolio Management, Inc. (10)
99.2 -- Amended and Restated Stock Purchase Agreement by and between
Lend Lease Portfolio Management,Inc. and American Realty Trust,
Inc. (10)
99.3 -- Stock Purchase Agreement by and between Summit Ventures, L.P.
and American Realty Trust, Inc. (10)
99.4 -- Stock Purchase Agreement by and between Sutter Opportunity
Fund, LLC and American Realty Trust, Inc. (10)
99.5 -- Second Amended and Restated Declaration of Trust of EQK
(included as Exhibit "A" to Exhibit 99.1) (10)
99.6 -- Advisory Agreement by and between EQK Realty Investors I and
Basic Capital Management, Inc. (included as Exhibit "B" to
Exhibit 99.1) (10)
99.7 -- Form of Proxy Card (5)
</TABLE>
- ----------
(1) Incorporated by reference to the Registrant's Registration Statement No.
333-21583 filed with the Commission on February 11, 1997.
(2) Incorporated by reference to Amendment No. 1. To the Registrant's
Registration Statement No. 333-21583 filed with the Commission on April 29,
1997.
(3) Incorporated by reference to Post-Effective Amendment No. 1 to the
Registrant's Registration Statement No. 333-21583 filed with the Commission
on September 8, 1997.
(4) Not applicable.
(5) Filed as an Exhibit to the Registrant's Registration Statement on Form S-4
(No. 333-43777), filed with the Commission on January 6, 1998 and
incorporated by reference therein.
(6) Filed as an Exhibit to the Reqistrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1998, as filed with the Commission on
May 14, 1998 and incorporated by reference therein.
(7) Filed as an Exhibit to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1998, as filed with the Commission on
August 14, 1998 and incorporated by reference therein.
(8) Filed as an Exhibit to the Registrant's Current Report on Form 8-K dated
May 1, 1998, as filed with the Commission on June 25, 1998 and incorporated
by reference herein.
(9) To be filed by amendment.
(10) Filed herewith.
<PAGE> 1
EXHIBIT 3.16
ARTICLES OF AMENDMENT OF THE ARTICLES OF INCORPORATION OF
AMERICAN REALTY TRUST, INC.
setting forth the
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING
OR OPTIONAL OR OTHER SPECIAL RIGHTS, AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS THEREOF
of
SERIES H CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
AMERICAN REALTY TRUST, INC.
(Pursuant to Section 14-2-602(d) of the
Georgia Business Corporation Code)
--------------------------
American Realty Trust, Inc., a corporation organized and existing under
the Georgia Business Corporation Code (hereinafter called the "Corporation"),
hereby certifies:
THAT, pursuant to the authority conferred upon the board of directors
(the "Board of Directors") by the articles of incorporation, as amended
("Articles of Incorporation") of the Corporation, and pursuant to Section
14-2-602(d) of the Georgia Business Corporation Code (which Section provides
that no shareholder action is required in order to effect these articles of
amendment), the Board of Directors, at a meeting held on May 29, 1998, duly
adopted certain recitals and resolutions providing for the designations,
preferences and relative participating, optional or other special rights and
qualifications, limitations or other restrictions thereof, of a series of
special stock of the Corporation, specifically the Series H Cumulative
Convertible Preferred Stock, which recitals and resolutions are as follows:
WHEREAS, Article Five of the Articles of Incorporation authorizes the
Corporation to issue not more than 100,000,000 shares of common voting stock,
$0.01 par value per share (the "Common Stock"), and 20,000,000 shares of a
special class of stock, $2.00 par value per share (the "Special Stock"), which
Special Stock may be issued from time to time in one or more series and shall be
designated as the Board of Directors may determine to have such voting powers,
preferences, limitations and relative rights with respect to the shares of each
series of the class of Special Stock of the Corporation as expressly provided in
a resolution or resolutions providing for the issuance of such series adopted by
the Board of Directors which is vested with the authority in respect thereof;
<PAGE> 2
WHEREAS, 16,681 shares of such Special Stock have been previously
designated as the Series C 10% Cumulative Preferred Stock prior to the date
hereof, all of which have been issued and are outstanding;
WHEREAS, 91,000 shares of such Special Stock have been previously
designated as the Series D Cumulative Preferred Stock prior to the date hereof,
none of which has been issued or is outstanding;
WHEREAS, 80,000 shares of such Special Stock have been previously
designated as the Series E Cumulative Convertible Preferred Stock prior to the
date hereof, none of which has been issued or is outstanding;
WHEREAS, 7,500,000 shares of such Special Stock have been previously
designated as the Series F Cumulative Convertible Preferred Stock prior to the
date hereof, 2,800,000 shares of which have been issued and are outstanding;
WHEREAS, 12,000 shares of such Special Stock have been previously
designated as the Series G Cumulative Convertible Preferred Stock prior to the
date hereof, 1,000 of which has been issued or is outstanding; and
WHEREAS, the Board of Directors now desires to further amend the
Articles of Incorporation to designate an additional series of the Special
Stock.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority granted
to the Board of Directors by Article Five of the Articles of Incorporation, the
Board of Directors hereby further amends the Articles of Incorporation to
provide for the issuance of a single series of Special Stock consisting of the
number of shares in such series as set forth below and, subject to the
provisions of Article Five of the Articles of Incorporation, hereby fixes and
determines with respect to such series the following designations, preferences
and relative participating, optional or other special rights, if any, and
qualifications, limitations and restrictions thereof:
1. Designation and Amount. The shares of such series shall be designated
as "Series H Cumulative Convertible Preferred Stock" (the "Series H
Preferred Stock") and each share of the Series H Preferred Stock shall
have a par value of $2.00 per share and a preference on liquidation as
specified in Section 6 below. The number of shares constituting the
Series H Preferred Stock shall be 231,750. Such number of shares may be
increased or decreased by the Board of Directors by filing articles of
amendment as provided in the Georgia Business Corporation Code;
provided, however, that no increase shall be allowed without the
express written consent of all of the holders of shares of Series H
Preferred Stock then issued and outstanding, and that no decrease shall
reduce the number of shares of Series H Preferred Stock to a number
less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options,
rights or warrants.
-2-
<PAGE> 3
2. Dividends and Distributions.
(A) The holders of shares of Series H Preferred Stock shall be
entitled to receive, when, as, and if declared by the Board of
Directors and to the extent permitted under the Georgia
Business Corporation Code, out of funds legally available for
the purpose and in preference to and with priority over
dividends upon all Junior Securities, quarterly cumulative
dividends payable in arrears in cash on the first day of each
calendar quarter, unless such day is a Saturday, Sunday or
holiday, in which case such dividends shall be payable on the
next succeeding business day (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series H
Preferred Stock, in an amount per share (rounded to the next
highest cent) equal to (i) 7% per annum during the period from
issuance to June 30, 1999; (ii) 8% per annum during the period
from July 1, 1999 to June 30, 2000; (iii) 9% per annum during
the period from July 1, 2000 to June 30, 2001; and (iv) 10%
per annum from July 1, 2001 and thereafter of the Adjusted
Liquidation Value, as determined immediately prior to the
beginning of such calendar quarter assuming each year consists
of 360 days and each quarter consists of 90 days. The term
"Adjusted Liquidation Value" shall mean Liquidation Value (as
defined in Section 6) plus all accrued and unpaid dividends
thereon through the applicable date.
(B) Dividends shall commence accruing cumulatively on outstanding
shares of the Series H Preferred Stock from the date of
issuance of such shares to and including the date on which the
Redemption Price (as defined in Section 9(A) below) of such
shares is paid, whether or not such dividends have been
declared and whether or not there are profits, surplus or
other funds of the Corporation legally available for the
payment of such dividends. For purposes of this Section 2, the
date on which the Corporation has issued any share of Series H
Preferred Stock is its date of issuance, regardless of the
number of times a transfer of such share is made on the stock
records maintained by or for the Corporation and regardless of
the number of certificates that may be issued to evidence such
share (whether by reason of transfer of such share or for any
other reason). Dividends paid on the shares of Series H
Preferred Stock in an amount less than the total amount of
dividends at the time accrued and payable on such shares shall
be allocated among the holders of such shares in proportion to
their respective Unpaid Accrual Amounts, where for this
purpose the "Unpaid Accrual Amount" of a holder of shares of
Series H Preferred Stock at any time equals the total of
accrued unpaid dividends on all such shares held by such
holder. The Board of Directors may fix a record date for the
determination of holders of shares of Series H Preferred Stock
entitled to receive payment of a dividend or distribution
declared thereon other than a quarterly dividend paid on the
Quarterly Dividend Payment Date immediately after such
dividend accrued; which record date shall be not more than 50
days prior to the date fixed for the payment thereof.
-3-
<PAGE> 4
(C) So long as any shares of the Series H Preferred Stock are
outstanding, the Corporation will not make, directly or
indirectly, any distribution (as such term is defined in the
Georgia Business Corporation Code) in respect of Junior
Securities unless on the date specified for measuring
distributions in Section 14-2-640(e) of the Georgia Business
Corporation Code (i) all accrued dividends on the Series H
Preferred Stock for all past quarterly dividend periods have
been paid in full and the full amount of accrued dividends for
the then current quarterly dividend period has been paid or
declared and a sum sufficient for the payment thereof set
apart and (ii) after giving effect to such distribution (a)
the Corporation would not be rendered unable to pay its debts
as they become due in the usual course of business and (b) the
Corporation's total assets would not be less than the sum of
its total liabilities plus the amount that would be needed, if
the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon
dissolution of the holders of the Series H Preferred Stock as
provided in these Articles of Amendment. Dividends shall not
be paid (in full or in part) or declared and set apart for
payment (in full or in part) on any series of Special Stock
(including the Series H Preferred Stock) for any dividend
period unless all dividends, in the case dividends are being
paid in full on the Series H Preferred Stock, or a ratable
portion of all dividends (i.e., so that the amount paid on
each share of each series of Special Stock as a percentage of
total accrued and unpaid dividends for all periods with
respect to each such share is equal), in the case dividends
are not being paid in full on the Series H Preferred Stock,
have been or are, contemporaneously, paid and declared and set
apart for payment on all outstanding series of Special Stock
(including the Series H Preferred Stock) entitled thereto for
each dividend period terminating on the same or earlier date.
If at any time the Corporation pays less than the total amount
of dividends then accrued with respect to the Series H
Preferred Stock, such payment will be distributed ratably
among the then holders of Series H Preferred Stock so that an
equal amount is paid with respect to each outstanding share.
3. Conversion Rights.
(A) The Series H Preferred Stock may be converted in such amounts
and at such times as are set forth below, at the option of the
holders thereof, in accordance with subsection (D) below at
the Conversion Price (as defined in subsection (B) below) into
fully paid and nonassessable Common Stock of the Corporation
by dividing (i) the Adjusted Liquidation Value for such shares
of Series H Preferred Stock as of the date of conversion by
(ii) the Conversion Price; provided, however, that as to any
shares of Series H Preferred Stock which shall have been
called for redemption pursuant to Section 9, the right of
conversion shall terminate upon receipt by the holder of the
notice of redemption from the Corporation; and provided
further, however, that on the earlier of (a) the commencement
of any liquidation, dissolution or winding up of the
Corporation by the filing with the Secretary of State of the
State of Georgia or with a federal bankruptcy court, (b) the
adoption by the shareholders of the Corporation of any
resolution authorizing the commencement thereof, (c) the
dividends on the Series H Preferred Stock have not been
declared in the amount of the dividend preference as of the
first business day of any calendar quarter, or, if
-4-
<PAGE> 5
declared, have not been paid by the fifth business day of such
quarter, or (d) the Corporation is acquired in a merger or
similar transaction, the right of conversion shall be
immediately accelerated for all shares of Series H Preferred
Stock issued and then outstanding, irrespective of the
conversion schedule set forth below. Notwithstanding anything
to the contrary herein provided, the Corporation may elect to
redeem the shares of Series H Preferred Stock sought to be
converted, pursuant to Section 9 hereunder, instead of issuing
shares of Common Stock in replacement thereof in accordance
with the provisions of Section 3(D) below. Unless otherwise
provided, the term "Business Day" shall mean any day other
than a Saturday, a Sunday, or a day on which banking
institutions in Dallas, Texas are authorized or obligated by
law or executive order to remain closed. The Series H
Preferred Stock may be converted in the following amounts, at
any time on or after the respective dates (each, a "Conversion
Date"): (i) 25,000 shares on or after December 31, 2000; (ii)
25,000 shares on or after June 30, 2002; (iii) 25,000 shares
on or after June 30, 2003; (iv) 25,000 shares on or after
December 31, 2005; and (v) all remaining outstanding shares on
or after December 31, 2006. The number of shares of Series H
Preferred Stock each holder thereof shall be entitled to
convert on or after each Conversion Date shall be determined
by (a) dividing the total number of shares of Series H
Preferred Stock held by such holder on such Conversion Date by
the total number of shares of Series H Preferred Stock
outstanding on such Conversion Date, and (b) multiplying such
amount obtained in (a) by the number of shares of Series H
Preferred Stock convertible on or after such Conversion Date
pursuant to the schedule set forth above less the total number
of shares of Series H Preferred Stock previously converted
pursuant to this paragraph 3(A).
(B) For purposes of this Section 3, the term "Conversion Price"
shall be and mean the amount obtained (rounded upward to the
next highest cent) by multiplying (i) 0.9 by (ii) the simple
average of the daily closing price of the Common Stock for the
twenty Business Days ending on the last Business Day of the
calender week immediately preceding the date of conversion on
the New York Stock Exchange or, if the shares of Common Stock
are not then being traded on the New York Stock Exchange, then
on the principal stock exchange (including, without limitation
NASDAQ NMS or NASDAQ Small Cap) on which such Common Stock is
then listed or admitted to trading as determined by the
Corporation (the "Principal Stock Exchange") or, if the Common
Stock is not then listed or admitted to trading on a Principal
Stock Exchange, the average of the last reported closing bid
and asked prices on such days in the over-the-counter market
or, if no such prices are available, the fair market value per
share of the Common Stock, as determined by the Board of
Directors of the Corporation in its sole discretion. The
Conversion Price shall not be subject to any adjustment as a
result of the issuance of any additional shares of Common
Stock by the Corporation for any purpose, except for stock
splits (whether accomplished by stock dividends or otherwise)
or reverse stock splits occurring during the 20 Business Days
referenced in the calculation of the Conversion Price. For
purposes of calculating the Conversion Price, the term
"Business Day" shall mean a day on which the exchange looked
to for purposes of determining the Conversion Price is open
for
-5-
<PAGE> 6
business or, if no such exchange, the term "Business Day"
shall have the meaning given such term in Section 3(A) above.
(C) Upon any conversion, fractional shares of Common Stock shall
not be issued but any fractions shall be adjusted by the
delivery of one additional share of Common Stock in lieu of
any cash. Any accrued but unpaid dividends shall be
convertible into shares of Common Stock as provided for in
this Section. The Corporation shall pay all issue taxes, if
any, incurred in respect to the issuance of Common Stock on
conversion, provided, however, that the Corporation shall not
be required to pay any transfer or other taxes incurred by
reason of the issuance of such Common Stock in names other
than those in which the Series H Preferred Stock surrendered
for conversion may stand.
(D) Any conversion of Series H Preferred Stock into Common Stock
shall be made by the surrender to the Corporation, at the
office of the Corporation set forth in Section 12 hereof or at
the office of the transfer agent for such shares, of the
certificate or certificates representing the Series H
Preferred Stock to be converted, duly endorsed or assigned
(unless such endorsement or assignment be waived by the
Corporation), together with a written request for conversion.
The Corporation shall either (i) issue, as of the date of
receipt by the Corporation of such surrender, shares of Common
Stock calculated as provided above and evidenced by a stock
certificate delivered to the holder as soon as practicable
after the date of such surrender or (ii) within two Business
Days (unless otherwise provided, "Business Day" herein shall
mean any day other than a Saturday, a Sunday or a day on which
banking institutions in Dallas, Texas are authorized or
obligated by law or executive order to remain closed) after
the date of such surrender advise the holder of the Series H
Preferred Stock that the Corporation is exercising its option
to redeem the Series H Preferred Stock pursuant to Section 9,
in which case the Corporation shall have thirty (30) days from
the date of such surrender to pay to the holder cash in an
amount equal to the Redemption Price for each share of Series
H Preferred Stock so redeemed. The date of surrender of any
Series H Preferred Stock shall be the date of receipt by the
Corporation or its agent of such surrendered shares of Series
H Preferred Stock.
(E) A number of authorized shares of Common Stock sufficient to
provide for the conversion of the Series H Preferred Stock
outstanding upon the basis hereinbefore provided shall at all
times be reserved for such conversion. If the Corporation
shall propose to issue any securities or to make any change in
its capital structure which would change the number of shares
of Common Stock into which each share of Series H Preferred
Stock shall be convertible as herein provided, the Corporation
shall at the same time also make proper provision so that
thereafter there shall be a sufficient number of shares of
Common Stock authorized and reserved for conversion of the
outstanding Series H Preferred Stock on the new basis.
-6-
<PAGE> 7
(F) The term "Common Stock" shall mean stock of the class
designated as Common Stock of the Corporation on the date the
Series H Preferred Stock is created or stock of any class or
classes resulting from any reclassification or
reclassifications thereof, the right of which to share in
distributions of both earnings and assets is without
limitation in the Articles of Incorporation of the Corporation
as to any fixed amount or percentage and which are not subject
to redemption; provided, that if at any time there shall be
more than one such resulting class, the shares of each such
class then issuable on conversion of the Series H Preferred
Stock shall be substantially in the proportion which the total
number of shares of stock of each such class resulting from
all such reclassifications bears to the total number of shares
of stock of all such classes resulting from all such
reclassifications.
(G) In case the Corporation shall propose at any time before all
shares of the Series H Preferred Stock have been redeemed by
or converted into Common Stock of the Corporation:
(i) to pay any dividend on the Common Stock
outstanding payable in Common Stock or to make any other
distribution, other than cash dividends to the holders of the
Common Stock outstanding; or
(ii) to offer for subscription to the holders of the
Common Stock outstanding any additional shares of any class or
any other rights or option; or
(iii) to effect any re-classification or
recapitalization of the Common Stock outstanding involving a
change in the Common Stock, other than a subdivision or
combination of the Common Stock outstanding; or
(iv) to merge or consolidate with or into any other
corporation (unless the Corporation is the surviving entity
and holders of Common Stock continue to hold such Common Stock
without modification and without receipt of any additional
consideration), or to sell, lease, or convey all or
substantially all its property or business, or to liquidate,
dissolve or wind up;
then, in each such case, the Corporation shall mail to the holders of
record of each of the shares of Series H Preferred Stock at their last
known addresses as shown by the Corporation's records a statement,
signed by an officer of the Corporation, with respect to the proposed
action, such statement to be so mailed at least thirty (30) days prior
to the date of the taking of such action or the record date for holders
of the Common Stock for the purposes thereof, whichever is earlier. If
such statement relates to any proposed action referred to in clauses
(iii) or (iv) of this subsection (G), it shall set forth such facts
with respect thereto as shall reasonably be necessary to inform the
holders of the Series H Preferred Stock as to the effect of such action
upon the conversion rights of such holders.
-7-
<PAGE> 8
4. Voting Rights and Powers. The holders of shares of Series H Preferred
Stock shall have only the following voting rights:
(A) Except as may otherwise be specifically required by law under
Section 14-2-1004 of the Georgia Business Corporation Code or
otherwise provided herein, the holders of the shares of Series
H Preferred Stock shall not have the right to vote such stock,
directly or indirectly, at any meeting of the shareholders of
the Corporation, and such shares of stock shall not be counted
in determining the total number of outstanding shares to
constitute a quorum at any meeting of shareholders;
(B) In the event that, under the circumstances, the holders of the
Series H Preferred Stock are required by law to vote upon any
matter, the approval of such series shall be deemed to have
been obtained only upon the affirmative vote of the holders of
a majority of the shares of the Series H Preferred Stock then
outstanding;
(C) Except as set forth herein, or as otherwise provided by the
Articles of Incorporation or by law, holders of the Series H
Preferred Stock shall have no special voting rights and their
consent shall not be required for the taking of any corporate
action.
5. Reacquired Shares. Any shares of Series H Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever or
surrendered for conversion hereunder shall no longer be deemed to be
outstanding and all rights with respect to such shares of stock,
including the right, if any, to receive notices and to vote, shall
forthwith cease except, in the case of stock surrendered for conversion
hereunder, rights of the holders thereof to receive Common Stock in
exchange therefor. All shares of Series H Preferred Stock obtained by
the Corporation shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Special Stock and may be
reissued as part of a new series of Special Stock subject to the
conditions and restrictions on issuance set forth herein, in the
Articles of Incorporation, or in any other Certificates of Designations
creating a series of Special Stock or any similar stock or as otherwise
required by law.
6. Liquidation, Dissolution or Winding Up. The Liquidation Value of the
Series H Preferred Stock shall be $100.00 per share. Upon any
liquidation, dissolution or winding up of the Corporation, and after
paying and providing for the payment of all creditors of the
Corporation, the holders of shares of the Series H Preferred Stock then
outstanding shall be entitled, before any distribution or payment is
made upon any Junior Securities (defined to be and mean the Common
Stock and any other equity security of any kind which the Corporation
at any time has issued, issues or is authorized to issue if the Series
H Preferred Stock has priority over such securities as to dividends or
upon liquidation, dissolution or winding up), to receive a liquidation
preference in an amount in cash equal to the Adjusted Liquidation Value
as of the date of such payment, whether such liquidation is voluntary
or involuntary, and the holders of the Series H Preferred Stock shall
not be entitled to any other or further distributions of the assets.
If, upon any liquidation, dissolution or winding up of the affairs of
the Corporation, the net assets available for distribution shall be
insufficient to permit payment to the holders of all outstanding shares
of all series of Special Stock of the
-8-
<PAGE> 9
amount to which they respectively shall be entitled, then the assets of
the Corporation to be distributed to such holders will be distributed
ratably among them based upon the amounts payable on the shares of each
such series of Special Stock in the event of voluntary or involuntary
liquidation, dissolution or winding up, as the case may be, in
proportion to the full preferential amounts, together with any and all
arrearages to which they are respectively entitled. Upon any such
liquidation, dissolution or winding up of the Corporation, after the
holders of Special Stock have been paid in full the amounts to which
they are entitled, the remaining assets of the Corporation may be
distributed to holders of Junior Securities, including Common Stock, of
the Corporation. The Corporation will mail written notice of such
liquidation, dissolution or winding up, not less than twenty (20) nor
more than fifty (50) days prior to the payment date stated therein to
each record holder of Series H Preferred Stock. Neither the
consolidation nor merger of the Corporation into or with any other
corporation or corporations, nor the sale or transfer by the
Corporation of less than all or substantially all of its assets, nor a
reduction in the capital stock of the Corporation, nor the purchase or
redemption by the Corporation of any shares of its Special Stock or
Common Stock or any other class of its stock will be deemed to be a
liquidation, dissolution or winding up of the Corporation within the
meaning of this Section 6.
7. Ranking. Except as provided in the following sentence, the Series H
Preferred Stock shall rank on a parity as to dividends and upon
liquidation, dissolution or winding up with all other shares of Special
Stock issued by the Corporation. The Corporation shall not issue any
shares of Special Stock of any series which are superior to the Series
H Preferred Stock as to dividends or rights upon liquidation,
dissolution or winding up of the Corporation as long as any shares of
the Series H Preferred Stock are issued and outstanding, without the
prior written consent of the holders of a majority of such shares of
Series H Preferred Stock then outstanding voting separately as a class.
8. Redemption at the Option of the Holder. The shares of Series H
Preferred Stock shall not be redeemable at the option of a holder of
Series H Preferred Stock.
9. Redemption at the Option of the Corporation.
(A) In addition to the redemption right of the Corporation set
forth in Section 3(A) above, the Corporation shall have the
right to redeem all or a portion of the Series H Preferred
Stock issued and outstanding at any time after January 1, 1999
and from time to time, at its option, for cash. The redemption
price of the Series H Preferred Stock pursuant to this Section
9 shall be an amount per share equal to the sum of (i) (a)
105% of Liquidation Value during the period from issuance
through December 31, 1999; (b) 104% of Liquidation Value
during the period from January 1, 2000 through December 31,
2000; (c) 103% of the Liquidation Value during the period from
January 1, 2001 through December 31, 2001; (d) 102% of
Liquidation Value during the period from January 1, 2002
through December 31, 2002; (e) 101% of Liquidation Value
during the period from January 1, 2003 through December 31,
2003; and (f) 100% of Liquidation Value from January 1, 2004
and thereafter, and (ii) all accrued and unpaid dividends
thereon through the date of such redemption (the "Redemption
Price").
-9-
<PAGE> 10
(B) The Corporation may redeem all or a portion of any holder's
shares of Series H Preferred Stock by giving such holder not
less than twenty (20) days nor more than thirty (30) days
notice thereof prior to the date on which the Corporation
desires such shares to be redeemed, which date shall be a
Business Day (the "Redemption Date"). Such notice shall be
written and shall be hand delivered or mailed, postage
prepaid, to the holder (the "Redemption Notice"). If mailed,
such notice shall be deemed to be delivered when deposited in
the United States Mail, postage prepaid, addressed to the
holder of shares of Series H Preferred Stock at his address as
it appears on the stock transfer records of the Corporation.
The right of the Corporation to redeem shares of Series H
Preferred Stock shall remain effective notwithstanding prior
receipt by the Corporation of notice by any holder of Series H
Preferred Stock of such holder's intent to convert shares of
Series H Preferred Stock in accordance with Section 3 above,
provided that the Redemption Notice is given on or prior to
the second Business Day following the date of surrender of
shares made to convert said shares to Common Stock. The
Redemption Notice shall state (i) the total number of shares
of Series H Preferred Stock held by such holder; (ii) the
total number of shares of the holder's Series H Preferred
Stock that the Corporation intends to redeem; (iii) the
Redemption Date and the Redemption Price; and (iv) the place
at which the holder(s) may obtain payment of the applicable
Redemption Price upon surrender of the share certificate(s).
(C) If fewer than all shares of the Series H Preferred Stock at
any time outstanding shall be called for redemption, such
shares shall be redeemed pro rata, by lot drawn or other
manner deemed fair in the sole discretion of the Board of
Directors to redeem one or more such shares without redeeming
all such shares of Series H Preferred Stock. If a Redemption
Notice shall have been so mailed, at least two Business Days
prior to the Redemption Date the Corporation shall provide for
payment of a sum sufficient to redeem the applicable number of
shares of Series H Preferred Stock subject to redemption
either by (i) setting aside the sum required to be paid as the
Redemption Price by the Corporation, separate and apart from
its other funds, in trust for the account of the holder(s) of
the shares of Series H Preferred Stock to be redeemed or (ii)
depositing such sum in a bank or trust company (either located
in the state where the principal executive office of the
Corporation is maintained, such bank or trust company having a
combined surplus of at least $20,000,000 according to its
latest statement of condition, or such other bank or trust
company as may be permitted by the Articles of Incorporation,
or by law) as a trust fund, with irrevocable instructions and
authority to the bank or trust company to give or complete the
notice of redemption and to pay, on or after the Redemption
Date, the applicable Redemption Price on surrender of
certificates evidencing the share(s) of Series H Preferred
Stock so called for redemption and, in either event, from and
after the Redemption Date (a) the share(s) of Series H
Preferred Stock shall be deemed to be redeemed, (b) such
setting aside or deposit shall be deemed to constitute full
payment for such shares(s), (c) such share(s) so redeemed
shall no longer be deemed to be outstanding, (d) the holder(s)
thereof shall cease to be a shareholder of the Corporation
with respect to such share(s), and (e) such holder(s) shall
have no rights
-10-
<PAGE> 11
with respect thereto except the right to receive the
Redemption Price for the applicable shares. Any interest on
the funds so deposited shall be paid to the Corporation. Any
and all such redemption deposits shall be irrevocable except
to the following extent: any funds so deposited which shall
not be required for the redemption of any shares of Series H
Preferred Stock because of any prior sale or purchase by the
Corporation other than through the redemption process,
subsequent to the date of deposit but prior to the Redemption
Date, shall be repaid to the Corporation forthwith and any
balance of the funds so deposited and unclaimed by the
holder(s) of any shares of Series H Preferred Stock entitled
thereto at the expiration of one calendar year from the
Redemption Date shall be repaid to the Corporation upon its
request or demand therefor, and after any such repayment of
the holder(s) of the share(s) so called for redemption shall
look only to the Corporation for payment of the Redemption
Price thereof. All shares of Series H Preferred Stock redeemed
shall be canceled and retired and no shares shall be issued in
place thereof, but such shares shall be restored to the status
of authorized but unissued shares of Special Stock.
(D) Holders whose shares have been redeemed hereunder shall
surrender the certificate or certificates representing such
shares, duly endorsed or assigned (unless such endorsement or
assignment be waived by the Corporation), to the Corporation
by mail, courier or personal delivery at the Corporation's
principal executive office or other location so designated in
the Redemption Notice, and upon the Redemption Date the
Redemption Price shall be payable to the order of the person
whose name appears on such certificate or certificates as the
owner thereof, and each surrendered certificate shall be
canceled and retired. In the event fewer than all of the
shares represented by such certificates are redeemed, a new
certificate shall be issued representing the unredeemed
shares.
10. Sinking Fund. The Corporation shall not be required to maintain any
so-called "sinking fund" for the retirement on any basis of the Series
H Preferred Stock.
11. Fractional Shares. The Series H Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all
other rights of holders of shares of Series H Preferred Stock.
12. Notice. Any notice or request made to the Corporation in connection
with the Series H Preferred Stock shall be given, and shall
conclusively be deemed to have been given and received three Business
Days following deposit thereof in writing, in the U.S. mails, certified
mail, return receipt requested, duly stamped and addressed to the
Corporation, to the attention of its General Counsel, at its principal
executive offices (which shall be deemed to be the address most
recently provided to the Securities and Exchange Commission ("SEC") as
its principal executive offices for so long as the Corporation is
required to file reports with the SEC).
-11-
<PAGE> 12
IN WITNESS WHEREOF, these Articles of Amendment are executed on behalf
of the Corporation by its President and attested by its Secretary as of the 24th
day of June, 1998.
/s/ KARL L. BLAHA
-------------------------------------
Karl L. Blaha
President
Attest:
/s/ ROBERT A. WALDMAN
- ----------------------------
Robert A. Waldman
Secretary
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
American Realty Trust, Inc.
Dallas, Texas
We hereby consent to the use in the Prospectus constituting a part of this
Registration Statement of our report dated March 25, 1998, relating to the
consolidated financial statements of American Realty Trust, Inc. for the year
ended December 31, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Dallas, Texas
September 3, 1998
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March 6,
1998, relating to the consolidated financial statements and schedules of
Continental Mortgage and Equity Trust appearing in the Trust's Annual Report on
Form 10-K for the year ended December 31, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Dallas, Texas
September 3, 1998
<PAGE> 1
EXHIBIT 23.3
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March 6,
1998, relating to the consolidated financial statements and schedules of Income
Opportunity Realty Investors, Inc. appearing in the Company's Annual Report on
Form 10-K for the year ended December 31, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Dallas, Texas
September 3, 1998
<PAGE> 1
EXHIBIT 23.4
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March
12, 1998, relating to the consolidated financial statements and schedules of
Transcontinental Realty Investors, Inc. appearing in the Company's Annual
Report on Form 10-K for the year ended December 31, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Dallas, Texas
September 3, 1998
<PAGE> 1
EXHIBIT 23.5
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March
23, 1998, relating to the consolidated financial statements and schedules of
National Realty, L.P. appearing in the Partnership's Annual Report on Form 10-K
for the year ended December 31, 1997.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Dallas, Texas
September 3, 1998
<PAGE> 1
EXHIBIT 23.7
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 2 to Registration Statement No.
33-43777 of American Realty Trust, Inc. of our report dated March 15, 1998
appearing in the Prospectus which is part of such Registration Statement, and to
the reference to us under the heading "Experts" in such Prospectus.
/s/ DELOITTE & TOUCHE LLP
Atlanta, Georgia
August 31, 1998
<PAGE> 1
EXHIBIT 99.1
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
AMERICAN REALTY TRUST, INC.
(ART)
AND
ART NEWCO, LLC
(NEWCO)
AND
BASIC CAPITAL MANAGEMENT, INC.
(BCM)
AND
EQK REALTY INVESTORS I
(EQK)
AND
LEND LEASE PORTFOLIO MANAGEMENT, INC.
(LLPM)
DATED AS OF AUGUST 25, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE I
THE MERGER
1.01. The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.03. Effect of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04. Declaration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.05. Trustees' Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.06. Additional Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.07. Merger Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.08. Merger Agent; Merger Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.09. Termination of Advisor; Successor Advisor; Additional Consideration . . . . . . . . . . . . . . . . . 3
1.10. ART Shares; Listing of ART Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.11. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.12. EQK Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.13. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.15. Block Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.16. Halperin Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
CLOSING
2.01. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.02. Deliveries by EQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.03. Deliveries by Newco and ART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EQK
3.01. Organization and Qualification of EQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.02. Power and Capacity; Charter Documents of EQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.03. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.04. Capitalization and Ownership of EQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.05. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.06. Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.07. Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.08. EQK Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.09. Redemptions of EQK Shares by EQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
TABLE OF CONTENTS
(CONT D)
PAGE
----
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
NEWCO AND ART
4.01. Organization and Qualification - Newco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.02. Organization and Qualification - ART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.03. Power and Capacity of Newco; Charter Documents of Newco . . . . . . . . . . . . . . . . . . . . . . 12
4.04. Power and Capacity of ART; Charter Documents of ART . . . . . . . . . . . . . . . . . . . . . . . . 12
4.05. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.06. Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.07. No Material and Adverse Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V
OTHER OBLIGATIONS OF THE PARTIES
5.01. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.02. Conduct of Business Pending the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.03. Access and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.04. Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.05. Solicitation Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.06. Governmental Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.07. Covenant to Satisfy Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.08. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.09. Shareholder Meeting of EQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.10. Information Delivered to Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.11. Resignation and Election of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.12. SEC Filings; Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.13. Compliance with Applicable Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.16. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
CONDITIONS PRECEDENT
6.01. Conditions Precedent to Obligations of Newco and ART . . . . . . . . . . . . . . . . . . . . . . . . 18
6.02. Conditions Precedent to Obligations of EQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C>
TABLE OF CONTENTS
(CONT'D)
PAGE
ARTICLE VII
TERMINATION, AMENDMENT, WAIVER
7.01. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.02. Procedure Upon Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.04. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VIII
MISCELLANEOUS
8.01. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.02. Acknowledgment by ART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.03. Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.05. Definition of Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.06. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.07. No Third-Party Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.08. Entire Agreement; Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.09. Reformation and Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.11. Discretionary Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.12. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.13. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
<TABLE>
<S> <C>
EXHIBITS:
Exhibit A - Form of Amended Declaration of Trust
Exhibit B - Form of New Advisory Agreement
Exhibit C - Copy of Amended and Restated Articles of Amendment
Exhibit D-1 - List of EQK Exceptions
Exhibit D-2 - List of ART Exceptions
Exhibit E - Copy of Amended and Restated Cost Sharing Agreement
Exhibit F - Form of Standstill Agreement
Exhibit G - Form of Purchase and Sale Agreement
</TABLE>
<PAGE> 5
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"AGREEMENT"), dated as of August 25, 1998, is by and among American Realty
Trust, Inc., a Georgia corporation ("ART"), Basic Capital Management, Inc., a
Nevada corporation ("BCM"), ART Newco, LLC, a Massachusetts limited liability
company ("NEWCO"), EQK Realty Investors I, a Massachusetts business trust
("EQK" and sometimes the "SURVIVING ENTITY"), and Lend Lease Portfolio
Management, Inc., a Delaware corporation ("LLPM").
INTRODUCTORY STATEMENTS
ART, BCM, Newco, EQK, LLPM and Compass Retail, Inc. entered into that
certain Agreement and Plan of Merger, dated as of December 23, 1997, and now
desire to amend and restate such agreement herein in its entirety.
EQK, Newco and ART desire to effect the merger of Newco with and into
EQK, with EQK as the Surviving Entity, pursuant to the terms hereof (the
"MERGER").
Accordingly, for and in consideration of the foregoing and the mutual
agreements, representations, warranties, covenants and conditions herein set
forth, and other good, valid and binding consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I
THE MERGER
1.01. The Merger. Upon the terms and subject to the
conditions hereof, the Merger shall be consummated in
accordance with the applicable laws of the
Commonwealth of Massachusetts (the "MASSACHUSETTS
LAW") as soon as practicable following the
satisfaction or waiver of the conditions set forth in
Article VI hereof. At the Effective Time (as
hereinafter defined) and subject to and upon the
terms and conditions of this Agreement and the
Massachusetts Law, Newco shall be merged with and
into EQK, the separate corporate existence of Newco
shall cease, and EQK shall continue as the Surviving
Entity.
1.02. Effective Time. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in
Article VI hereof, the parties hereto shall cause the
Merger to be consummated by filing a certificate of
merger with the Office of the State Secretary of the
Commonwealth of Massachusetts in such form as
required by, and executed in accordance with the
relevant provisions of, the Massachusetts Law, which
form shall be mutually agreeable to ART and EQK. The
Merger shall become
<PAGE> 6
effective upon the filing of such certificate of
merger with the Office of the State Secretary of the
Commonwealth of Massachusetts (the "EFFECTIVE TIME").
1.03. Effect of the Merger. At the Effective Time, the
effect of the Merger in Massachusetts shall be as
provided by Massachusetts Law.
1.04. Declaration of Trust. Immediately prior to the
Effective Time, the Second Amended and Restated
Declaration of Trust of ART Realty Investors I, as
approved by EQK's current Board of Trustees and by
EQK's shareholders at the EQK Meeting (as defined
below), a copy of which is attached hereto as EXHIBIT
A, shall be filed in accordance with Massachusetts
Law (the "AMENDED DECLARATION OF TRUST"). The
Amended Declaration of Trust shall continue to be the
declaration of trust of the Surviving Entity until
thereafter amended in accordance with the provisions
of the Amended Declaration of Trust and Massachusetts
Law.
1.05. Trustees' Regulations. The Trustees' Regulations of
EQK, as in effect immediately prior to the Effective
Time, shall be the Trustees' Regulations of the
Surviving Entity until thereafter amended in
accordance with Massachusetts Law and the Amended
Declaration of Trust.
1.06. Additional Actions. If, at any time after the
Effective Time, the Surviving Entity shall consider
or be advised that any deeds, bills of sale,
assignments, assurances, or any other actions or
things are necessary or desirable to vest, perfect or
confirm, of record or otherwise, in the Surviving
Entity its right, title or interest in, to or under
any of the rights, properties or assets of EQK or
Newco acquired or to be acquired by the Surviving
Entity as a result of, or in connection with, the
Merger or otherwise to carry out this Agreement, the
officers and trustees of the Surviving Entity shall
be authorized to execute and deliver, in the name and
on behalf of EQK and Newco, all such deeds, bills of
sale, assignments and assurances and to take and do,
in the name and on behalf of EQK and Newco or
otherwise, all such other actions and things as may
be necessary or desirable to vest, perfect or confirm
any and all right, title and interest in, to and
under such rights, properties or assets in the
Surviving Entity or otherwise to carry out this
Agreement.
1.07. Merger Consideration. At the Effective Time, by
virtue of the Merger and without any action on the
part of EQK, ART, Newco or the holder of any of the
following securities:
(a) Each holder of shares of beneficial
interest of EQK (each, an "EQK
SHARE") issued and outstanding as of
the record date for the EQK Meeting
(as defined in Section 1.09) (the
"RECORD DATE"), other than ART and
its affiliates, LLPM, Greenspring
Fund Inc. ("GREENSPRING"), Summit
Venture, L.P. ("SUMMIT"), Sutter
Opportunity Fund, LLC ("SUTTER") and
Maurice A. Halperin ("MR.
HALPERIN"), will be entitled to
receive for each EQK Share owned by
such holder 0.0140 shares of Series
F Cumulative Convertible
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<PAGE> 7
Preferred Stock, par value $2.00 per
share, of ART (the "ART SHARES")
with a stated liquidation value of
$10.00 per share (the "LIQUIDATION
VALUE") (the ART Shares, with
respect to each EQK Share, the "EQK
MERGER CONSIDERATION"). Each EQK
Share outstanding immediately prior
to the Effective Time shall remain
outstanding without increase or
decrease.
(b) As consideration for the Merger, ART
will be entitled to receive 673,976
newly-issued EQK Shares (the "ART
MERGER CONSIDERATION" and, together
with the EQK Merger Consideration,
the "MERGER CONSIDERATION").
1.08. Merger Agent; Merger Fund.
(a) Prior to the Effective Time, ART and
EQK shall designate a bank or trust
company to act as agent for the
holders (other than ART or its
affiliates) of EQK Shares (the
"MERGER AGENT") to receive the ART
Shares necessary to transfer the EQK
Merger Consideration contemplated by
Section 1.07(a) hereof.
(b) Immediately prior to the Effective
Time, ART shall distribute to the
Merger Agent, for the benefit of
holders (other than ART or its
affiliates) of the EQK Shares the
EQK Merger Consideration to be paid
to such holders pursuant to Section
1.07(a) (the "MERGER FUND"). As
soon as practicable after the
Effective Time, the Merger Agent
shall, pursuant to irrevocable
instructions, pay the EQK Merger
Consideration out of the Merger Fund
to each holder of record of EQK
Shares, other than ART or its
affiliates, LLPM, Greenspring,
Summit, Sutter and, if the Halperin
Purchase (as defined in Section
1.16) is consummated, Mr. Halperin.
(c) At the Effective Time, there shall
be no further registration of
transfers of interests in Newco
("NEWCO INTERESTS") created prior to
the Merger on the records of Newco
or the Surviving Entity. At the
Effective Time all Newco Interests
shall be canceled.
(d) Any unclaimed EQK Merger
Consideration shall be disbursed by
the Merger Agent in accordance with
the applicable provisions of
Massachusetts Law.
1.09. Termination of Advisor; Successor Advisor; Additional
Consideration. LLPM currently serves as an advisor to
EQK pursuant to the terms and conditions of an
advisory agreement (the "ADVISORY AGREEMENT") between
LLPM and EQK. Contemporaneously with the Closing,
the Advisory Agreement will be terminated and EQK and
BCM shall enter into a new advisory agreement (the
"NEW ADVISORY AGREEMENT"), in substantially the form
attached hereto as EXHIBIT B, subject to the approval
of the New Advisory Agreement by the holders of
three-quarters of the outstanding EQK Shares at the
next meeting of shareholders of EQK (the "EQK
MEETING"). In its capacity as successor advisor to
EQK, BCM shall be entitled to
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<PAGE> 8
receive the fees and other compensation specified in
the New Advisory Agreement. LLPM hereby releases
EQK, effective as of the Closing Date, from any and
all obligations under the Advisory Agreement,
including without limitation for deferred fees or
disposition fees, it being agreed that LLPM shall be
entitled to receive on or prior to the Closing Date
all fees due and payable to it in accordance with the
terms of the Advisory Agreement.
1.10. ART Shares; Listing of ART Shares. The ART Shares
will be issued pursuant to the Amended and Restated
Articles of Amendment of the Articles of
Incorporation of ART (the "ARTICLES OF AMENDMENT"), a
copy of which is attached hereto as EXHIBIT C and
shall have the designations, preferences and rights
set forth in the Articles of Amendment. Following
the execution of this Agreement by EQK, ART will
promptly take such actions as are necessary and
within its control to cause the ART Shares to become
listed, and thereafter to continue to be listed, for
trading on the New York Stock Exchange (the "NYSE").
1.11. Intentionally Omitted.
1.12. EQK Shares. The ART Merger Consideration shall be
issued pursuant to the Amended Declaration of Trust.
As of the date of this Agreement, there are 9,632,212
issued and outstanding EQK Shares.
1.13. Intentionally Omitted.
1.14. Name of Surviving Entity. Pursuant to the Amended
Declaration of Trust, the name of the Surviving
Entity shall be changed to "ART Realty Investors I".
1.15. Block Purchase. Immediately prior to the Merger, ART
will purchase an aggregate of 3,521,856 EQK Shares
from LLPM, Greenspring, Summit and Sutter pursuant to
the terms of stock purchase agreements (the "BLOCK
PURCHASE"), which shall also require LLPM, Summit,
Sutter and Greenspring to vote in favor of all
matters voted upon at the EQK Meeting.
1.16. Halperin Purchase. Upon declaration of the
effectiveness of the S-4 Registration Statement (as
defined in Section 4.06), ART will offer to purchase
from Mr. Halperin the 854,200 EQK Shares owned by Mr.
Halperin pursuant to substantially the same terms as
the Block Purchase (such purchase, the "HALPERIN
PURCHASE"). Such purchase, if the related offer is
accepted by Mr. Halperin, will be consummated
simultaneously with the Block Purchase immediately
prior to the Merger. The refusal of Mr. Halperin to
accept such offer will not affect the terms and
conditions of the Merger as set forth herein.
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<PAGE> 9
ARTICLE II
CLOSING
2.01. Closing. The Closing of the transactions
contemplated hereby (the "CLOSING") shall, subject to
the satisfaction or waiver of the conditions set
forth in Article VI hereof, take place within ten
Business Days after the later of (i) the EQK Meeting,
or (ii) the consummation by EQK of the sale of the
Harrisburg East Mall (the "MALL"), but in no event
before the acquisition of the New Property (defined
herein), at the offices of Andrews & Kurth L.L.P.,
1717 Elm Street, Suite 3700, Dallas, Texas 75201 or
at such other date, time and place as EQK, ART and
Newco mutually agree. The date on which the Closing
actually occurs is referred to herein as the "CLOSING
DATE". As used herein, the term "BUSINESS DAY" shall
mean any day other than a Saturday, a Sunday or any
day on which banks in the State of Texas are
permitted or required by law to be closed.
2.02. Deliveries by EQK. At the Closing, EQK shall
deliver, or cause to be delivered, to Newco and ART
(unless delivered previously) the following:
(a) the Officers' Certificate referred
to in Section 6.01(d) hereof;
(b) the Certificate of the Secretary of
EQK referred to in Section 6.01(e)
hereof;
(c) the opinions of counsel referred to
in Section 6.01(f) hereof;
(d) executed counterparts of any
consents required to be obtained by
EQK pursuant to Section 5.04 hereof;
(e) the certificate regarding
non-foreign status referred to in
Section 6.01(i) hereof; and
(f) all other previously undelivered
documents, instruments and writings
required to be delivered by EQK to
Newco or ART at or prior to the
Closing pursuant to this Agreement
or otherwise required in connection
herewith.
2.03. Deliveries by Newco and ART. At the Closing, Newco
and ART shall deliver, or cause to be delivered, to
EQK (unless delivered previously) the following:
(a) the Officers' Certificates referred
to in Section 6.02(d) hereof;
(b) the Secretary's Certificates
referred to in Section 6.02(e)
hereof,
(c) the opinions of counsel referred to
in Section 6.02(f) hereof;
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<PAGE> 10
(d) all other previously undelivered
documents, instruments and writings
required to be delivered by Newco or
ART to EQK at or prior to the
Closing pursuant to this Agreement
or otherwise required in connection
herewith.
Furthermore, ART shall deliver, or cause to be
delivered, the Merger Fund to the Merger Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EQK
EQK hereby represents and warrants to Newco and ART as follows:
3.01. Organization and Qualification of EQK. EQK is (a) a
business trust duly organized, validly existing and
in good standing under the laws of the Commonwealth
of Massachusetts and (b) duly qualified to do
business as a foreign business trust and in good
standing in each jurisdiction in which the character
of the properties and assets now owned or leased by
it or the nature of the business transacted by it
requires it to be so qualified, except where the
failure to be so qualified, individually or in the
aggregate, would not materially and adversely affect
EQK or the consummation of the transactions
contemplated hereby. No jurisdiction in which EQK is
not qualified or licensed has claimed, in writing or
otherwise, that EQK is required to qualify or be
licensed therein.
3.02. Power and Capacity; Charter Documents of EQK.
(a) Subject to the approval of the
shareholders of EQK in accordance
with the terms of Massachusetts Law,
the Declaration of Trust and this
Agreement, EQK has all requisite
power and authority to enter into,
execute and deliver this Agreement
and perform its obligations
hereunder. EQK has the power and
authority to carry on its business
as now being conducted and to own
and lease its properties. This
Agreement has been duly authorized,
executed and delivered by EQK and is
a valid and binding obligation of
EQK, enforceable in accordance with
its terms.
(b) Subject to approval of the Merger,
the Amended Declaration of Trust and
the New Advisory Agreement at the
EQK Meeting and the filing of the
Amended Declaration of Trust in
accordance with Massachusetts Law,
the execution, delivery and
performance of this Agreement and
the consummation of the transactions
contemplated hereby by EQK will not
result in a violation or breach of
or constitute a default under any
term or provision of the Declaration
of Trust, the Amended Declaration of
Trust or the Trustee Regulations.
-6-
<PAGE> 11
3.03. Subsidiaries. EQK does not (i) own, beneficially or
of record, any shares of any other corporation or
entity or any interests in any partnerships or
limited liability companies or (ii) participate in
any manner in any joint ventures, corporate alliance
agreements or corporate partnering agreements. EQK
has no interest in, and is not subject to, any
agreement, obligation or commitment to make any
equity investment in or loan or advance to, any other
Person (as defined herein).
3.04. Capitalization and Ownership of EQK. The
capitalization of EQK as of the date hereof is as
follows:
<TABLE>
<S> <C>
Authorized EQK Shares . . . . . . . . . . . . . . . . 10,055,555
Issued and Outstanding EQK Shares . . . . . . . . . . 9,632,212
</TABLE>
Number of EQK Shares owned by each holder of 5% or more of the Issued
and Outstanding Shares:
<TABLE>
<S> <C>
LLPM . . . . . . . . . . . . . . . . . . . . 1,685,556 (17.5%)
E.I. duPont de Nemours Co. Inc. Trust Fund . 906,600 (9.4%)
Maurice A. Halperin . . . . . . . . . . . . 854,200 (8.9%)
Greenspring Fund, Inc. . . . . . . . . . . . 583,800 (6.1%)
Sutter Opportunity Fund, LLC. . . . . . . . 627,500 (6.5%)
Summit Venture, L.P. . . . . . . . . . . . . 625,000 (6.5%)
</TABLE>
All of the outstanding EQK Shares are validly issued,
fully paid and non-assessable. All such EQK Shares
are owned free and clear of any lien, claim or
encumbrance of any type whatsoever imposed by EQK or
any other Person. There are no outstanding options,
warrants or other rights to acquire any EQK Shares,
there are no outstanding securities authorized,
granted or issued by EQK that are convertible into or
exchangeable for EQK Shares and there are no phantom
share rights, share appreciation rights or similar
rights regarding EQK.
3.05. No Conflicts. Subject to the exceptions listed on
EXHIBIT D-1 attached hereto (the "LIST OF
EXCEPTIONS"), the execution, delivery and performance
of this Agreement by EQK and the consummation of the
transactions contemplated hereby will not:
(a) result in the creation or imposition
of any security interest, lien,
charge or other encumbrance against
any real or personal property owned
by EQK on the Closing Date
(collectively, the "EQK PROPERTY"),
with or without the giving of notice
and/or the passage of time, or
(b) violate, conflict with, affect
acceleration of, or result in
termination, cancellation or
modification of, or constitute a
default under (i) any contract,
-7-
<PAGE> 12
agreement or other instrument to
which EQK is a party or by which EQK
or its assets is bound or (ii) any
note, bond, mortgage, indenture, deed
of trust, license, lease, contract,
commitment, understanding,
arrangement, agreement or restriction
of any kind or character to which EQK
is a party or by which EQK may be
bound or affected, or to which EQK
may be subject, or
(c) violate any statute or Law or any
judgment, decree, order, writ,
injunction, regulation or rule of
any court or any local, state or
federal governmental or regulatory
authority,
which violation, conflict, acceleration, requirement,
termination, modification or default described in (a),
(b), or (c) above could materially and adversely
affect EQK or the transactions contemplated by this
Agreement.
3.06. Consents and Approvals. Assuming that the sale of
the Mall and the repayment of all of the related
indebtedness with respect thereto occurs prior to the
Closing hereunder, EQK is not required to obtain,
transfer or cause to be obtained or transferred any
consent, approval, license, permit or authorization
of, or make any declaration, filing or registration
with, any third party or any public body or authority
in connection with (a) the execution and delivery by
EQK of this Agreement, or (b) the consummation of the
Merger and the other transactions contemplated
hereby, other than (i) the approval of the Merger,
the Amended Declaration of Trust, and the New
Advisory Agreement by its shareholders, (ii) a
certificate of merger pursuant to Massachusetts Law,
or (iii) those that may be required solely by reason
of Newco's or ART's participation in the transactions
contemplated hereby.
3.07. Absence of Certain Changes. From June 30, 1998
through the date hereof, except as may be reflected
in filings with the SEC, EQK has not:
(a) suffered any material adverse effect
in respect of its business,
operations, condition (financial or
otherwise), liabilities, EQK
Property or earnings and there has
not been any event (whether
occurring before or after June 30,
1998) that could reasonably be
expected to have a material adverse
effect on the business, operations,
condition (financial or otherwise),
liabilities, EQK Property or
earnings of EQK; or
(b) experienced any material decrease in
the book value of the EQK Property
from the amounts reflected in public
filings with the Commission, other
than decreases resulting from
depreciation in accordance with
accounting practices in effect at
all times since January 1, 1997; or
(c) except as set forth in the List of
Exceptions set forth in EXHIBIT D-1
attached hereto, incurred any
liabilities or obligations of any
nature (whether absolute, accrued,
contingent or otherwise and whether
due or to become due), except
liabilities or obligations for items
incurred in the ordinary course of
business
-8-
<PAGE> 13
of EQK and consistent with past
practice, none of which other items
exceeds $25,000 (considering
liabilities or obligations arising
from one transaction or a series of
similar transactions, and all
periodic installments or payments
under any lease) or other agreement
providing for periodic installments
or payments, as a single obligation
or liability); or
(d) increased (other than increases
resulting from the calculation of
reserves in the ordinary course of
business and in a manner consistent
with past practice), or experienced
any change in any assumptions
underlying or methods of
calculating, any bad debt,
contingency or other reserves; or
(e) paid, discharged or satisfied any
claims, encumbrances, liabilities or
obligations (whether absolute,
accrued, contingent or otherwise and
whether due or to become due) other
than the payment, discharge or
satisfaction in the ordinary course
of business and consistent with past
practice of liabilities and
obligations reflected or reserved
against in public filings with the
Commission or incurred in the
ordinary course of business and
consistent with past practice since
June 30, 1998; or
(f) permitted, allowed or suffered any
of the EQK Property (as defined
herein) to be subjected to any
mortgage, pledge, lien, encumbrance,
restriction or charge of any kind
(except for the Mortgage Note and
the Term Loan described in the
Prospectus/Proxy Statement (as
defined in Section 5.06) and any
liens for Taxes not yet owing).
"TAX RETURN" means any report,
statement, form, return or other
document or information required to
be supplied to a taxing authority in
connection with Taxes. "TAX" or
"TAXES" means any United States or
foreign federal, state, or local
tax, including without limitation
income tax, ad valorem tax, excise
tax, sales tax, use tax, franchise
tax, gross receipts tax, withholding
tax, social security tax, occupation
tax, service tax, license tax,
payroll tax, transfer and recording
tax, severance tax, customs tax,
import tax, export tax, employment
tax, or any similar or other tax,
assessment, duty, fee, levy or other
governmental charge, together with
and including, without limitation,
any and all interest, fines,
penalties, assessments and additions
to tax resulting from, relating to,
or incurred in connection with any
such tax or any contest or dispute
thereof; or
(g) determined as collectible any notes
or accounts receivable or any
portion thereof which were
previously considered uncollectible,
or written off as uncollectible any
notes or accounts receivable or any
portion thereof, except for
write-downs in the ordinary course
of business, consistent with past
practice, in accordance with GAAP
consistently applied; or
(h) canceled any material amount of
indebtedness or waived any material
claims or rights; or
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<PAGE> 14
(i) sold, transferred or otherwise
disposed of any EQK Property except
in the ordinary course of business
and consistent with past practice;
or
(j) disposed of or permitted to lapse
any right to the use of any patent,
trademark, assumed name, service
mark, trade name, copyright, license
or application therefor or disposed
of or disclosed to any corporation,
association, partnership,
organization, business, individual,
government or political subdivision
thereof or government agency (each,
a "PERSON") other than
representatives of Newco and ART any
trade secret, formula, process or
know-how not theretofore a matter of
public knowledge; or
(k) granted any increase in the salary,
compensation, rate of compensation,
commissions or bonuses payable to or
to become payable by EQK to any
officer or trustee of EQK
(including, without limitation, any
increase or change pursuant to any
bonus, pension, profit-sharing,
retirement or other plan or
commitment); or
(l) paid, loaned or advanced any amount
to any officer, trustee, or
shareholder of EQK, or sold,
transferred or leased any EQK Assets
to, or entered into any agreement
(other than this Agreement) or
arrangement with, any officer,
trustee, or shareholder of EQK
(except for agreements or
arrangements made in the ordinary
course of business and consistent
with past practice); or
(m) except as set forth in the List of
Exceptions set forth in EXHIBIT D-1
attached hereto, made any single
capital expenditure or commitment in
excess of $10,000 for additions to
property, plant, equipment or for
any other purpose or made aggregate
capital expenditures or commitments
in excess of $25,000 for additions
to property, plant, equipment or for
any other purpose; or
(n) made any change in any method of
accounting or accounting practice or
policy; or
(o) suffered any casualty loss in excess
of $10,000 (whether or not insured
against) or suffered aggregate
casualty losses in excess of $25,000
(whether or not insured against); or
(p) issued any additional shares of
beneficial interest of EQK or any
option, warrant, right or other
security exercisable for,
convertible into or exchangeable for
EQK Shares other than in connection
with the issuance of EQK Shares in
connection with the exercise of
certain warrants held by The
Prudential Insurance Company of
America; or
(q) paid dividends on or made other
distributions or payments in respect
of the EQK Shares; or
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<PAGE> 15
(r) taken any other action not either in
the ordinary course of business and
consistent with past practice or
provided for in this Agreement; or
(s) entered into or agreed to any
transaction not in the ordinary
course of business or provided for
in this Agreement; or
(t) agreed, whether in writing or
otherwise, to take any of the
actions set forth in this Section
3.07.
3.08. EQK Information. All information regarding EQK or
LLPM and their respective businesses and operations
that is included or incorporated by reference into
the Registration Statement (as defined in Section
4.06), as of the date thereof and hereof, is true and
accurate in all material respects, and does not
contain any untrue statement of a material fact, or
omit to state a material fact necessary to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
3.09. Redemptions of EQK Shares by EQK. There have been no
redemptions of EQK Shares by EQK in the past ten
years.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
NEWCO AND ART
Newco and ART hereby jointly represent and warrant to EQK as follows:
4.01. Organization and Qualification - Newco. Newco is (a)
a limited liability company duly organized, validly
existing and in good standing under the laws of the
State of Massachusetts and (b) duly qualified to do
business as a foreign limited liability company and
in good standing in each jurisdiction in which the
character of the properties and assets now owned or
leased by it or the nature of the business transacted
by it requires it to be so qualified, except where
the failure to be so qualified, individually or in
the aggregate, would not materially and adversely
affect Newco or the consummation of the transactions
contemplated hereby.
4.02. Organization and Qualification - ART. ART is (a) a
corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia
and (b) duly qualified to do business as a foreign
corporation and in good standing in each jurisdiction
in which the character of the properties and assets
now owned or leased by it or the nature of the
business transacted by it requires it to be so
qualified, except where the failure to be so
qualified, individually or in the aggregate, would
not materially and adversely affect ART or the
consummation of the transactions contemplated hereby.
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<PAGE> 16
4.03. Power and Capacity of Newco; Charter Documents of
Newco.
(a) Newco has all requisite power and
authority (corporate and otherwise)
to enter into, execute and deliver
this Agreement and perform its
obligations hereunder. Newco has
the corporate power and authority to
carry on its business as now being
conducted and to own and lease its
properties. This Agreement has been
duly authorized, executed and
delivered by Newco and is a valid
and binding obligation of Newco,
enforceable in accordance with its
terms.
(b) The execution, delivery and
performance of this Agreement and
the consummation of the transactions
contemplated hereby by Newco will
not result in a violation or breach
of or constitute a default under any
term or provision of the Certificate
of Organization or Operating
Agreement of Newco. Newco has
delivered to EQK true and complete
copies of the Certificate of
Organization and the Operating
Agreement of Newco, as in effect on
the date hereof.
4.04. Power and Capacity of ART; Charter Documents of ART.
(a) ART has all requisite power and
authority (corporate and otherwise)
to enter into, execute and deliver
this Agreement and perform its
obligations hereunder. ART has the
corporate power and authority to
carry on its business as now being
conducted and to own and lease its
properties. This Agreement has been
duly authorized, executed and
delivered by ART and is a valid and
binding obligation of ART,
enforceable in accordance with its
terms.
(b) The execution, delivery and
performance of this Agreement and
the consummation of the transactions
contemplated hereby by ART will not
result in a violation or breach of
or constitute a default under any
term or provision of the Articles of
Incorporation or Bylaws of ART. ART
has delivered to EQK true and
complete copies of the Articles of
Incorporation and the Bylaws of ART,
as in effect on the date hereof.
4.05. No Conflicts. The execution, delivery and
performance of this Agreement by Newco and ART and
the consummation of the transactions contemplated
hereby will not:
(a) result in the creation or imposition
of any security interest, lien,
charge or other encumbrance against
Newco's assets or ART's assets, with
or without the giving of notice
and/or the passage of time, or
(b) violate, conflict with, affect
acceleration of, or result in
termination, cancellation or
modification of, or constitute a
default under (i) any contract,
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<PAGE> 17
agreement or other instrument to
which Newco or ART is a party or by
which Newco or ART or their
respective assets is bound or (ii)
any note, bond, mortgage, indenture,
deed of trust, license, lease,
contract, commitment, understanding,
arrangement, agreement or restriction
of any kind or character to which
Newco or ART is a party or by which
Newco or ART may be bound or affected
or to which any of their respective
assets may be subject, or
(c) violate any statute or law or any
judgment, decree, order, writ,
injunction, regulation or rule of
any court or any local, state or
federal governmental or regulatory
authority, which violation,
conflict, acceleration, requirement,
termination, modification or default
described in (a), (b), or (c) above
could materially and adversely
affect Newco or ART or the
transactions contemplated by this
Agreement.
4.06. Consents and Approvals. Neither Newco nor ART is
required to obtain, transfer or cause to be
transferred any consent, approval, license, permit or
authorization of, or make any declaration, filing or
registration with, any third party or any public body
or authority in connection with (a) the execution and
delivery by Newco and ART of this Agreement, or (b)
the consummation of the Merger and the other
transactions contemplated hereby or (c) the future
conduct by the Surviving Entity of EQK Business,
other than (i) the filing by ART of a registration
statement on Form S-4 (the "S-4 REGISTRATION
STATEMENT") with the Securities & Exchange Commission
(the "COMMISSION") for registration of 99,098 ART
Shares under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), (ii) the filing by ART of a
registration statement on Form S-3 (the "S-3
REGISTRATION STATEMENT" and, together with the S-4
Registration Statement, the "REGISTRATION
STATEMENTS") with the Commission for registration of
105,655 ART Shares under the Securities Act in
connection with the Block Purchase, (iii) the filing
a certificate of merger, or (iv) that may be required
solely by reason of EQK's (as opposed to any other
third party's) participation in the transactions
contemplated hereby.
4.07. No Material and Adverse Changes. Since June 30, 1998,
except as may be reflected in filings with the SEC,
there has not been any material adverse change in the
business, operations, properties or financial
condition of Newco or ART.
4.08. ART Information. All information regarding Newco and
ART and their respective businesses and operations
that is included or incorporated by reference into
the Registration Statement, as of the date thereof
and hereof, is true and accurate in all material
respects, and does not contain any untrue statement
of a material fact, or omit to state a material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
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<PAGE> 18
ARTICLE V
OTHER OBLIGATIONS OF THE PARTIES
5.01. Further Assurances.
(a) From the date hereof through the
Closing, ART (on its own behalf and
on behalf of Newco) will take every
action reasonably required of it in
order to satisfy the conditions to
closing set forth in this Agreement
and otherwise to ensure the prompt
and expedient consummation of the
transactions substantially as
contemplated hereby, and will exert
all reasonable efforts to cause the
Merger to be promptly consummated,
provided in all instances that the
covenants and agreements of EQK are
honored and that the conditions to
the obligations of ART and Newco set
forth in this Agreement are
satisfied or appear capable of being
satisfied.
(b) From the date hereof through the
Closing Date, EQK will take every
action reasonably requested of it to
satisfy the conditions to closing
set forth in this Agreement and
otherwise to ensure the prompt and
expedient consummation of the
Merger, and will exert all
reasonable efforts to cause the
Merger to be consummated, provided
in all instances that the covenants
and agreements of ART in this
Agreement are honored, subject at
all times to the right and ability
of the trustees of EQK to satisfy
their fiduciary obligations, if any,
under Massachusetts Law.
5.02. Conduct of Business Pending the Merger.
(a) EQK covenants and agrees with ART
that, except as provided in
subsection (b) of this Section 5.02,
below, prior to the Closing Date or
the termination of this Agreement
pursuant to its terms, unless ART
shall otherwise consent in writing,
EQK will conduct its operations
according to its ordinary and usual
course of business and will not (i)
enter into or agree to any
transaction outside the ordinary
course of business, (ii) incur any
additional indebtedness for borrowed
money except pursuant to existing
lines of credit and in the ordinary
course of business, (iii) pay
dividends on or make other
distributions or payments in respect
of its capital stock, (iv) issue any
additional equity securities or any
option, warrant, right or other
security exercisable for,
convertible into or exchangeable for
any equity securities, (v) increase
or agree to increase the salary,
compensation, bonus or benefits of
any officer, trustee or employee of
EQK other than in the ordinary
course of business (except for
reasonable consideration to be
granted to trustees upon their
retirement from the board of
trustees) or (vi) sell or otherwise
dispose of any of its properties
other than in the ordinary course of
business.
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<PAGE> 19
(b) For all purposes of this Agreement,
ART hereby consents to the
acquisition by EQK of that certain
retail shopping center known as the
"Oak Tree Village"(the "NEW
PROPERTY") from ART or an affiliate
of ART pursuant to the terms and
conditions set forth in that certain
Purchase and Sale Agreement attached
hereto as EXHIBIT G (the "PURCHASE
AND SALE AGREEMENT") and ART hereby
agrees to transfer (or cause the
transfer of) the New Property to EQK
on such terms immediately after the
filing of the Amended Declaration of
Trust and immediately prior to the
Closing hereunder. ART also hereby
consents to the prior sale of the
Mall upon terms and conditions
determined by EQK, the retirement of
the mortgage debt thereon, the
payment of all other obligations of
EQK (other than those associated
with the New Property), the
distribution of EQK's remaining net
liquid assets to the EQK
Shareholders prior to the
consummation of the Merger, and all
actions that EQK determines are
necessary and appropriate to
effectuate the foregoing.
5.03. Access and Information. EQK shall afford to Newco
and ART and to ART's accountants, counsel, and other
representatives reasonable access during normal
business hours throughout the period prior to the
Closing, to all of its properties, books, contracts,
commitments, records (including, but not limited to,
tax returns), and personnel and, during such period,
EQK shall promptly furnish to ART (1) all written
communications to its trustees or to its shareholders
generally, (2) internal monthly financial statements
when and as available, and (3) all other information
concerning its business, properties, and personnel as
ART may reasonably request. Any such information so
obtained by ART will be subject to the terms of the
Confidentiality Agreement. ART and its
representatives shall assert their rights hereunder
in such manner as to minimize interference with the
business of EQK and LLPM.
5.04. Consents. EQK agrees to use its reasonable efforts
to obtain prior to the Closing all consents
necessary, in the reasonable determination of Newco
and ART, to consummate the transactions contemplated
hereby, including without limitation each of the
consents, approvals, licenses, permits and
authorizations (and the declarations, filings and
registrations) listed or referred to in Section 3.06.
All such consents shall be in writing and in form and
substance reasonably satisfactory to Newco and ART,
and executed counterparts thereof shall be delivered
to Newco and ART promptly after receipt thereof by
EQK but in no event later than the Closing.
5.05. Solicitation Permitted. Prior to the Closing or the
termination of this Agreement pursuant to its terms,
EQK and those acting on its behalf may solicit,
encourage, or initiate any discussions with, or
negotiate or otherwise deal with, or provide any
information to, any person or entity concerning any
merger, sale of substantial assets, or similar
transaction involving EQK, or any sale of any of the
EQK Shares. EQK will notify ART immediately upon
receipt of any inquiry, offer, or proposal relating
to any of the foregoing. In the event that EQK
accepts such an offer or proposal from
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<PAGE> 20
a party other than ART or its affiliates (a "THIRD
PARTY OFFER") and elects to terminate this Agreement
pursuant to Section 7.01(e) hereof, EQK will pay to
ART a termination or "break-up" fee of $200,000, plus
EQK's share of any Merger Related Expenses pursuant
to Section 5.16 hereof, and upon such payment, this
Agreement shall be terminated.
5.06. Governmental Filings. As soon as practicable after
the date this Agreement is executed by the parties
hereto, EQK and ART shall prepare and file the
Registration Statement with the SEC. A
prospectus/proxy statement (the "PROSPECTUS/PROXY
STATEMENT") shall be filed as part of the
Registration Statement. ART shall use its best
efforts to have the Registration Statement declared
effective by the SEC under the Securities Act as
promptly as practicable after such filing, and will
promptly thereafter make the Prospectus/Proxy
Statement available to the shareholders of EQK. EQK
shall furnish to ART, and ART shall furnish to EQK,
such information and assistance as the other party or
parties may reasonably request in connection with the
preparation of the Prospectus/Proxy Statement and the
Registration Statement.
5.07. Covenant to Satisfy Conditions. EQK and ART shall
each use their reasonable efforts to insure that the
conditions set forth in Article VI hereof are
satisfied, insofar as such matters are within their
respective control. ART hereby guarantees the
performance by Newco of its obligations hereunder.
5.08. Confidentiality. All information exchanged between
ART, Newco and EQK and their respective
representatives, as well as the existence of
negotiations regarding the Merger, shall be subject
to the terms of, and ART and EQK hereby acknowledge
and affirm their obligations regarding
confidentiality set forth in, their mutual
confidentiality letters dated April 21, 1997 (the
"CONFIDENTIALITY AGREEMENT"). No party shall release
any information regarding this Agreement or the
transactions contemplated hereby without the prior
written consent of each other party hereto, except as
provided in the Confidentiality Agreement.
5.09. Shareholder Meeting of EQK. EQK shall, at a meeting
of its shareholders duly called by its Board of
Trustees to be held as soon as practicable following
execution of this Agreement, submit this Agreement,
the Amended Declaration of Trust and the New Advisory
Agreement to a vote of its shareholders in accordance
with the Declaration of Trust and Massachusetts Law.
LLPM shall vote in favor of the Merger, the Amended
Declaration of Trust and the New Advisory Agreement.
5.10. Information Delivered to Shareholders. EQK shall
submit all shareholder notices, proxy solicitation
material, written consents and other information
(other than the proxy solicitation material included
as part of the Prospectus/Proxy Statement) to Newco
and ART for its written approval (which approval
shall not be unreasonably withheld) at least four
days prior to delivering such materials to EQK's
shareholders. All such materials (including the
proxy solicitation material included in the
Prospectus/Proxy Statement) shall comply with the
Massachusetts Law and all
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<PAGE> 21
applicable state and federal securities Laws
(including, without limitation, the anti-fraud
provisions thereof). Newco and ART shall be provided
with the opportunity to have one or more
representatives attend shareholder meetings, if any,
of EQK.
5.11. Resignation and Election of Trustees. Upon
consummation of the Merger, pursuant to the terms of
each Resignation Agreement (as defined in Section
6.01(s)), ART shall direct and EQK shall cause all of
the members of EQK's current board of trustees to
resign and the related vacancies shall be filled with
(i) two persons designated by ART who are
"independent of management" as such phrase is used in
Section 303.0 of the NYSE Listed Company Manual (such
persons are referred to as the "ART INDEPENDENT
TRUSTEES") and (ii) five persons designated by ART
who may be affiliated with ART or its affiliates
(such five persons are referred to herein as the "ART
AFFILIATED TRUSTEES" and, together with the ART
Independent Trustees, the "ART DESIGNATED TRUSTEES").
The ART Designated Trustees shall constitute the
seven person board of trustees of EQK (the "NEW EQK
BOARD"). As used herein, the term "New EQK Board"
shall include the board of any successor entity to
EQK, including the Surviving Entity. The composition
of the New EQK Board and the procedures pursuant to
which the ART Designated Trustees are nominated and
elected, through filling vacancies or otherwise,
shall be consistent with the requirements of the
Amended Declaration of Trust (as the same may be
amended from time to time), including, without
limitation, requirements related to Unaffiliated
Trustees (as defined in the Amended Declaration of
Trust).
5.12. SEC Filings; Publicity. Prior to the Closing, any
filings with the SEC or written news releases by
either ART or EQK pertaining to this Agreement or the
Merger shall be submitted to the other party for
review and approval prior to filing or release, as
applicable, by that other party and shall be filed or
released only in a form approved by that other party,
provided, however, that in either case (1) the
applicable approval shall not be unreasonably
withheld, and (2) such review and approval shall not
be required of releases by ART or EQK if prior review
and approval would prevent the timely and accurate
dissemination of such SEC filing or press release as
required to comply, in the judgment of counsel, with
any applicable law, rule, or policy.
5.13. Compliance with Applicable Laws. To the extent
legally possible, EQK will take such actions as are
reasonably requested by ART so that EQK and the
Merger is exempt from any requirements of any state
takeover law, whether by action of EQK's Board of
Trustees or otherwise.
5.14. Preservation of Net Operating Losses. ART will use
its reasonable efforts to take or refrain from taking
such actions (including, without limitation, giving
its consent to the amendment of EQK's Declaration of
Trust, to implement ownership restrictions therein)
as are mutually agreeable between EQK and ART to
avoid impairing the availability of EQK's net
operating losses.
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<PAGE> 22
5.15. Listing of ART Shares. Following execution of this
Agreement by EQK, ART shall take such actions as are
necessary and within its control to cause the ART
Shares to become listed, and thereafter continue to
be listed, for trading on the NYSE.
5.16. Expenses. The parties hereto agree that the expenses
of the Merger and the other transactions contemplated
hereby (the "MERGER RELATED EXPENSES") shall be borne
by ART and EQK in accordance with the terms of the
amended and restated cost sharing agreement attached
hereto as EXHIBIT E (the "COST SHARING AGREEMENT").
5.17. Continued Registration of EQK Shares. Following
execution of this Agreement by the parties hereto,
EQK shall refrain from taking any actions which would
result in the deregistration of the EQK Shares under
the Securities Exchange Act of 1934, as amended.
ARTICLE VI
CONDITIONS PRECEDENT
6.01. Conditions Precedent to Obligations of Newco and ART.
The obligations of Newco and ART under this Agreement
are subject to the satisfaction or, unless prohibited
by law, the waiver by Newco and ART, at or before the
Closing, of each of the following conditions:
(a) Representations and Warranties. The
representations and warranties of
EQK contained herein shall be true,
complete and accurate in all
material respects as of the date
when made and at and as of the
Closing Date (with such updating of
the List of Exceptions set forth on
EXHIBIT D-1 as shall be necessary or
appropriate) as though such
representations, warranties and
statements were made at and as of
such date.
(b) Performance. EQK and LLPM shall
have performed and complied in all
material respects with all
agreements, obligations and
conditions required by this
Agreement to be so performed or
complied with by it at or prior to
the Closing.
(c) No Injunction. On the Closing Date,
there shall be no effective
injunction, writ, preliminary
restraining order or any order of
any nature issued by a court of
competent jurisdiction restraining
or prohibiting the consummation of
the Merger or the other transactions
contemplated hereby. There shall
not be threatened, instituted or
pending any suit, action,
investigation, inquiry or other
proceeding by or before any court or
governmental or other regulatory or
administrative agency or commission
requesting or looking toward an
order, judgment or decree that (i)
restrains or prohibits the
consummation of the transactions
contemplated hereby, (ii) would
adversely affect ART's ability to
exercise control over the Surviving
Entity after the Closing, or (iii)
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<PAGE> 23
would materially and adversely affect
the business, operations, condition
(financial or otherwise),
liabilities, EQK Property or
earnings of the Surviving Entity.
(d) Officers' Certificate. EQK shall
have delivered to Newco and ART a
certificate, dated the Closing Date,
executed by its Chief Executive
Officer and Chief Financial Officer
certifying the fulfillment of the
conditions specified in Section
6.01(a) and (b) hereof.
(e) Secretary's Certificate. EQK shall
have delivered to Newco and ART a
certificate, dated the Closing Date,
executed by its Secretary or an
Assistant Secretary and certifying
as to EQK's Declaration of Trust,
Trustee Regulations, enabling
resolutions, incumbency of officers
and other reasonably related
matters.
(f) Opinions of Counsel. Newco and ART
shall have received an opinion,
dated the Closing Date, of Palmer &
Dodge, special Massachusetts counsel
to EQK, in a form and substance that
is reasonably satisfactory to Newco
and ART.
(g) Documents. All documents to be
delivered by EQK to Newco and ART
at the Closing shall be duly
executed and in form and substance
reasonably satisfactory to Newco
and ART.
(h) Consents and Approvals. All
licenses, permits, consents,
approvals and authorizations of all
third parties and governmental
bodies and agencies (other than
approvals from EQK's Board of
Trustees and shareholders, which are
provided for elsewhere in this
Agreement) shall have been obtained
which are necessary, in the
reasonable determination of counsel
to Newco and ART, in connection with
(a) the execution and delivery by
each of the parties, as appropriate,
of this Agreement, (b) the
consummation by each of the parties
of the transactions contemplated
hereby or thereby or (c) the conduct
by the Surviving Entity of the
business of EQK (the "EQK Business")
substantially as conducted on the
date hereof.
(i) Non-Foreign Status. At or prior to
Closing, EQK shall have delivered to
Newco and ART a statement certifying
that it is not a foreign person,
which statement shall comply with
the requirements of Treasury
regulation Section 1.1445-2(b).
(j) Intentionally Omitted.
(k) Shareholder Approval. Shareholders
of EQK representing at least three-
quarters of the issued and
outstanding EQK Shares shall have
duly approved
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<PAGE> 24
this Agreement, the Amended
Declaration of Trust and the New
Advisory Agreement.
(l) Dissenters Rights. At or prior to
Closing, holders of no more than 3%
of the shareholders of outstanding
EQK Shares will have notified EQK
that they intend to seek to exercise
dissenter's rights in connection
with the Merger.
(m) Block Purchase. At or prior to
Closing, the Block Purchase shall
have been consummated.
(n) Standstill Agreements. At or prior
to Closing, each holder (other than
ART or its affiliates, LLPM,
Greenspring, Summit, Sutter and, if
the Halperin Purchase is
consummated, Mr. Halperin) of five
percent (5%) or more of the EQK
Shares (each, a "5% Holder") shall
have executed an agreement (a
"Standstill Agreement") in
substantially the form attached
hereto as EXHIBIT F restricting the
rights of such 5% Holder to sell any
of its EQK Shares or purchase any
additional EQK Shares for a period
of 42 months after the Closing Date.
(o) Intentionally Omitted.
(p) Board Resignations. At or prior to
Closing, ART shall have received
written resignations from all of the
members of EQK's current board of
trustees.
(q) NYSE Listing. The ART Shares shall
have been authorized for listing on
the NYSE, subject to official notice
of issuance.
(r) No Legal Impediment; No Stop Order.
No statute, rule, regulation, order,
injunction or decree shall have been
enacted, entered, promulgated or
enforced by any court,
administrative agency or commission
or other governmental authority or
instrumentality which prohibits,
restricts or makes illegal the
consummation of the Merger. The
Registration Statements shall have
been declared effective by the SEC
and no stop order suspending the
effectiveness thereof shall have
been issued.
(s) Governmental Authorizations. All
required material governmental
authorizations, permits, consents,
orders or approvals which do not
impose terms or conditions that
could reasonably be expected to have
a material adverse effect on EQK or
ART have been received.
(t) EQK Shares. The number of
outstanding EQK Shares being
9,632,212 and no additional EQK
Shares or other equity interests or
or any option, warrant, right or
other security exercisable for,
convertible into or exchangable for
EQK Shares or other equity interests
in EQK being issued since June 30,
1998.
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<PAGE> 25
(u) No Adverse Change. EQK operating in
all respects in its ordinary course
of business without any material
adverse change in its business,
properties or financial condition
subsequent to the date hereof.
(v) Intentionally Omitted.
(w) Acquisition and Sale of Property.
(i) EQK shall have acquired the New
Property from ART pursuant to
the Purchase and Sale
Agreement.
(ii) EQK shall have disposed of the
Mall, paid off the related
mortgages thereon, and
distributed the net proceeds
of such disposition to the
EQK Shareholders.
(x) Other. Newco and ART shall have
received such other documents or
certificates as Newco and ART may
reasonably have requested,
including, without limitation,
certificates of good standing with
respect to EQK from the appropriate
authority in its jurisdiction of
organization and certificates of
good standing with respect to EQK
from the appropriate authority in
each jurisdiction in which it is
qualified to do business.
6.02. Conditions Precedent to Obligations of EQK. The
obligations of EQK under this Agreement are subject
to the satisfaction or, unless prohibited by law, the
waiver by EQK at or before the Closing, of each of
the following conditions:
(a) Representations and Warranties.
The representations and warranties
of Newco and ART contained herein
shall be true, complete and accurate
in all material respects as of the
date when made and at and as of the
Closing Date (with such updating of
the List of Exceptions set forth on
EXHIBIT D-2 as shall be necessary or
appropriate) as though such
representations and warranties were
made at and as of such date.
(b) Performance. Newco and ART shall
have performed and complied in all
material respects with all
agreements, obligations and
conditions required by this
Agreement to be so performed or
complied with by them at or prior to
the Closing.
(c) No Injunction. On the Closing Date,
there shall be no effective
injunction, writ, preliminary
restraining order or any order of
any nature issued by a court of
competent jurisdiction restraining
or prohibiting consummation of the
Merger or the other transactions
contemplated hereby. There shall
not be threatened, instituted or
pending any suit, action,
investigation, inquiry or other
proceeding by or before any court or
governmental or other regulatory
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<PAGE> 26
or administrative agency or
commission requesting or looking
toward an order, judgment or decree
that restrains or prohibits the
consummation of the transactions
contemplated hereby.
(d) Officers' Certificates. Each of
Newco and ART shall have delivered
to EQK a certificate, dated the
Closing Date and executed by its
Chief Executive Officer and Chief
Financial Officer certifying the
fulfillment of the conditions
specified in Sections 6.02(a) and
(b) hereof.
(e) Secretary's Certificates. Each of
Newco and ART shall have delivered
to EQK a certificate, dated the
Closing Date, executed by its
Secretary or Assistant Secretary and
certifying as to its organizational
documents, enabling resolutions,
incumbency of officers and other
related matters.
(f) Opinions of Counsel. EQK shall have
received such opinions, if any, as
they have reasonably requested in
writing to Newco and ART regarding
Newco and ART, in form and substance
satisfactory to EQK.
(g) Board Approval. The Board of
Directors of ART and the Board of
Trustees of EQK shall have duly
approved the Merger, the Amended
Declaration of Trust, the New
Advisory Agreement and the other
transactions contemplated hereby,
and the Board of Trustees shall not
subsequently have made a
determination (a "Negative
Determination") in the exercise of
its fiduciary duty that it can no
longer recommend approval of the
Merger and the related transactions
to the holders of EQK Shares.
(h) Shareholder Approval. Shareholders
of EQK representing at least three-
quarters of the issued and
outstanding EQK Shares shall have
duly approved this Agreement, the
Amended Declaration of Trust and the
New Advisory Agreement.
(i) Dissenters Rights. At or prior
to Closing, holders of no more than
3% of the outstanding EQK Shares
will have notified EQK that they
intend to seek to exercise
dissenters rights in connection with
the Merger.
(j) Member Approval. The members of
Newco shall have duly approved the
Merger, and the other transactions
contemplated hereby.
(k) Documents. All documents to be
delivered by each of Newco and ART
to EQK at the Closing shall be duly
executed and in form and substance
reasonably satisfactory to EQK.
(l) Consents and Approvals. All
licenses, permits, consents,
approvals and authorizations of all
third parties and governmental
bodies and agencies (other than
approvals from ART's Board of
Directors and Newco's members,
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<PAGE> 27
which are provided for elsewhere in
this Agreement) shall have been
obtained which are necessary, in the
reasonable determination of counsel
to EQK, in connection with (a) the
execution and delivery by each of the
parties, as appropriate, of this
Agreement, (b) the consummation by
each of the parties of the
transactions contemplated hereby or
thereby or (c) the conduct by the
Surviving Entity of the EQK Business
substantially as conducted on the
date hereof.
(m) Block Purchase. At or prior to
Closing, the Block Purchase shall
have been consummated.
(n) Acquisition and Sale of Property.
(i) EQK shall have acquired the New
Property from ART pursuant to
the Purchase and Sale
Agreement.
(ii) EQK shall have disposed of the
Mall, paid off the related
mortgages thereon, and
distributed the net proceeds
of such disposition to the
EQK Shareholders.
(o) Registration Rights Agreement. The
Registration Rights Agreement, in
form and substance reasonably
satisfactory to LLPM, shall have
been duly executed by ART and LLPM.
(p) No Legal Impediment; No Stop Order.
No statute, rule, regulation, order,
injunction or decree shall have been
enacted, entered, promulgated or
enforced by any court,
administrative agency or commission
or other governmental authority or
instrumentality which prohibits,
restricts or makes illegal the
consummation of the Merger. The
Registration Statements shall have
been declared effective by the SEC
and no stop order suspending
effectiveness thereof shall have
been issued by the Commission.
(q) NYSE Listing. The ART Shares shall
have been authorized for listing on
the NYSE, subject to official notice
of issuance.
(r) Governmental Authorizations. All
required material governmental
authorizations, permits, consents,
orders or approvals which do not
impose terms or conditions that
could reasonably be expected to have
a material adverse effect on EQK or
ART have been received.
(s) No Adverse Change. ART, operating
in all respects in its ordinary
course of business without any
material adverse change in its
business, properties or financial
condition subsequent to the date
hereof.
(t) Intentionally Omitted.
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<PAGE> 28
(u) Other. EQK shall have received such
other documents or certificates as
EQK may reasonably have requested,
including, without limitation,
certificates of good standing with
respect to Newco and ART from the
appropriate authority in its
jurisdiction of organization and
certificates of good standing with
respect to Newco and ART from the
appropriate authority in each
jurisdiction in which it is
qualified to do business.
ARTICLE VII
TERMINATION, AMENDMENT, WAIVER
7.01. Termination of Agreement. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual agreement of EQK, Newco
and ART, prior to the Closing;
(b) by Newco or ART, on or after
December 15, 1998, if any of the
conditions provided in Section 6.01
hereof have not been met or, to the
extent permitted by applicable law,
have not been waived in writing by
Newco and ART prior to such date;
(c) by EQK, on or after December 15,
1998, if any of the conditions
provided in Section 6.02 hereof have
not been met or, to the extent
permitted by applicable law, have
not been waived in writing by EQK
prior to such date;
(d) by EQK upon a Negative
Determination;
(e) pursuant to Section 5.05 hereof; or
(f) by EQK if the EQK Board determines,
in its sole discretion, that
compliance with this Agreement is
reasonably likely to (i) materially
impair or delay its ability to
dispose of the Mall (regardless of
the form of such disposition), or
(ii) result in a material reduction
in the consideration that would be
received by EQK or its shareholders
in connection with such disposition.
7.02. Procedure Upon Termination. In the event of
termination by EQK, Newco or ART pursuant to Section
7.01 hereof, written notice thereof shall promptly be
given to the other parties and the transactions
contemplated by this Agreement shall be terminated,
without further action by any party. If the
transactions contemplated by this Agreement are
terminated as provided herein:
(a) each of EQK, Newco and ART shall
return all documents, work papers
and other material of any other
party relating to the transactions
contemplated
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<PAGE> 29
hereby, whether so obtained before or
after the execution hereof, to the
party furnishing the same; and
(b) all confidential information
received by EQK, Newco or ART with
respect to the business of any other
party or its subsidiaries or
affiliates shall be treated in
accordance with Section 5.08 hereof,
and Section 5.08 hereof shall remain
in full force and effect
notwithstanding the termination of
this Agreement.
7.03. Amendment. No amendment to this Agreement shall be
effective unless it shall be in writing and signed by
each of the parties hereto.
7.04. Waiver. At any time prior to the Closing Date, Newco
or ART may (1) waive compliance with any of the
agreements or conditions contained herein or (2)
extend the time for the performance of any of the
obligations or other acts of EQK. In addition, at
any time prior to the Closing Date, EQK may (1) waive
compliance with any of the agreements or conditions
contained herein or (2) extend the time for the
performance of any of the obligations or other acts
of Newco or ART. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed
on behalf of such party.
ARTICLE VIII
MISCELLANEOUS
8.01. Survival. The representations, warranties, covenants
and agreements of EQK shall survive any investigation
made by or on behalf of any party hereto but shall
not survive the Closing; provided however, that the
covenants of EQK set forth in Section 8.04
(Indemnification) shall continue so long as ART owns
EQK Shares, unless the approval of holders of a
majority of EQK Shares (other than those EQK Shares
held by ART or its affiliates) is obtained for the
termination of any such covenant. The
representations, warranties, covenants and agreements
of ART and Newco contained herein shall survive for
the longer of three (3) years from the Closing Date
or one (1) year after they were to have been
performed and were capable of performance; provided
that Sections 5.11 (Resignation and Election of
Trustees), 5.14 (Preservation of Net Operating
Losses), and 5.15 (Listing of ART Shares) shall
continue so long as ART owns EQK Shares, unless and
until (i) the approval of holders of a majority of
EQK Shares (other than those EQK Shares held by ART
or its affiliates) is obtained for the termination of
any such covenant, or (ii) ART acquires 80% or more
of the then outstanding EQK Shares.
8.02. Acknowledgment by ART. Assuming that market
conditions, industry conditions and EQK's business or
financial conditions do not suffer adversely in the
interim, ART hereby acknowledges that it is the
present intention (but not the obligation) of ART to
seek to acquire the remaining outstanding EQK Shares
at some time after the
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<PAGE> 30
third anniversary of the Closing Date for
consideration of 0.0486 ART Shares per then
outstanding EQK Share.
8.03. Commissions. No party hereto has employed any
investment banker, broker, finder or similar agent in
connection with any transaction contemplated by this
Agreement.
8.04. Indemnification. ART and BCM, jointly and severally,
agree to indemnify and hold harmless EQK and its
officers, directors, trustees, employees and
controlling persons from and against any and all
claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments, and any other
costs, fees and expenses that EQK may sustain
directly resulting from (i) the breach of any of the
covenants or obligations of ART or BCM hereunder, or
(ii) any claims by third parties arising from any
untrue statement or alleged untrue statement of a
material fact contained (or incorporated by
reference) in the Prospectus/Proxy Statement, the
Registration Statement or any amendment with respect
thereto (collectively, the "OFFERING DOCUMENTS"), or
the omission or alleged omission therefrom of a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, with respect to any information provided
by ART or BCM in connection with the Merger. EQK
agrees to indemnify and hold harmless each of ART and
BCM and their respective officers, directors,
trustees, employees and controlling persons from and
against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments,
and any other costs, fees and expenses that ART or
BCM may sustain directly resulting from any claims by
third parties arising from any untrue statement or
alleged untrue statement of a material fact contained
(or incorporated by reference) in the Offering
Documents, or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements therein
not misleading, with respect to any information
provided by EQK to ART in connection with the Merger.
In addition, LLPM agrees to indemnify and hold
harmless each of ART and BCM and their respective
officers, directors, trustees, employees and
controlling persons from and against any and all
claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments, and any other
costs, fees and expenses that ART or BCM may sustain
directly resulting from any claims by third parties
arising from any untrue statement or alleged untrue
statement of a material fact contained (or
incorporated by reference) in the Offering Documents,
or the omission or alleged omission therefrom of a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, with respect to any information provided
by LLPM in connection with the Merger.
8.05. Definition of Knowledge. For the purpose of this
Agreement and the Exhibits and Appendices to this
Agreement, the phrases "to the best knowledge" of any
party and "known" and words of like effect shall mean
to the knowledge of such party and any officer,
director or manager of any such party, as such
knowledge has been, or should have been, obtained in
the performance of their duties in the ordinary
course of business in a prudent and diligent manner,
which knowledge shall also include information
existing in the records and files of such party.
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<PAGE> 31
8.06. Successors and Assigns. No party shall have the
right to assign all or any part of its interest in
this Agreement without the prior written consent of
the other parties, and any attempted transfer without
such consent shall be null and void.
8.07. No Third-Party Benefit. Nothing in this Agreement
shall be deemed to create any right or obligation in
any Person not a party hereto and this Agreement
shall not be construed in any respect to be a
contract or agreement in whole or in part for the
benefit of or binding upon any Person not a party
hereto, except that the holders of EQK Shares shall
be third party beneficiaries of the obligations of
ART after the Closing Date.
8.08. Entire Agreement; Amendment. This Agreement, the
Exhibits and the Appendices hereto constitute the
entire agreement among the parties hereto with
respect to the transactions contemplated herein and
supersede all prior oral and written agreements,
memoranda, understandings and undertakings between
the parties hereto relating to the subject matter
hereof. This Agreement may not be modified, amended,
altered or supplemented except by a written
instrument executed and delivered by each of the
parties hereto.
8.09. Reformation and Severability. If any provision of
this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective
during the term hereof and such illegality,
invalidity or unenforceability does not result in a
material failure of consideration, then:
(a) in lieu of such illegal, invalid or
unenforceable provision, there shall
be added automatically as a part of
this Agreement a provision as
similar in terms to such illegal,
invalid or unenforceable provision
as may be possible and be legal,
valid and enforceable; and
(b) the legality, validity and
enforceability of the remaining
provisions hereof shall not in any
way be affected or impaired thereby.
8.10. Notices. All notices, claims, certificates,
requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed
(registered or certified mail, postage prepaid,
return receipt requested) as follows:
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<PAGE> 32
If to BCM, ART or Newco:
c/o Basic Capital Management, Inc.
10670 N. Central Expressway
Suite 600
Dallas, Texas 75231
Attention: Robert A. Waldman, Esq.
with a copy to:
Andrews & Kurth L.L.P.
1717 Main Street
Suite 3700
Dallas, Texas 75201
Attention: Thomas R. Popplewell, Esq.
If to EQK or LLPM:
c/o Lend Lease Portfolio Management, Inc.
5775 Peachtree Dunwoody Road
Suite 200-D
Atlanta, Georgia 30342-1505
Attention: William G. Brown, Jr.
with a copy to:
Wolf, Block, Schorr and Solis-Cohen LLP
Twelfth Floor, Packard Building
Philadelphia, Pennsylvania 19102-2678
Attention: Jason M. Shargel, Esq.
or to such other address as the person to whom notice
is to be given may have previously furnished to the
other in writing in the manner set forth above,
provided that notice of a change of address shall be
deemed given only upon receipt.
8.11. Discretionary Actions. Any reference in this
Agreement to the exercise of discretion or a
determination by EQK or the EQK Board shall mean the
reasonable exercise of such discretion or the making
of such determination in good faith.
8.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT
REGARD TO ITS CONFLICTS OF LAW RULES.
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<PAGE> 33
8.13. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed
an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by parties hereto on the date first above written.
AMERICAN REALTY TRUST, INC.
By: /s/ Robert A. Waldman
----------------------------------------
Name: Robert A. Waldman
--------------------------------------
Title: Senior Vice President
--------------------------------------
ART NEWCO, LLC
By: American Realty Trust, Inc., as Manager
By: /s/ Robert A. Waldman
----------------------------------------
Name: Robert A. Waldman
--------------------------------------
Title: Senior Vice President
--------------------------------------
BASIC CAPITAL MANAGEMENT, INC.
By: /s/ Robert A. Waldman
----------------------------------------
Name: Robert A. Waldman
--------------------------------------
Title: Senior Vice President
--------------------------------------
EQK REALTY INVESTORS I
By: /s/ William G. Brown, Jr.
-----------------------------------------
Name: William G. Brown, Jr.
---------------------------------------
Title: Vice President
--------------------------------------
LEND LEASE PORTFOLIO MANAGEMENT, INC.
By: /s/ William G. Brown, Jr.
-----------------------------------------
Name: William G. Brown, Jr.
---------------------------------------
Title: Vice President
--------------------------------------
<PAGE> 34
EXHIBIT A
Form of Amended Declaration of Trust
[begins on next page]
<PAGE> 35
- -------------------------------------------------------------------------------
EXHIBIT A
ART REALTY INVESTORS I
(FORMERLY EQK REALTY INVESTORS I)
--------------------
SECOND
AMENDED AND RESTATED
DECLARATION OF TRUST
--------------------
AS EXECUTED AND AMENDED AS OF [___________], 1998
- -------------------------------------------------------------------------------
<PAGE> 36
INDEX
<TABLE>
<CAPTION>
Page
ARTICLE I
THE TRUST DEFINITIONS
<S> <C> <C>
1.1 Name..............................................................2
1.2 Places of Business................................................2
1.3 Nature of Trust...................................................2
1.4 Definitions.......................................................3
ARTICLE II
TRUSTEES
2.1 Number, Term of Office and Qualifications of Trustees.............7
2.2 Compensation and Other Remuneration...............................7
2.3 Resignation, Removal and Death of Trustees........................7
2.4 Vacancies.........................................................8
2.5 Successor and Additional Trustees.................................8
2.6 Actions by Trustees...............................................9
2.7 Certification of Changes in Trustees..............................9
2.8 Committees.......................................................10
ARTICLE III
TRUSTEES' POWERS
3.1 Power and Authority of Trustees..................................10
3.2 Specific Powers and Authority....................................10
3.3 Trustees' Regulations............................................15
3.4 Additional Powers................................................15
ARTICLE IV
ADVISOR
4.1 Employment of Advisor............................................15
4.2 Term.............................................................16
4.3 Other Activities of Advisor......................................16
4.4 Advisor Compensation.............................................17
</TABLE>
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<PAGE> 37
<TABLE>
<S> <C> <C>
4.5 Annual Total Operating Expenses..............................................18
ARTICLE V
INVESTMENT POLICY
5.1 Statement of Policy..........................................................18
5.2 Prohibited Investments and Activities........................................19
5.3 Appraisals...................................................................20
ARTICLE VI
THE SHARES AND SHAREHOLDERS
6.1 Shares.......................................................................20
6.2 Legal Ownership of Trust Estate..............................................21
6.3 Shares Deemed Personal Property..............................................21
6.4 Share Record; Issuance and Transferability of Shares.........................21
6.5 Dividends or Distributions to Shareholders...................................22
6.6 Transfer Agent, Dividend Disbursing Agent and Registrar......................22
6.7 Shareholders' Meetings.......................................................22
6.8 Proxies......................................................................23
6.9 Reports to Shareholders......................................................23
6.10 Fixing Record Date...........................................................24
6.11 Notice to Shareholders.......................................................24
6.12 Shareholders' Disclosures; Trustees' Right to Refuse to Transfer Shares;
Limitation on Holdings; Redemption of Shares.................................24
6.13 Issuance of Shares...........................................................25
6.14 Ownership Limitation.........................................................26
6.15 Changes in Ownership Limit...................................................26
6.16 Waivers by Board.............................................................27
ARTICLE VII
LIABILITY OF TRUSTEES, SHAREHOLDERS, OFFICERS
EMPLOYEES AND AGENTS, AND OTHER MATTERS
7.1 Exculpation of Trustees, Officers, Employees and Agents......................27
7.2 Limitation of Liability of Shareholders, Trustees, Officers, Employees
and Agents...................................................................27
7.3 Express Exculpatory Clauses and Instruments..................................28
7.4 Indemnification and Reimbursement of Trustees, Officers, Employees
and Agents...................................................................28
</TABLE>
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<PAGE> 38
<TABLE>
<S> <C> <C>
7.5 Right of Trustees, Officers, Employees and Agents to Own Shares or
Other Property and to Engage in Other Business.................................29
7.6 Transactions Between Trustees, Officers, Employees or Agents and the Trust.....29
7.7 Restriction of Duties and Liabilities..........................................31
7.8 Persons Dealing with Trustees, Officers, Employees or Agents...................31
7.9 Reliance.......................................................................31
7.10 Income Tax Status..............................................................31
ARTICLE VIII
DURATION, AMENDMENT AND TERMINATION OF TRUST
8.1 Duration of Trust..............................................................32
8.2 Termination of Trust...........................................................32
8.3 Amendment Procedure............................................................33
8.4 Transfer to Successor; Merger..................................................33
ARTICLE IX
MISCELLANEOUS
9.1 Applicable Law.................................................................34
9.2 Index and Headings for Reference Only..........................................34
9.3 Successors in Interest.........................................................34
9.4 Inspection of Records..........................................................34
9.5 Counterparts...................................................................34
9.6 Provisions of the Trust in Conflict with Law or Regulations; Severability......35
9.7 Certifications.................................................................35
</TABLE>
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<PAGE> 39
SECOND AMENDED AND RESTATED
DECLARATION OF TRUST
of
ART REALTY INVESTORS I
(formerly EQK Realty Investors I)
Executed as of [_____________], 1998
--------------------
This is a Second Amended and Restated Declaration of Trust made as of
the date set forth above by the undersigned Trustees. The Trust was formed
pursuant to a Declaration of Trust executed as of October 8, 1984 which was
filed with the Secretary of State of the Commonwealth of Massachusetts (the
"Secretary of State") on October 9, 1984 (the "Original Declaration of Trust").
The Original Declaration of Trust was amended and restated by an Amended and
Restated Declaration of Trust dated as of February 27, 1985 which was filed with
the Secretary of State of the Commonwealth of Massachusetts on March 4, 1985,
and was further amended by an amendment thereto dated as of March 5, 1986 which
was filed with the Secretary of State on April 14, 1986. The Original
Declaration of Trust, as so amended, is hereby referred to as the "Existing
Declaration of Trust". The undersigned desire to continue the Trust on the terms
and for the purposes hereinafter stated. They desire that such Trust continue to
qualify as a "real estate investment trust" under the REIT Provisions of the
Internal Revenue Code. They may hereafter acquire, hold, manage and dispose of
certain assets as Trustees in the manner hereinafter stated. It is proposed that
the beneficial interest in the Trust assets shall be divided into transferable
Shares of Beneficial Interest, evidenced by certificates therefor, as
hereinafter provided. Accordingly, the undersigned hereby declare that they will
hold any and all property of every type and description which they are acquiring
or may hereafter acquire as Trustees, together with the proceeds thereof, in
trust, to manage and dispose of the same for the benefit of the holders from
time to time of the Shares of Beneficial Interest (as more specifically defined
below, the "Shareholders") previously issued and to be issued hereunder in the
manner and subject to the stipulations contained herein.
This Second Amended and Restated Declaration of Trust amends and
restates, as of the date hereof, the Existing Declaration of Trust in its
entirety, and has been approved by the Shareholders concurrently and in
connection with the merger (the "Merger") of ART Newco, LLC, a Massachusetts
limited liability company ("ART Newco"), and indirect, wholly owned subsidiary
of American Realty Trust, Inc., a Georgia corporation ("ART"), with and into the
Trust, with the Trust as the surviving entity.
The undersigned do hereby (i) certify, pursuant to Section 8.3 of the
Existing Declaration of Trust, that at a meeting of the Shareholders of the
Trust duly called and held on [____________], 1998, at which meeting a quorum
was present and acting throughout, the holders of at least three-quarters of the
outstanding Shares of Beneficial Interest of the Trust entitled to vote thereon
voted that the Existing Declaration of Trust be amended in certain respects as
reflected herein and authorized the filing with the Secretary of State of the
Commonwealth of Massachusetts of a Second Amended and Restated Declaration of
Trust restating in a single document the Existing Declaration
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<PAGE> 40
of Trust as amended at such meeting; and (ii) further certify that the Trustees
of the Trust, including a majority of the Unaffiliated Trustees, by a written
consent dated as of [________], 1998, duly authorized the filing with the
Secretary of State of the Commonwealth of Massachusetts of this SECOND AMENDED
AND RESTATED DECLARATION OF TRUST made as of [_____________], 1998, which
restates the Existing Declaration of Trust, as so amended, in its entirety to
read as set forth herein.
ARTICLE I
THE TRUST DEFINITIONS
1.1 Name. The name of the Trust created by this Second Amended and
Restated Declaration of Trust shall be "ART Realty Investors I" and, so far as
may be practicable, the Trustees shall conduct the Trust's activities, execute
all documents and sue or be sued under that name, which name (and the word
"Trust" wherever used in this Declaration of Trust, except where the context
otherwise requires) shall refer to the Trustees collectively but not
individually or personally or to the officers, agents, employees or Shareholders
of the Trust or of such Trustees. Under circumstances under which the Trustees
determine that the use of such name is not practicable or under circumstances in
which the Trustees are contractually bound to change the name, they may use such
other designation or they may adopt another name under which the Trust may hold
property or conduct its activities.
If Basic Capital Management, Inc., a Nevada corporation ("BCM"), or any
subsidiary, affiliate or successor of such corporation shall cease, for any
reason, to render to the Trust the services of Advisor, as defined in Section
1.4 hereof, to be rendered pursuant to the contract referred to in Article IV
hereof, and any renewal or extension of such contract, then the Trustees shall,
upon request of BCM or such successor and without any vote or consent of the
Shareholders being required, promptly amend this Declaration of Trust to change
its name to one which does not, in the reasonable opinion of BCM, include any
reference to BCM or any of its Affiliates.
1.2 Places of Business. The Trust shall maintain an office in
Massachusetts at 84 State Street, c/o Prentice-Hall Corporation System, Inc.,
Boston, Massachusetts 02109, or such other place in Massachusetts as the
Trustees may determine from time to time. The Trust may have such other offices
or places of business within or without the Commonwealth of Massachusetts as the
Trustees may from time to time determine.
1.3 Nature of Trust. The Trust shall be of the type commonly termed a
Massachusetts business trust. It is intended that the Trust shall carry on a
business as a "real estate investment trust" as described in the REIT Provisions
of the Internal Revenue Code. The Trust is not intended to be, shall not be
deemed to be, and shall not be treated as a general partnership, limited
partnership, joint venture, corporation or joint stock company (but nothing
herein shall preclude the Trust from being treated for tax purposes as an
association under the REIT Provisions of the Internal Revenue Code) nor shall
the Trustees or Shareholders or any of them for any purposes be, nor be deemed
to
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<PAGE> 41
be, nor be treated in any way whatsoever to be, liable or responsible hereunder
as partners or joint venturers. The relationship of the Shareholders to the
Trustees shall be solely that of beneficiaries of the Trust in accordance with
the rights conferred upon them by this Declaration.
1.4 Definitions. The terms defined in this Section 1.4 wherever used in
this Declaration shall, unless the context otherwise requires, have the
respective meanings hereinafter specified. Whenever the singular number is used
in this Declaration and when required by the context, the same shall include the
plural, and the masculine gender shall include the feminine and neuter genders.
Where applicable, calculations to be made pursuant to any such definition shall
be made in accordance with generally accepted accounting principles as in effect
on the date hereof except as otherwise provided in such definition.
(a) Advisor. "Advisor" shall mean the Person employed by the
Trustees in accordance with the provisions of Article IV.
(b) Affiliate. "Affiliate" shall mean, as to any Person, (i)
any other Person directly or indirectly controlling, controlled by or
under common control with such Person, (ii) any other Person that owns
beneficially, directly or indirectly, five percent (5%) or more of the
outstanding capital stock, shares or equity interests of such Person,
or (iii) any officer, director, employee, general partner or trustee of
such Person or of any Person controlling, controlled by or under common
control with such Person (excluding trustees and persons serving in
similar capacities who are not otherwise an Affiliate of such Person).
(c) Affiliated Trustee. "Affiliated Trustee" shall mean a
Trustee who is not an Unaffiliated Trustee.
(d) Annual Meeting of Shareholders. "Annual Meeting of
Shareholders" shall mean the meeting described in the first sentence of
Section 6.7.
(e) Annual Report. "Annual Report" shall have the meaning set
forth in Section 6.9(a).
(f) Average Invested Assets. "Average Invested Assets" for any
period shall mean the average of the values of the Invested Assets on
the last day of each month during such period.
(g) Book Value. "Book Value" of an asset or assets shall mean
the value of such asset or assets of the Trust on the books of the
Trust, without deduction for depreciation or other asset valuation
reserves and without deduction for mortgages or other security
interests to which such asset or assets are subject, except that no
asset shall be valued at more than its fair market value as determined
by the Trustees.
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<PAGE> 42
(h) Controlling Shareholder. "Controlling Shareholder" shall
mean, subsequent to the Merger, ART.
(i) Declaration. "Declaration" or "this Declaration" shall
mean this Second Amended and Restated Declaration of Trust, as amended,
restated or modified from time to time. References in this Declaration
to "herein" and "hereunder" shall be deemed to refer to this
Declaration and shall not be limited to the particular text, article or
section in which such words appear.
(j) Internal Revenue Code. "Internal Revenue Code" shall mean
the Internal Revenue Code of 1986, as now enacted or hereafter amended,
or successor statutes.
(k) Invested Assets. "Invested Assets" shall mean the Book
Value of all the Real Estate Investments of the Trust.
(l) Mortgage Loans. "Mortgage Loans" shall mean notes,
debentures, bonds and other evidences of indebtedness or obligations
which are negotiable or nonnegotiable and which are secured or
collateralized by Mortgages.
(m) Mortgages. "Mortgages" shall mean mortgages, deeds of
trust or other security interests in Real Property or in rights or
interests, including leasehold interests, in Real Property.
(n) Net Income. "Net Income" for any period shall mean the net
income of the Trust (calculating the net income of the Trust from any
partnership, joint venture or other form of indirect ownership as if
the Trust directly received its proportionate share of such entity's
income, gains, expenses and losses, including non-cash charges and
imputed interest) for such period (i) excluding realized gains and
losses from the disposition of the Trust assets (after attributing to
such disposition the taxes and fees paid in connection therewith); (ii)
before deducting additions to reserves or provisions for depreciation,
amortization, provision for bad debts and other similar noncash charges
and imputed interest; (iii) less the amount of any bad debts actually
charged to the provision therefor.
(o) Ownership Limit. "Ownership Limit" shall have the meaning
set forth in Section 6.14.
(p) Permitted Investments. "Permitted Investments" shall mean
the types of investments specified in Section 5.1.
(q) Person. "Person" shall mean and include individuals,
corporations, limited liability companies, limited partnerships,
general partnerships, joint stock companies or associations, joint
ventures, associations, companies, trusts, banks, trust companies, land
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<PAGE> 43
trusts, business trusts, or other entities and governments and agencies
and political subdivisions thereof.
(r) Real Property. "Real Property" shall mean and include
land, leasehold interests (including but not limited to interests of a
lessor or lessee therein), rights and interests in land, and any
buildings, structures, improvements, furnishings, fixtures and
equipment located on or used in connection with land, leasehold
interests or rights in land or interests therein, but does not include
investments in Mortgages, Mortgage Loans or interests therein.
(s) REIT. "REIT" shall mean a real estate investment trust as
defined in the REIT Provisions of the Internal Revenue Code.
(t) REIT Provisions of the Internal Revenue Code. "REIT
Provisions of the Internal Revenue Code" shall mean Parts II and III of
Subchapter M of Chapter 1 of Subtitle A of the Internal Revenue Code,
and regulations thereunder and rulings with respect thereto.
(u) Securities. "Securities" shall mean any stock, shares,
voting trust certificates, bonds, debentures, notes or other evidences
of indebtedness or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations
in temporary or interim certificates for, receipts for, guarantees of,
or warrants, options or rights to subscribe to, purchase or acquire any
of the foregoing.
(v) Shareholders. "Shareholders" shall mean as of any
particular time all holders of record of outstanding Shares at such
time.
(w) Shares. "Shares" shall mean the transferable Shares of
Beneficial Interest, without par value, of the Trust as described in
Section 6.1.
(x) Total Assets. "Total Assets" shall mean the Book Value of
all the assets of the Trust, as such Book Value appears on the most
recent quarterly balance sheet of the Trust.
(y) Total Operating Expenses. "Total Operating Expenses" for
any period shall mean all operating expenses (including additional
expenses paid directly or indirectly by the Trust to the Advisor,
Affiliates of the Advisor or third parties based upon their
relationship with the Trust) including loan administration, servicing,
engineering, inspection and all other expenses paid by the Trust,
exclusive of (i) interest and discounts, (ii) taxes and license fees,
(iii) expenses connected directly with the issuance, sale and
distribution, or listing on a stock exchange, of Securities of the
Trust, including without limitation underwriting and brokerage
discounts and commissions, private placement fees and expenses, legal
and accounting costs, printing, engraving and mailing costs, and
listing and registration fees; (iv) expenses
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connected directly with the acquisition, disposition, operation or
ownership of Trust assets, including without limitation costs of
foreclosure; maintenance, repair and improvement of property;
maintenance and protection of the lien of mortgages; property
management fees; legal fees; premiums for insurance on property owned
by or mortgaged to the Trust; taxes; brokerage and acquisition fees and
commissions; appraisal fees; title insurance and abstract expenses;
provisions for depreciation, depletion and amortization; disposition
fees and real estate commissions; and losses on the disposition of
assets and provisions for such losses; (v) fees and expenses payable to
public accountants, legal counsel, consultants, managers or agents,
employed for the Trust directly by the Trustees; (vi) legal and other
expenses in connection with formal or informal administrative action or
legal proceedings which involve a challenge to the status of the Trust
as a REIT, or advice concerning obtaining or maintaining such status,
or the determination by the Trust of its taxable income or involving a
claim that the activities of the Trust or any Trustee, Shareholder,
officer or agent of the Trust were improper; (vii) expenses of
organizing, revising, amending, converting, modifying, reorganizing or
terminating the Trust; (viii) the cost of insurance in the nature of
directors' or officers' liability insurance covering Trustees and
officers of the Trust; (ix) fees and expenses of transfer agents,
registrars, warrant agents, rights agents, dividend payment and
dividend reinvestment agents, escrow holders and indenture trustees;
(x) all printing and distribution expenses connected with
communications to holders of Securities of the Trust and other
necessary costs in maintaining relations with holders of Securities,
including the costs of printing and mailing the certificates for
Securities, proxy solicitation materials and reports to such holders
and the cost of holding meetings of holders of the Securities of the
Trust; (xi) legal, accounting, printing and other costs of reports
required to be filed with state or Federal government agencies; and
(xii) all fees paid to the Advisor during such period; provided,
however, that the foregoing exclusions shall not include any allocation
of costs of the Advisor's overhead incurred in performing its duties
under its advisory agreement with the Trust.
(z) Trust. "Trust" shall mean the Trust created by this
Declaration.
(aa) Trustees. "Trustees" shall mean, as of any particular
time, original signatories hereto as long as they hold office hereunder
and additional and successor trustees, and shall not include the
officers, employees or agents of the Trust or the Shareholders. Nothing
herein shall be deemed to preclude the Trustees from also serving as
officers, employees or agents of the Trust or owning Shares.
(bb) Trust Estate. "Trust Estate" shall mean as of any
particular time any and all property, real, personal or otherwise,
tangible or intangible, which is transferred, conveyed or paid to or
purchased by the Trust or Trustees and all rents, income, profits and
gains therefrom and which at such time is owned or held by or for the
Trust or the Trustees.
(cc) Trustees' Regulations. "Trustees' Regulations" shall have
the meaning set forth in Section 3.3.
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(dd) Unaffiliated Trustee. "Unaffiliated Trustee" shall mean a
Trustee who, in his individual capacity, (i) is not an Affiliate of the
Advisor or the Controlling Shareholder, (ii) does not own any interest
in the Advisor or the Controlling Shareholder, and (iii) does not
perform any services for the Trust except as Trustee; provided that
officers or employees of Compass Retail, Inc. shall also be deemed
"Unaffiliated Trustees" for purposes of this definition.
ARTICLE II
TRUSTEES
2.1 Number, Term of Office and Qualifications of Trustees. There shall
be no fewer than five (5) nor more than seven (7) Trustees. The initial Trustees
under this Second Amended and Restated Declaration of Trust are the five
signatories hereto. Within the limits set forth in this Section 2.1, the number
of Trustees may be increased and decreased from time to time by the Trustees or
by the vote or consent of the holders of a majority of the outstanding Shares
then entitled to vote thereon. Subject to the provisions of Section 2.3, each
Trustee shall hold office until the next annual meeting of Shareholders and
until the election and qualification of his successor. There shall be no
cumulative voting in the election for Trustees. A Trustee shall be an individual
at least twenty-one (21) years of age who is not under legal disability. Subject
to the provisions regarding vacancies set forth in Section 2.4, there shall be
at least one (1) Unaffiliated Trustee at all times. Upon the resignation,
removal or death of a Trustee who is an Affiliated Trustee, the remaining
Affiliated Trustees shall appoint a person to replace such Affiliated Trustee.
Nominees to serve as Affiliated Trustees shall be nominated by the then current
Affiliated Trustees, if any. Unless otherwise required by law, no Trustee shall
be required to give bond, surety or security in any jurisdiction for the
performance of any duties or obligations hereunder. The Trustees in their
capacity as trustees shall not be required to devote their entire time to the
business and affairs of the Trust.
2.2 Compensation and Other Remuneration. The Trustees shall be entitled
to receive such reasonable compensation for their services as Trustees as the
Trustees may determine from time to time. The Trustees and Trust officers shall
be entitled to receive remuneration for services rendered to the Trust in any
other capacity. Subject to Sections 7.5 and 7.6, such services may include,
without limitation, services as an officer of the Trust, legal, accounting or
other professional services, or services as a broker, transfer agent or
underwriter, whether performed by a Trustee or any person affiliated with a
Trustee.
2.3 Resignation, Removal and Death of Trustees. A Trustee may resign at
any time by giving written notice in recordable form to the remaining Trustees
at the principal office of the Trust. Such resignation shall take effect on the
date such notice is given, or at any later time specified in such notice,
without need for prior or subsequent accounting. A Trustee may be removed at any
time, with or without cause, by vote or consent of holders of a majority of the
outstanding Shares
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then entitled to vote thereon or by a majority of the remaining Trustees;
provided that, subject to the provisions regarding vacancies set forth in
Section 2.4, there shall be at least one (1) Unaffiliated Trustee at all times.
A Trustee judged incompetent or bankrupt, or for whom a guardian or conservator
has been appointed, shall be deemed to have resigned as of the date of such
adjudication or appointment. Upon the resignation or removal of any Trustee, or
upon his otherwise ceasing to be a Trustee, he shall execute and deliver such
documents as the remaining Trustees shall require for the conveyance of any
Trust property held in his name and shall account to the remaining Trustee or
Trustees, as they require, for all property which he holds as Trustee and shall
thereupon be discharged as Trustee. Upon the incapacity or death of any Trustee,
his legal representative shall perform the acts set forth in the preceding
sentence, and the discharge mentioned therein shall run to such legal
representative and to the incapacitated Trustee or the estate of the deceased
Trustee, as the case may be.
2.4 Vacancies. If any or all of the Trustees cease to be Trustees
hereunder, whether by reason of resignation, removal, incapacity, death or
otherwise, such event shall not terminate the Trust or affect its continuity.
Until vacancies are filled, the remaining Trustee or Trustees (even though fewer
than five (5)) may exercise the powers of the Trustees hereunder. Vacancies
(including vacancies created by increases in number) may be filled by the
remaining Trustee or by a majority of the remaining Trustees (or the Controlling
Shareholder, if the vacant position was formerly held by an Affiliated Trustee)
or by the vote and consent of holders of a majority of the outstanding Shares
entitled to vote thereon. If at any time there shall be no Trustees in office,
successor Trustees shall be elected by the Shareholders as provided in Section
6.7. Any Trustee elected to fill a vacancy created by the resignation, removal
or death of a former Trustee shall hold office for the unexpired term of such
former Trustee. Successors of the Unaffiliated Trustees shall be nominated by
the remaining Unaffiliated Trustees, if there are any remaining Unaffiliated
Trustees.
2.5 Successor and Additional Trustees. The right, title and interest of
the Trustees in and to the Trust Estate shall also vest in successor and
additional Trustees upon their qualification, and they shall thereupon have all
the rights and obligations of Trustees hereunder. Such right, title and interest
shall vest in the Trustees whether or not conveyancing documents have been
executed and delivered pursuant to Section 2.3 or otherwise. Appropriate written
evidence of the election and qualification of successor and additional Trustees
shall be filed with the records of the Trust and in such other offices or places
as the Trustee may deem necessary, appropriate or desirable.
2.6 Actions by Trustees. The Trustees may act with or without a
meeting. A quorum for all meetings of the Trustees shall be a majority of the
Trustees. Affiliated Trustees may be counted in determining the presence of a
quorum at a meeting of the Trustees. Except as provided below in this Section
2.6 or in Section 7.6 hereof, any action of the Trustees may be taken at a
meeting by vote of a majority of the Trustees present (a quorum being present)
or without a meeting by written consents of a majority of the Trustees, which
consents shall be filed with the records of meetings of the Trustees. Every act
or decision done or made by a majority of the Trustees present at a meeting duly
held at which a quorum is present shall be the act of the Trustees. Any action
or actions permitted to be taken by the Trustees in connection with the business
of the Trust may be taken
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pursuant to authority granted by a meeting of the Trustees conducted by a
telephone conference call, and the transaction of Trust business represented
thereby shall be of the same authority and validity as if transacted at a
meeting of the Trustees held in person or by written consent. The minutes of any
Trustees' meeting held by telephone shall be prepared in the same manner as a
meeting of the Trustees held in person. Any agreement, Mortgage or other
instrument or writing executed by one or more of the Trustees or by any
authorized Person shall be valid and binding upon the Trustees and upon the
Trust when authorized or ratified by action of the Trustees or as provided in
the Trustees' Regulations.
With respect to the actions of the Trustees, Trustees who have, or are
Affiliates of Persons who have, any direct or indirect interest in or connection
with any matter being acted upon may be counted for all quorum purposes under
this Section 2.6 and, subject to the provisions of Section 7.6, may vote on the
matter as to which they or their Affiliates have such interest or connection.
Approval of the following transactions shall require the approval of a
committee consisting of at least one Unaffiliated Trustee and at least two
Affiliated Trustees: (i) transactions between the Trust (including any
subsidiaries of the Trust) and ART and any of ART's Affiliates and other related
persons (other than transactions between related parties pursuant to a new
advisory agreement which has been approved or ratified by the holders of a
majority of the outstanding shares of beneficial interest of EQK, including
holders of a majority of the Shares not held by ART or any of its Affiliates,
that actually vote at the applicable meeting) and other transactions requiring
approval as set forth in Section 7.6; (ii) amendments to this Declaration of
Trust; and (iii) amendments to the Trustees' Regulations.
Any action hereunder which requires the affirmative vote of a majority
of the Unaffiliated Trustees may be taken upon the affirmative vote of the sole
Unaffiliated Trustee if only one such Trustee exists.
2.7 Certification of Changes in Trustees. No removal of a Trustee and
no election or appointment of any individual as Trustee (other than an
individual who was serving as a Trustee immediately prior to such election or
appointment) shall become effective unless and until there shall be delivered to
the chief executive officer or the secretary of the Trust an instrument in
writing signed by a majority of the Trustees, certifying to such removal of a
Trustee and or naming the individual so elected or appointed as Trustee,
together with his written acceptance thereof and agreement to be bound thereby.
2.8 Committees. The Trustees may appoint from among their own number an
audit committee, a nominating committee and such other standing committee as the
Trustees determine. Each standing committee shall consist of two or more
members. At least one member of the audit committee and each other standing
committee shall be an Unaffiliated Trustee; provided, however, that upon a
failure to comply with this requirement because of the resignation, removal or
death of an Unaffiliated Trustee, such requirement shall not be applicable for a
period of sixty (60) days.
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Each committee shall have such powers, duties and obligations as the Trustees
may deem necessary or appropriate. The standing committees shall report their
activities periodically to the Trustees.
ARTICLE III
TRUSTEES' POWERS
3.1 Power and Authority of Trustees. The Trustees, subject only to the
specific limitations contained in this Declaration, shall have, without further
or other authorization, and free from any power or control on the part of the
Shareholders, full, absolute and exclusive power, control and authority over the
Trust Estate and over the business and affairs of the Trust to the same extent
as if the Trustees were the sole owners thereof in their own right, and may do
all such acts and things as in their sole judgment and discretion are necessary
for or incidental to or desirable for the carrying out of any of the purposes of
the Trust or the conducting of the business of the Trust. Any determination made
in good faith by the Trustees of the purposes of the Trust or the existence of
any power or authority hereunder shall be conclusive. In construing the
provisions of this Declaration, a presumption shall favor the grant of powers
and authority to the Trustees. The enumeration of any specific power or
authority herein shall not be construed as limiting the general powers or
authority or any other specified power or authority conferred herein upon the
Trustees.
3.2 Specific Powers and Authority. Subject only to the express
limitations contained in this Declaration and in addition to any powers and
authorities conferred by this Declaration or which the Trustees may have by
virtue of any present or future statute or rule or law, and also subject to the
REIT Provisions of the Internal Revenue Code, the Trustees, without any action
or consent by the Shareholders, shall have and may exercise at any time and from
time to time the following powers and authorities which may or may not be
exercised by them in their sole judgment and discretion and in such manner and
upon such terms and conditions as they may from time to time deem proper:
(a) to retain, invest and reinvest the capital or other funds
of the Trust in, and to acquire, purchase, or own, mortgage and/or
equity interests in real or personal property of any kind, all without
regard to whether any such property is authorized by law for the
investment of Trust funds or whether any investments may mature before
the possible termination of the Trust, and to possess and exercise all
the rights, powers, and privileges appertaining to the ownership of the
Trust Estate and to increase the capital of the Trust at any time by
the issuance of additional Shares or Securities of the Trust for such
consideration as they deem appropriate;
(b) without limitation of the powers set forth in paragraph
(a) above, for such consideration as they deem proper, to invest in,
purchase, or otherwise acquire for cash or other property or through
the issuance of Shares or through the issuance of notes, debentures,
bonds, or other obligations of the Trust and hold for investment real,
personal or mixed, tangible or intangible, property of any kind
wherever located in the world, including without
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limitation: (i) the entire or any participating interest in rents,
lease payments, or other income from, or the entire or any
participating interest in the profits from, or the entire or any
participating interest in the equity or ownership of, Real Property;
(ii) the entire or any participating interest in notes, bonds, or other
obligations which are secured by Mortgages; (iii) in connection with
any such investment, purchase or acquisition, a share of rents, lease
payments, or other gross income from or a share of the profits from or
a share in the equity or ownership of Real Property, either directly or
through joint venture, general or limited partnership, or other lawful
combinations or associations; (iv) loans secured by the pledge or
transfer of Mortgages; and (v) Securities of every nature, whether or
not secured by Mortgage Loans. The Trustees shall also have the power
to develop, operate, pool, unitize, grant production payments out of or
lease or otherwise dispose of mineral, oil, and gas properties and
rights;
(c) to sell, rent, lease, hire, exchange, release, partition,
assign, mortgage, pledge, hypothecate, grant security interests in,
encumber, negotiate, convey, transfer or otherwise dispose of any and
all of the Trust Estate by deeds (including deeds in lieu of
foreclosure), trust deeds, assignments, bills of sale, transfers,
leases, mortgages, financing statements, security agreements and other
instruments for any of such purposes executed and delivered for and on
behalf of the Trust or the Trustees by one or more of the Trustees or
by a duly authorized officer, employee, agent or any nominee of the
Trust;
(d) to issue Shares, bonds, debentures, notes or other
evidences of indebtedness which may be secured or unsecured and may be
subordinated to any indebtedness of the Trust and may be convertible
into Shares and which include options, warrants and rights to subscribe
to, purchase or acquire any of the foregoing, all without vote of or
other action by the Shareholders to such Persons for such cash,
property or other consideration (including Securities issued or created
by, or interests in any Person) at such time or times and on such terms
as the Trustees in their sole discretion and in good faith may deem
advisable and to list any of the foregoing Securities issued by the
Trust on any securities exchange and to purchase or otherwise acquire,
hold, cancel, reissue, sell and transfer any of such Securities, and to
cause the instruments evidencing such Securities to bear an actual or
facsimile imprint of the seal of the Trust and to be signed by manual
or facsimile signature or signatures (and to issue such Securities,
whether or not any Person whose manual or facsimile signature shall be
imprinted thereon shall have ceased to occupy the office with respect
to which such signature was authorized), provided that, where only
facsimile signatures for the Trust are used, the instrument shall be
countersigned manually by a transfer agent, registrar or other
authentication agent. Any of such Securities of different types may be
issued in combinations or units with such restrictions on the separate
transferability thereof as the Trustees shall determine;
(e) to enter into leases of real and personal property as
lessor or lessee and to enter into contracts, obligations and other
agreements for a term, and to invest in obligations
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having a term, extending beyond the term of office of the Trustees and
beyond the possible termination of the Trust, or having a lesser term;
(f) to borrow money and give negotiable or non-negotiable
instruments therefor; to guarantee, indemnify or act as surety with
respect to payment or performance of obligations of third parties; to
enter into other obligations on behalf of the Trust; and to assign,
convey, transfer, mortgage, subordinate, pledge, grant security
interests in, encumber or hypothecate the Trust Estate to secure any
indebtedness of the Trust or any other of the foregoing obligations of
the Trust;
(g) to lend money, whether secured or unsecured;
(h) to create reserve funds for any purpose;
(i) to incur and pay out of the Trust Estate any charges or
expenses, and disburse any funds of the Trust, which charges, expenses
or disbursements are, in the opinion of the Trustees, necessary for or
incidental to or desirable for the carrying out of any of the purposes
of the Trust or the conducting of the business of the Trust, including
without limitation taxes and other governmental levies, charges and
assessments, of whatever kind or nature, imposed upon or against the
Trustees in connection with the Trust or the Trust Estate or upon or
against the Trust Estate or any part thereof, and for any of the
purposes herein;
(j) to deposit funds or Securities held by the Trust in banks,
trust companies, savings and loan associations and other depositories,
whether or not such deposits will draw interest, the same to be subject
to withdrawal on such terms and in such manner and by such Person or
Persons (including any one or more Trustees, officers, agents or
representatives) as the Trustees may determine;
(k) to possess and exercise all the rights, powers and
privileges appertaining to the ownership of all or any interests in
Mortgages or Securities issued or created by any Person, forming part
of the Trust Estate, to the same extent that an individual might, and,
without limiting the generality of the foregoing, to vote or give any
consent, request or notice, or waive any notice, either in person or by
proxy or power of attorney, with or without power of substitution, to
one or more Persons, which proxies and powers of attorney may be for
meetings or actions generally, or for any particular meeting or action,
and may include the exercise of discretionary powers;
(l) to cause to be organized or assist in organizing any
Person under the laws of any jurisdiction to acquire the Trust Estate
or any part or parts thereof or to carry on any business in which the
Trust shall directly or indirectly have any interest and to sell, rent,
lease, hire, convey, negotiate, assign, exchange or transfer the Trust
Estate or any part or parts thereof to or with any such Person or any
existing Person in exchange for the Securities
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thereof or otherwise, and to merge or consolidate the Trust with or
into any Person or merge or consolidate any Person into the Trust, and
to lend money to, subscribe for the Securities of, and enter into any
contracts with, any Person in which the Trust holds or is about to
acquire Securities or any other interest;
(m) to enter into joint ventures, general or limited
partnerships, participation or agency arrangements and any other lawful
combinations or associations;
(n) to elect, appoint, engage or employ such officers for the
Trust as the Trustees may determine, who may be removed or discharged
at the discretion of the Trustees, such officers to have such powers
and duties, and to serve such terms and at such compensation as may be
prescribed by the Trustees or by the Trustees' Regulations, to engage
or employ any Persons (including, subject to the provisions of Sections
7.5 and 7.6, any Trustee, officer or agent and any Person in which any
Trustee, officer or agent is directly or indirectly interested or with
which he is directly or indirectly connected) as agents,
representatives, employees, or independent contractors (including
without limitation real estate advisors, investment advisors, transfer
agents, registrars, underwriters, accountants, attorneys at law, real
estate agents, managers, appraisers, brokers, architects, engineers,
construction managers, general contractors or otherwise) in one or more
capacities, and to pay compensation from the Trust for services in as
many capacities as such Person may be so engaged or employed and,
except as prohibited by law, to delegate any of the powers and duties
of the Trustees to any one or more Trustees, agents, representatives,
officers, employees, independent contractors or other Persons;
(o) to determine whether moneys, Securities or other assets
received by the Trust shall be charged or credited to income or capital
or allocated between income and capital, including the power to
amortize or fail to amortize any part or all of any premium or
discount, to treat any part or all the profit resulting from the
maturity or sale of any asset, whether purchased at a premium or at a
discount, as income or capital, or to apportion the same between income
and capital; to apportion the sales price of any asset between income
and capital, and to determine in what manner any expenses or
disbursements are to be borne as between income and capital, whether or
not in the absence of the power and authority conferred by this
subsection such monies, Securities or other assets would be regarded as
income or as capital or such expense or disbursement would be charged
to income or to capital; to treat any dividend or other distribution on
any investment as income or capital or apportion the same between
income and capital; to provide or fail to provide reserves for
depreciation, amortization or obsolescence in respect of all or any
part of the Trust Estate subject to depreciation, amortization or
obsolescence in such amounts and by such methods as they shall
determine; to allocate to the share of beneficial interest account less
than all of the consideration received for the Shares and to allocate
the balance thereof to capital surplus; and to determine the method or
form in which the accounts and records of the Trust shall be kept and
to change from time to time such method or form;
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(p) to determine from time to time, the value of all or any
part of the Trust Estate and of any services, Securities, assets or
other consideration to be furnished to or acquired by the Trust, and
from time to time to revalue all or any part of the Trust Estate in
accordance with such appraisals or other information as are, in the
Trustees' sole judgment, necessary and/or satisfactory;
(q) to collect, sue for, and receive all sums of money or
other assets coming due to the Trust, and to engage in, intervene in,
prosecute, join, defend, compound, compromise, abandon or adjust, by
arbitration or otherwise, any actions, suits, proceedings, disputes,
claims, controversies, demands or other litigation relating to the
Trust, the Trust Estate or the Trust's affairs, to enter into
agreements therefor, whether or not any suit is commenced or claim
accrued or asserted and, in advance of any controversy, to enter into
agreements regarding arbitration, adjudication or settlement thereof;
(r) to renew, modify, release, compromise, extend, consolidate
or cancel, in whole or in part, any obligation to or of the Trust or
participate in any reorganization of obligors to the Trust;
(s) to purchase and pay for out of the Trust Estate insurance
contracts and policies insuring the Trust Estate against any and all
risks and insuring the Trust and/or any or all of the Trustees, the
Shareholders, officers, employees, agents, investment advisors or
independent contractors of the Trust against any and all claims and
liabilities of every nature asserted by any Person arising by reason of
any action alleged to have been taken or omitted by the Trust or by any
such Person as Trustee, Shareholder, officer, employee, agent,
investment advisor or independent contractor, whether or not the Trust
would have the power to indemnify such Person against such claim or
liability;
(t) to cause legal title to any of the Trust Estate to be held
by and/or in the name of the Trustees, or except as prohibited by law,
by and/or in the name of the Trust or one or more of the Trustees or
any other Person, on such terms, in such manner, with such powers in
such Person as the Trustees may determine, and with or without
disclosure that the Trust or Trustees are interested therein;
(u) to adopt a fiscal year for the Trust, and from time to
time to change such fiscal year without the approval of the
Shareholders;
(v) to adopt and use a seal (but the use of a seal shall not
be required for the execution of instruments or obligations of the
Trust);
(w) to make, perform, and carry out, or cancel and rescind,
contracts of every kind for any lawful purpose without limit as to
amount, with any Person, firm, trust, association, corporation,
municipality, county, parish, state, territory, government or other
municipal or
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governmental subdivision, such contracts to be for such duration and
upon such terms as the Trustees in their sole discretion shall
determine;
(x) to confess judgment against the Trust;
(y) to discontinue the operations of the Trust;
(z) to repurchase or redeem Shares; and
(aa) to do all other such acts and things as are necessary or
incidental to the foregoing, and to exercise all powers which are
necessary or useful to carry on the business of the Trust, to promote
any of the purposes for which the Trust is formed and to carry out the
provisions of this Declaration.
3.3 Trustees' Regulations. The Trustees may make, adopt, amend or
repeal regulations (the "Trustees' Regulations") containing provisions relating
to the business of the Trust, the conduct of its affairs, its rights or powers
and the rights or powers of its Shareholders, Trustees or officers not
inconsistent with law or with this Declaration. Notwithstanding anything to the
contrary in the Trustees' Regulations, any amendment of the Trustees'
Regulations shall require the approval of a majority of the Unaffiliated
Trustees.
3.4 Additional Powers. The Trustees shall additionally have and
exercise all the powers conferred by the laws of Massachusetts upon business
trusts or real estate investment trusts formed under such laws, insofar as such
laws are not in conflict with the provisions of this Declaration.
ARTICLE IV
ADVISOR
4.1 Employment of Advisor. The Trustees are responsible for the general
policies of the Trust and for such general supervision of the business of the
Trust conducted by all officers, agents, employees, advisors, managers or
independent contractors of the Trust as may be necessary to ensure that such
business conforms to the provisions of this Declaration. However, the Trustees
are not and shall not be required personally to conduct all of the business of
the Trust, and, consistent with their ultimate responsibility as stated above,
the Trustees shall have the power to appoint, employ or contract with any Person
(including one or more of themselves or any corporation, partnership, or trust
in which one or more of them may be directors, officers, stockholders, partners
or trustees) as the Trustees may deem necessary or proper for the transaction of
the business of the Trust. The Trustees may therefor employ or contract with
such Person (herein referred to as the "Advisor") and, consistent with their
ultimate responsibility as set forth in this Section 4.1, the Trustees may grant
or delegate such authority to the Advisor as the Trustees may in their sole
discretion deem necessary or desirable without regard to whether such authority
is normally granted or delegated by trustees.
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Subject to the provisions of Sections 4.2 and 4.4 hereof, the Trustees
shall have the power to determine the terms and compensation of the Advisor or
any other Person whom they may employ or with whom they may contract; provided,
however, that any determination to employ or contract with any Trustee or any
Person such that a Trustee would be an Affiliated Trustee shall be valid only if
made, approved or ratified, after disclosure of such interests, by the
affirmative vote or written consent of a majority of the Unaffiliated Trustees.
The Trustees may exercise broad discretion in allowing the Advisor to administer
and regulate the operations of the Trust, to act as agent for the Trust, to
execute documents on behalf of the Trustees and to make executive decisions
which conform to general policies and general principles previously established
by the Trustees.
4.2 Term. The Trustees shall not enter into any advisory contract with
the Advisor unless such contract has an initial term of no more than two (2)
years, provides for annual renewal or extension thereafter and for termination
thereof by the Trustees without cause at any time without penalty upon sixty
(60) days' written notice by the Trustees, either by affirmative vote or written
consent of a majority of the Unaffiliated Trustees, requires for renewal or
extension thereof the affirmative vote or written consent of a majority of the
Unaffiliated Trustees and provides for termination thereof by the Advisor
without cause at any time after the expiration of a period specified in such
contract (which period shall not be shorter than the original term) without
penalty upon one hundred and eighty (180) days' written notice by the Advisor.
In the event of the termination of an advisory contract, the terminated Advisor
shall be required to cooperate with the Trust and take all reasonable steps
requested to assist the Trustees in making an orderly transition of the advisory
function. It shall be the duty of the Trustees to evaluate the performance of
the Advisor before entering into or renewing an advisory contract, and the
Unaffiliated Trustees have a fiduciary duty to the Shareholders to supervise the
relationship of the Trust with the Advisor.
4.3 Other Activities of Advisor. The Advisor shall not be required to
administer the investment activities of the Trust as its sole and exclusive
function and may have other business interests and may engage in other
activities similar or in addition to those relating to the Trust, including the
rendering of services and advice to other Persons (including other REITs) and
the management of other investments (including investments of the Advisor and
its Affiliates). The Trustees may request the Advisor to engage in other
activities which complement the Trust's investments, and the Advisor may receive
compensation or commissions therefor from the Trust or other Persons.
The Advisor shall be required to use its best efforts to supervise the
operation of the Trust in a manner consistent with the investment policies and
objectives of the Trust, but neither the Advisor nor (subject to any applicable
provisions of Section 7.5) any Affiliate of the Advisor shall be obligated to
present any particular investment opportunity to the Trust, even if such
opportunity is of a character such that, if presented to the Trust, could be
taken by the Trust, and, subject to the foregoing, shall be protected in taking
for its own account or recommending to others any such particular investment
opportunity.
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Upon request of any Trustee, the Advisor shall from time to time
promptly furnish the Trustees with such information on a confidential basis as
to any investments within the Trust's investment policies made by the Advisor
for its own account as may be provided in the advisory contract with the Advisor
in effect from time to time.
4.4 Advisor Compensation. The Trustees, including a majority of the
Unaffiliated Trustees, shall at least annually review generally the performance
of the Advisor in order to determine whether the compensation which the Trust
has contracted to pay to the Advisor is reasonable in relation to the nature and
quality of services performed and whether the provisions of the advisory
contract with the Advisor are being carried out. Each such determination shall
be based on such of the following and other factors as the Trustees (including
the Unaffiliated Trustees) deem relevant and shall be reflected in the minutes
of the meetings of the Trustees:
(a) the size of the advisory fee in relation to the size,
composition and profitability of the portfolio of the Trust;
(b) the success of the Advisor in generating opportunities
that meet the investment objectives of the Trust;
(c) the rates charged to other REITs and to investors other
than REITs by Advisors performing similar services;
(d) additional revenues realized by the Advisor and its
Affiliates through their relationship with the Trust, including loan
administration, underwriting or brokerage commissions, servicing,
engineering, inspection and other fees, whether paid by the Trust or by
others with whom the Trust does business;
(e) the quality and extent of service and advice furnished by
the Advisor;
(f) the performance of the investment portfolio of the Trust,
including income, conservation or appreciation of capital, frequency of
problem investments and competence in dealing with distress situations;
and
(g) the quality of the portfolio of the Trust in relationship
to any investments generated by the Advisor for its own account.
4.5 Annual Total Operating Expenses. The Total Operating Expenses of
the Trust shall not exceed in any twelve-month period the greater of two percent
(2%) of the Average Invested Assets for such twelve-month period and twenty-five
percent (25%) of the Net Income for such twelve (12) month period (calculated
before the deduction therefrom of such Total Operating Expenses), or such
greater amount, with respect to any year, as shall have been found by a majority
of the Trustees, including a majority of the Unaffiliated Trustees, based upon
such unanticipated, unusual or nonrecurring factors as they may deem sufficient,
to be justified for such year, and any
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such finding and the reasons in support thereof shall be reflected in the
minutes of the meetings of the Trustees.
The Unaffiliated Trustees shall at least annually determine whether the
total fees and expenses of the Trust are reasonable in light of the investment
experience of the Trust, its Net Assets, its Net Income and the fees and
expenses of comparable REITs. Each such determination shall be reflected in the
minutes of meetings of the Trustees.
Within sixty (60) days after the end of any fiscal quarter of the Trust
ending on or after December 31, 1985 for which Total Operating Expenses (for the
twelve (12) months then ended) exceed both two percent (2%) of the Average
Invested Assets for such twelve (12) month period and twenty-five percent (25%)
of the Net Income for such twelve (12) month period (calculated before the
deduction therefrom of such Total Operating Expenses), there shall be sent to
the Shareholders a written disclosure of such fact, together with an explanation
of the factors, if any, which the Trustees (including a majority of the
Unaffiliated Trustees) have concluded were sufficiently unanticipated, unusual
or nonrecurring to justify such higher Total Operating Expenses.
Each advisory contract with the Advisor shall provide that in the event
that the Total Operating Expenses exceed the limitations provided in this
Section 4.5, then, unless the Trustees (including a majority of the Unaffiliated
Trustees) shall have found such excess to be justified as provided above, the
Advisor shall reimburse the Trust (which reimbursement may be accomplished by,
at the option of the Trust, a reduction of the Advisor's compensation) for the
amount by which the aggregate annual Total Operating Expenses paid or incurred
by the Trust exceed the limitations herein provided.
ARTICLE V
INVESTMENT POLICY
5.1 Statement of Policy. It shall be the general objectives of the
Trust that the Trustees invest the Trust Estate in equity interests in Real
Property (including equity Securities of real estate-related entities), leases,
joint venture development projects and partnerships and participate in the
financing of real estate and real estate-related activities through investments
in mortgage loans, including first, wraparound and junior mortgage loans
(collectively, the "Permitted Investments"). The Trustees shall pursue a
balanced investment policy, seeking both current income and capital
appreciation. These general objectives shall be pursued in a manner consistent
with the investment policies specified in the remainder of this Section 5.1.
The Trustees intend to hold the Permitted Investments for up to
eighteen years after the date of this Second Amended and Restated Declaration of
Trust and, after the eighteenth year, the Trustees will dispose of any remaining
investments of the Trust in an orderly fashion within a period of two years in
order to achieve a complete liquidation of the Trust within twenty years after
the date of this Second Amended and Restated Declaration of Trust. The Trust's
existence and the maximum
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holding period for its investments may be extended beyond the 20-year period
only if (i) at any time after the 18th year after the date of this Second
Amended and Restated Declaration of Trust, a majority of the Trustees, including
a majority of the Unaffiliated Trustees, affirmatively determines that such
extension would be in the best interests of the Shareholders, taking into
consideration the then prevailing conditions in the relevant real estate
markets, and recommends to the Shareholders a single specified extension of the
aforesaid 20-year period and (ii) the holders of a majority of the Shares then
outstanding and entitled to vote thereon approve such extension.
To the extent that the Trust Estate has assets not otherwise invested
in accordance with this Section 5.1, it shall be the policy of the Trustees to
invest such assets in (i) government Securities, (ii) Securities of government
agencies, (iii) bankers' acceptances, (iv) certificates of deposit, (v)
interest-bearing deposits in commercial banks, (vi) participations in pools of
mortgages or bonds and notes (such as Federal Home Loan Mortgage Corporation
participation sale certificates, Government National Mortgage Association
modified pass-through certificates and Federal National Mortgage Association
bonds and notes); (vii) bank repurchase agreements covering the Securities of
the United States or agencies or instrumentalities thereof and (viii) other
similarly secured short-term investment Securities.
Subject to the investment restrictions in Section 5.2, the Trustees may
alter any or all of the above-described investment policies if they should
determine such change to be in the best interest of the Trust. Subject to the
preceding terms, the Trustees shall endeavor to invest the Trust's assets in
accordance with the investment policies set forth in this Article V, but the
failure so to invest its assets shall not affect the validity of any investment
made or action taken by the Trustees.
It shall be the policy of the Trustees to make investments in such
manner as to comply with the requirements of the Internal Revenue Code with
respect to the composition of the investments and the derivation of the income
of a real estate investment trust as defined in the REIT Provisions of the
Internal Revenue Code; provided, however, that no Trustee, officer, employee or
agent of the Trust shall be liable for any act or omission resulting in the loss
of tax benefits under the Internal Revenue Code, except for that arising from
his own willful misfeasance, bad faith, gross negligence or reckless disregard
of duty.
5.2 Prohibited Investments and Activities. The Trustees shall not:
(a) invest in any foreign currency, commodities, commodity
futures contracts, bullion or chattels, except such chattels as are
employed in the day to day business of the Trust or in connection with
its Real Property;
(b) invest in any contracts for the sale of real estate,
except in connection with the acquisition of interests in Real
Property;
(c) engage in any short sale;
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(d) issue "redeemable securities" as defined in Section
2(a)(32) of the Investment Company Act of 1940;
(e) hold equity Securities, except in connection with the
acquisition of equity interests in Real Property; or
(f) engage in trading as compared with investment activities
or engage in the business of underwriting or agency distribution of
Securities issued by others, but this prohibition shall not prevent the
Trustees from selling interests in Real Property.
5.3 Appraisals. If the Trustees shall at any time purchase Real
Property, or interests therein, the consideration paid therefor shall generally
be based upon the fair market value thereof as determined by an appraisal by a
Person who is not an Affiliate of the Trust or the Advisor and who is, in the
sole judgment of the Trustees, properly qualified to make such a determination.
ARTICLE VI
THE SHARES AND SHAREHOLDERS
6.1 Shares. The units into which the beneficial interest in the Trust
will be divided shall be designated as Shares of Beneficial Interest, each
without par value. The Shares shall be of one class, and each Share shall be
identical in all respects with every other Share. There shall be no limit upon
the number of authorized Shares which may be issued by the Trust. The
certificates evidencing the Shares shall be in such form, and signed as provided
in Section 3.2(d) on behalf of the Trust and of a transfer agent and/or
registrar (if any) in such manner as the Trustees may from time to time
prescribe or as may be prescribed in the Trustees' Regulations. The certificates
shall be negotiable and title thereto and to the Shares represented thereby
shall be transferred by assignment and delivery thereof to the same extent and
in all respects as a share certificate of a Massachusetts business corporation
(subject to Sections 3.2(d), 6.4 and 6.12). The Shares may be issued for such
consideration as the Trustees in their sole discretion shall determine or by way
of Share dividend or Share split in the sole discretion of the Trustees. Shares
reacquired by the Trust shall no longer be deemed outstanding and shall have no
voting or other rights unless and until reissued. Shares reacquired by the Trust
may be canceled and restored to the status of authorized and unissued Shares by
action of the Trustees. All Shares shall be validly issued, fully paid and
nonassessable by the Trust upon receipt of full consideration for which they
have been issued or without additional consideration if issued by way of Share
dividend or Share split. Each holder of Shares shall as a result thereof be
deemed to have agreed to and be bound by the terms of this Declaration. The
holders of Shares shall be entitled to receive, when and as declared from time
to time by the Trustees out of any funds legally available for the purpose, such
dividends as may be declared from time to time by the Trustees. In the event of
the termination of the Trust or upon the distribution of its assets, the assets
of the Trust available for payment and distribution to Shareholders shall be
distributed ratably among the holders of Shares at the time outstanding. The
Shares shall entitle the holders thereof to one vote per share, shall not
entitle the holders thereof to preference, appraisal,
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conversion, exchange, preemptive or redemption rights of any kind and shall have
equal dividend or distribution, liquidation and other rights.
6.2 Legal Ownership of Trust Estate. The legal ownership of the Trust
Estate and the right to conduct the business of the Trust are vested exclusively
in the Trustees (subject to Section 3.2(t)), and the Shareholders shall have no
interest therein other than beneficial interest in the Trust conferred by their
Shares issued hereunder and they shall have no right to compel any partition,
division, dividend or distribution of the Trust or any of the Trust Estate.
6.3 Shares Deemed Personal Property. The Shares shall be personal
property and shall confer upon the holders thereof only the interest and rights
specifically set forth or provided for in this Declaration. The death,
insolvency or incapacity of a Shareholder shall not dissolve or terminate the
Trust or affect its continuity nor give his legal representative any rights
whatsoever, whether against or in respect of other Shareholders, the Trustees or
the Trust Estate or otherwise except the sole right to demand and, subject to
the provisions of this Declaration, the Trustees' Regulations and any
requirements of law, to receive a new certificate for Shares registered in the
name of such legal representative, in exchange for the certificate held by such
Shareholder.
6.4 Share Record; Issuance and Transferability of Shares. Records shall
be kept by or on behalf of and under the direction of the Trustees, which shall
contain the names and addresses of the Shareholders, the number of Shares held
by them respectively, and the numbers of the certificates representing the
Shares, and in which there shall be recorded all transfers of Shares. The Trust,
the Trustees and the officers, employees and agents of the Trust shall be
entitled to deem the Persons in whose names certificates are registered on the
records of the Trust to be the absolute owners of the Shares represented thereby
for all purposes of this Trust; but nothing herein shall be deemed to preclude
the Trustees or officers, employees or agents of the Trust from inquiring as to
the actual ownership of Shares. Until a transfer is duly effected on the records
of the Trust, the Trustees shall not be affected by any notice of such transfer,
either actual or constructive.
Shares shall be transferable on the records of the Trust only by the
record holder thereof or by his agent thereunto duly authorized in writing upon
delivery to the Trustees or a transfer agent of the certificate or certificates
therefor, properly endorsed or accompanied by duly executed instruments of
transfer and accompanied by all necessary documentary stamps together with such
evidence of the genuineness of each such endorsement, execution or authorization
and of other matters as may reasonably be required by the Trustees or such
transfer agent. Upon such delivery, the transfer shall be recorded in the
records of the Trust and a new certificate for the Shares so transferred shall
be issued to the transferee and in case of a transfer of only a part of the
Shares represented by any certificate, a new certificate for the balance shall
be issued to the transferor. Any Person becoming entitled to any Shares in
consequence of the death of a Shareholder or otherwise by operation of law shall
be recorded as the holder of such Shares and shall receive a new certificate
therefor but only upon delivery to the Trustees or a transfer agent of
instruments and other evidence required by the Trustees or the transfer agent to
demonstrate such entitlement, the existing certificate for such Shares and such
releases from applicable governmental authorities as may be required by
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the Trustees or transfer agent. In case of the loss, mutilation or destruction
of any certificate for Shares, the Trustees may issue or cause to be issued a
replacement certificate on such terms and subject to such rules and regulations
as the Trustees may from time to time prescribe. Nothing in this Declaration
shall impose upon the Trustees or a transfer agent a duty or limit their rights
to inquire into adverse claims.
6.5 Dividends or Distributions to Shareholders. The Trustees may from
time to time declare and pay to Shareholders such dividends or distributions in
cash, property or assets of the Trust or Securities issued by the Trust, out of
current or accumulated income, capital, capital gains, principal, surplus,
proceeds from the increase or financing or refinancing of Trust obligations, or
from the sale of portions of the Trust Estate or from any other source as the
Trustees in their discretion shall determine. Shareholders shall have no right
to any dividend or distribution unless and until declared by the Trustees. The
Trustees shall furnish the Shareholders with a statement in writing advising as
to the source of the funds so distributed not later than ninety (90) days after
the close of the fiscal year in which the distribution was made.
6.6 Transfer Agent, Dividend Disbursing Agent and Registrar. The
Trustees shall have power to employ one or more transfer agents, dividend
disbursing agents and registrars (including the Advisor and/or its Affiliates)
and to authorize them on behalf of the Trust to keep records, to hold and to
disburse any dividends or distributions, and to have and perform, in respect of
all original issues and transfers of Shares, dividends and distributions and
reports and communications to Shareholders, the powers and duties usually had
and performed by transfer agents, dividend disbursing agents and registrars of a
Massachusetts business corporation.
6.7 Shareholders' Meetings. There shall be an annual meeting of the
Shareholders, at such time and place as shall be determined by or in the manner
prescribed in the Trustees' Regulations, at which the Trustees shall be elected
and any other proper business may be conducted. The Annual Meeting of
Shareholders shall be held after delivery to the Shareholders of the Annual
Report and within six (6) months after the end of each fiscal year, commencing
with the fiscal year ending December 31, 1985. Special meetings of Shareholders
may be called by the chief executive officer of the Trust or by a majority of
the Trustees or of the Unaffiliated Trustees and shall be called upon the
written request of Shareholders holding in the aggregate not less than ten
percent (10%) of the total votes authorized to be cast by the outstanding Shares
of the Trust entitled to vote at such meeting in the manner provided in the
Trustees' Regulations. If there shall be no Trustees, the officers of the Trust
shall promptly call a special meeting of the Shareholders entitled to vote for
the election of successor Trustees. Notice of any special meeting shall state
the purposes of the meeting. The holders of Shares entitled to vote at the
meeting representing a majority of the total number of votes authorized to be
cast by Shares then outstanding and entitled to vote on any question present in
person or by proxy shall constitute a quorum at any such meeting for action on
such question. Any meeting may be adjourned from time to time by a majority of
the votes properly cast upon the question, whether or not a quorum is present,
and the meeting may be reconvened without further notice. At any reconvened
session of the meeting at which there shall be a quorum, any business may be
transacted at the meeting as originally noticed. Whenever any action is to be
taken by the
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Shareholders, it shall, except as otherwise required by this Declaration, be
authorized by holders of a majority of the Shares then outstanding and entitled
to vote thereon. At all elections of Trustees, voting by Shareholders shall be
conducted under the noncumulative method and the election of Trustees shall be
by the affirmative vote of the holders of Shares representing a majority of the
total votes authorized to be cast by Shares then outstanding which are present
at the meeting in person or by proxy and entitled to vote in the election of the
Trustees. Whenever Shareholders are required or permitted to take any action
(unless a vote at a meeting is specifically required as in Sections 8.1 and
8.3), such action may be taken without a meeting by written consents setting
forth the action so taken, signed by the holders of a majority (or such higher
percentage as may be specified elsewhere in this Declaration) of the outstanding
Shares that would be entitled to vote thereon at a meeting. The Shareholders
shall be entitled, to the same extent as the shareholders in a Massachusetts
business corporation, to determine by vote whether a court action, proceeding or
claim should be brought or maintained derivatively or as a class action on
behalf of the Trust or its Shareholders. Except with respect to matters on which
a Shareholder's vote shall be required for or shall determine action of the
Trustees as expressly set forth in this Declaration, no action taken by the
Shareholders at any meeting shall in any way bind the Trustees.
6.8 Proxies. Whenever the vote or consent of a Shareholder entitled to
vote is required or permitted under this Declaration, such vote or consent may
be given either directly by such Shareholder or to a proxy in the form
prescribed in the Trustees' Regulations. The Trustees may solicit such proxies
from the Shareholders or any of them entitled to vote in any matter requiring or
permitting the Shareholders' vote or consent. No proxy for any meeting of
Shareholders entitled to vote shall be effective unless such proxy shall have
been placed on file with such officer of the Trust as the Trustees shall have
designated for such purposes for verification prior to such meeting.
6.9 Reports to Shareholders.
(a) Not later than one hundred twenty (120) days after the
close of each fiscal year of the Trust, the Trustees shall mail or
deliver a report of the business and operations of the Trust during
such fiscal year to the Shareholders, which report shall constitute the
accounting of the Trustees for such fiscal year. The report (the
"Annual Report") shall be in such form and have such content as the
Trustees deem proper. The Annual Report shall include a statement
indicating the financial position of the Trust and a statement
indicating the results of its operations, each prepared in accordance
with generally accepted accounting principles. Such financial
statements shall be accompanied by the report of an independent
certified public accountant thereon. A manually signed copy of the
accountant's report shall be filed with the Trustees. The Annual Report
shall also disclose the results of year-end appraisals of the fair
market values of the Trust's Permitted Investments.
(b) At least quarterly the Trustees shall send interim reports
to the Shareholders containing financial information which may be
unaudited and otherwise having such form and content as the Trustees
deem proper.
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6.10 Fixing Record Date. The Trustees' Regulations may provide for
fixing or, in the absence of such provision, the Trustees may fix, in advance, a
date as the record date for determining the Shareholders entitled to notice of
or to vote at any meeting of Shareholders or to express consent to any proposal
without a meeting, or for the purpose of determining Shareholders entitled to
receive payment of any dividend or distribution (whether before or after
termination of the Trust) or any Annual Report or other communication from the
Trustees, or for any other purpose. The record date so fixed shall be not less
than five (5) days nor more than sixty (60) days prior to the date of the
meeting or event for the purposes of which it is fixed.
6.11 Notice to Shareholders. Any notice of meeting or other notice,
communication or report to any Shareholder shall be deemed duly delivered to
such Shareholder when such notice, communication or report is deposited, with
postage thereon prepaid, in the United States mail, addressed to such
Shareholder at his address as it appears on the records of the Trust or is
delivered in person to such Shareholder.
6.12 Shareholders' Disclosures; Trustees' Right to Refuse to Transfer
Shares; Limitation on Holdings; Redemption of Shares.
(a) The Shareholders shall upon demand disclose to the
Trustees in writing such information with respect to direct and
indirect ownership of the Shares as the Trustees deem necessary or
appropriate to comply with the REIT Provisions of the Internal Revenue
Code or to comply with the requirements of any taxing authority or
governmental agency.
(b) Whenever it is deemed by them to be reasonably necessary
to protect the status of the Trust as a REIT, the Trustees may require
a statement or affidavit from each Shareholder or proposed transferee
of Shares setting forth the number of Shares already owned by him and
any related Person specified in the form prescribed by the Trustees for
that purpose. If, in the opinion of the Trustees, which shall be
conclusive upon any proposed transferee of Shares, any proposed
transfer would jeopardize the status of the Trust as a REIT, the
Trustees shall have the right, but not the duty, to refuse to permit
such transfer.
(c) The Trustees, by notice to the holder thereof, may redeem
any or all Shares which have been transferred pursuant to a transfer
which, in the opinion of the Trustee would jeopardize the status of the
Trust as a REIT; and from and after the date of giving of such notice
of redemption ("Redemption Date") the Shares called for redemption
shall cease to be outstanding and the holder thereof shall cease to be
entitled to dividends, voting rights and other benefits with respect to
such Shares excepting only the right to payment by the Trust of the
redemption price determined and payable as set forth in the following
sentence. The redemption price of each Share called for redemption
shall be the closing price on the exchange which is the principal
United States market for the Shares on the last business day prior to
redemption if the Shares of the Trust are listed on a securities
exchange, and, if the Shares are not so listed, shall be the mean
between the average per Share closing bid prices and the average per
Share closing asked prices on such date, or, if there have been no
sales
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on a national securities exchange and no published bid quotations and
no published asked quotations with respect to Shares of the Trust on
such date, the redemption price shall be the price determined by the
Trustees in good faith.
(d) Notwithstanding any other provision of this Declaration of
Trust to the contrary, any purported acquisition of Shares of the Trust
which would result in the disqualification of the Trust as a REIT shall
be null and void.
(e) Nothing contained in this Section 6.12 or in any other
provision of this Declaration of Trust shall limit the authority of the
Trustees to take such other action as they deem necessary or advisable
to protect the Trust and the interests of the Shareholders by
preservation of the Trust's status as a REIT.
(f) If any provision of this Section 6.12 or any application
of any such provision is determined to be invalid by any federal or
state court having jurisdiction over the issues, the validity of the
remaining provisions shall not be affected and other applications of
such provision shall be affected only to the extent necessary to comply
with the determination of such court. To the extent this Section 6.12
may be inconsistent with any other provision of this Declaration of
Trust, this Section 6.12 shall be controlling.
(g) It shall be the policy of the Trustees to consult with the
appropriate officials of the principal securities exchange, if any, on
which the Shares are listed as far as reasonably possible in advance of
the final exercise of any powers granted by subsections (b) or (c) of
this Section 6.12.
6.13 Issuance of Shares. Notwithstanding any other provision of this
Declaration, the Trust is authorized to issue an unlimited number of Shares or
other types of Securities from time to time, including Securities with
preferential rights senior to the Shares; provided that any issuance of Shares
shall be approved by the affirmative vote of holders of not less than a majority
of the then outstanding Shares entitled to vote thereon. Any Security of a class
or series so issued shall have the same characteristics and entitle the
registered holder thereof to the same rights as any identical Securities of the
same class or series issued separately by the Trust.
6.14 Ownership Limitation.
(a) No person other than ART and E.I. duPont de Nemours Co.
Inc. Trust Fund may beneficially own more than 4.9% of the outstanding
Shares (the "Ownership Limit") at any time. Any transfer of Shares
that, if effected, would result in any Person beneficially owning any
Shares in excess of the Ownership Limit shall be void ab initio as to
the transfer of any Shares representing beneficial ownership of Shares
in excess of the Ownership Limit.
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(b) Any transfer of Shares that, if effective, would result in
the Shares being beneficially owned (as provided in section 856(a) of
the Code) by less than 100 Persons (determined without reference to any
rules of attribution) shall be void ab initio as to the transfer of
such Shares which would be otherwise beneficially owned (as provided in
section 856(a) of the Code) by the intended transferee; and the
intended transferee shall acquire no rights in such Shares.
(c) Any transfer of Shares that, if effective, would result in
the Trust being "closely held" within the meaning of section 856(h) of
the Code shall be void ab initio as to the transfer of such Shares
which would cause the Trust to be "closely held" within the meaning of
section 856(h) of the Code; and the intended transferee shall acquire
no rights in such Shares.
(d) Any transfer of Shares that, if effective, would result in
disqualification of the Trust as a REIT shall be void ab initio as to
the transfer of such Shares; and the intended transferee shall acquire
no rights in such Shares.
(e) Nothing contained herein shall impair the settlement of
transactions entered into on the facilities of the NYSE or any other
exchange or quotation system on which Shares are traded.
6.15 Changes in Ownership Limit. The Board of Trustees may from time to
time increase or decrease the Ownership Limit; provided, however, that:
(a) Any decrease may be made prospectively as to subsequent
holders (other than a decrease as a result of a retroactive change in
existing law, in which case such decrease shall be effective
immediately);
(b) The Ownership Limit may not be increased if, after giving
effect to such increase, five beneficial owners of Shares could
beneficially own in the aggregate, more than 50% of the Shares then
outstanding; and
(c) Prior to the modification of the Ownership Limit, the
Board of Trustees may require such opinions of counsel, affidavits,
undertakings or agreements as it may deem necessary or advisable in
order to determine or ensure the Trust's status as a REIT.
6.16 Waivers by Board. The Board of Trustees, upon receipt of a ruling
from the Internal Revenue Service or an opinion of its tax advisor or other
documents or evidence satisfactory to the Board of Trustees and upon such other
conditions as the Board of Trustees may direct, may waive the Ownership Limit
with respect to an intended transferee in connection with a proposed transfer of
Shares which, if consummated, would result in such intended transferee owning
Shares in excess of the Ownership Limit. The Board of Trustees may require
written notice from a transferee such number of days prior to the proposed
transfer as the Board may determine in its sole discretion.
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ARTICLE VII
LIABILITY OF TRUSTEES, SHAREHOLDERS, OFFICERS,
EMPLOYEES AND AGENTS, AND OTHER MATTERS
7.1 Exculpation of Trustees, Officers, Employees and Agents. No
Trustee, officer, employee or agent of the Trust shall be liable to the Trust or
to any other Person for any act or omission except for his own willful
misfeasance, bad faith, or failure to act in good faith in the reasonable belief
that the act or omission was in the best interests of the Trust. No future
changes or amendments made to this Article VII shall (a) create standards of
liability less favorable to any past or current Trustee, officer, employee or
agent of the Trust than those standards of liability defined herein; or (b)
adversely affect the rights of past or current officers or Trustees to
indemnification and the advancement of expenses.
7.2 Limitation of Liability of Shareholders, Trustees, Officers,
Employees and Agents. The Trustees, officers, employees and agents of the Trust
in incurring any debts, liabilities or obligations or in taking or omitting any
other actions for or in connection with the Trust are, and shall be deemed to
be, acting as Trustees, officers, employees or agents of the Trust and not in
their own individual capacities. No Shareholder and, except to the extent
provided in Section 7.1, no Trustee, officer, employee or agent shall be liable
for any debt, claim, demand, judgment, decree, liability or obligation of any
kind (in tort, contract or otherwise) of, against or with respect to the Trust,
arising out of any action taken or omitted for or on behalf of the Trust and the
Trust shall be solely liable therefor and resort shall be had solely to the
Trust Estate for the payment or performance thereof, and no Shareholder and,
except as aforesaid, no Trustee, officer, employee or agent shall be subject to
any personal liability whatsoever, in tort, contract or otherwise, to any other
Person or Persons in connection with the Trust Estate or the affairs of the
Trust (or any actions taken or omitted for or on behalf of the Trust), and all
such other Persons shall look solely to the Trust Estate for satisfaction of
claims of any nature arising in connection with the Trust Estate or the affairs
of the Trust (or any action taken or omitted for or on behalf of the Trust).
Each Shareholder shall be entitled to pro rata indemnity from the Trust Estate
if, contrary to the provisions hereof, such Shareholder shall be held to any
personal liability.
7.3 Express Exculpatory Clauses and Instruments. Any written instrument
creating an obligation of the Trust shall include a reference to this
Declaration and provide that neither the Shareholders nor the Trustees nor
officers, employees or agents of the Trust shall be liable thereunder and that
all Persons shall look solely to the Trust Estate for the payment of any claim
thereunder or for the performance thereof; however, the omission of such
provision from any such instrument shall not render the Shareholder or any
Trustee, officer, employee or agent of the Trust
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liable nor shall the Trustees or any officer, employee or agent of the Trust be
liable to anyone for such omission.
7.4 Indemnification and Reimbursement of Trustees, Officers, Employees
and Agents. Any Person made a party to any action, suit or proceeding or against
whom a claim or liability is asserted by reason of the fact that he, his
testator or intestate was or is a Trustee, officer, employee or agent of the
Trust shall be indemnified and held harmless by the Trust against judgments,
fines, amounts paid on account thereof (whether in settlement or otherwise) and
reasonable expenses, including attorneys' fees, actually and reasonably incurred
by him in connection with the defense of such action, suit, proceeding, claim or
alleged liability or in connection with any appeal therein, whether or not the
same proceeds to judgment or is settled or otherwise brought to a conclusion;
provided, however, that no such Person shall be so indemnified or reimbursed for
any claim, obligation or liability as to which he shall have been adjudicated
not to have acted in good faith in the reasonable belief that his actions were
in the best interests of the Trust; and provided further that such Person gives
prompt notice thereof, executes such documents and takes such action as will
permit the Trust to conduct the defense or settlement thereof and cooperates
therein, but the failure to do any of the foregoing shall not deprive such
Person of the right to indemnity hereunder except to the extent that the Trust
is actually prejudiced by such failure. In the event of a settlement approved by
the Trustees of any such claim, alleged liability, action, suit or proceeding
(which approval shall not be unreasonably withheld), indemnification and
reimbursement shall be provided except as to such matters covered by the
settlement as to which the Trust is advised by its counsel that such Person
would, if the matter were adjudicated, be found not to have acted in good faith
in the reasonable belief that his actions were in the best interests of the
Trust. Such rights of indemnification and reimbursement shall be satisfied only
out of the Trust Estate. The rights accruing to any Person under these
provisions shall not exclude any other right to which he may be lawfully
entitled, nor shall anything contained herein restrict the right of the Trust to
indemnify or reimburse such person in any proper case even though not
specifically provided for herein, nor shall anything contained herein restrict
such Person's right to contribution as may be available under applicable law.
The Trustees shall make advance payments in connection with indemnification
under this Section 7.4, provided that the indemnified Person shall have given a
written undertaking to reimburse the Trust in the event it is subsequently
determined that he is not entitled to such indemnification, which undertaking
shall be accepted without regard to the financial ability of such Person to make
repayment.
Any action taken by or conduct on the part of a Trustee, officer,
employee or agent of the Trust in conformity with or in good faith reliance upon
the provisions of Section 7.5 shall not, for the purposes of this Trust
(including without limitation Sections 7.1, 7.2 and 7.3 and this Section 7.4)
constitute willful misfeasance, bad faith, or a failure to act in good faith in
the reasonable belief that the action was in the best interests of the Trust.
7.5 Right of Trustees, Officers, Employees and Agents to Own Shares or
Other Property and to Engage in Other Business. Any Trustee or officer, employee
or agent of the Trust may acquire, own, hold and dispose of Shares in the Trust,
for his individual account, and may exercise
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all rights of a Shareholder to the same extent and in the same manner as if he
were not a Trustee or officer, employee or agent of the Trust. Any Trustee or
officer, employee or agent of the Trust may, in his personal capacity or in a
capacity of trustee, officer, director, stockholder, partner, member, advisor or
employee of any Person or otherwise, have business interests and engage in
business activities similar to or in addition to those relating to the Trust,
which interests and activities may be similar to and competitive with those of
the Trust and may include the acquisition, syndication, holding, management,
development, operation or disposition, for his own account or for the account of
such Person or others, of interests in Mortgages, interests in Real Property, or
interests in Persons engaged in the real estate business. Each Trustee, officer,
employee and agent of the Trust shall be free of any obligation to present to
the Trust any investment opportunity which comes to him in any capacity other
than solely as Trustee, officer, employee or agent of the Trust, even if such
opportunity is of a character which, if presented to the Trust, could be taken
by the Trust; provided, however, that the provisions of this sentence shall not
extend, with respect to interests in Real Property which could be acquired by
the Trust consistent with its then existing policies, to any of such Trustees or
agents who are Affiliated Trustees or would be were they Trustees rather than
agents, or to any officer or employee of the Trust or (at a time when there is
no Advisor or other person providing an investment program for the Trust) to any
Trustee of the Trust, who in failing to present such opportunity is not acting
as a trustee, officer, director, stockholders, partner, member, advisor or
employee of any Person other than the Trust but is acting for his own personal
account. Subject to the provisions of Article IV and Section 7.6, any Trustee or
officer, employee or agent of the Trust may be interested as trustee, officer,
director, stockholder, partner, member, advisor or employee of, or otherwise
have a direct or indirect interest in, any Person who may be engaged to render
advice or services to the Trust, and may receive compensation from such Person
as well as compensation as Trustee, officer, employee or agent or otherwise
hereunder. None of these activities shall be deemed to conflict with his duties
and powers as Trustee or officer, employee or agent of the Trust.
7.6 Transactions Between Trustees, Officers, Employees or Agents and
the Trust. Except as otherwise provided by this Declaration, and in the absence
of fraud, a contract, act or other transaction, between the Trust and any other
Person, or in which the Trust is interested, shall be valid and no Trustee,
officer, employee or agent of the Trust shall have any liability as a result of
entering into any such contract, act or transaction, even though (a) one or more
of the Trustees, officers, employees or agents are directly or indirectly
interested in or connected with, or are trustees, partners, directors,
employees, officers or agents of such other Person, or (b) one or more of the
Trustees, officers, employees or agent of the Trust, individually or jointly
with others, is a party or are parties to, or directly or indirectly interested
in, or connected with, such contract, act or transaction, provided that (i) such
interest or connection is disclosed or known to the Trustees and thereafter the
Trustees authorize or ratify such contract, act or other transaction by
affirmative vote of a majority of the Trustees who are not interested or (ii)
such interest or connection is disclosed or known to the Shareholders, and
thereafter such contract, act or transaction is approved by Shareholders holding
a majority of the Shares then outstanding and entitled to vote thereon.
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Notwithstanding any other provision of this Declaration, the Trust
shall not engage in a transaction with (a) any Trustee, officer, employee or
agent of the Trust (acting in his individual capacity), (b) any director,
trustee, partner, officer, employee or agent (acting in his individual capacity)
of the Advisor or any other investment advisor of the Trust, (c) the Advisor or
any other investment advisor of the Trust or (d) an Affiliate of any of the
foregoing, except to the extent that such transaction has, after disclosure of
such affiliation, been approved or ratified in accordance with the final
paragraph of Section 2.6, after a determination by them that to the extent
applicable:
(a) such transaction is fair and reasonable to the Trust and
the Shareholders;
(b) based upon an appraisal by a qualified independent real
estate appraiser who shall have been approved by a majority of
Unaffiliated Trustees (or, if the transaction is with a Person other
than the Advisor or an Affiliate of the Advisor, a majority of the
Trustees not having any interest in such transaction and not Affiliates
of any party to the transaction), the total consideration is not in
excess of the appraised value of the interest in Real Property being
acquired, if an acquisition is involved, or less than the appraised
value of the interest in Real Property being disposed of, if a
disposition is involved; and
(c) if such transaction involves payments by the Trust for
services rendered to the Trust by a Person in a capacity other than
that of Advisor, Trustee or Trust officer, (1) the compensation is not
in excess of the compensation, if any, paid to such Person by any other
person who is not an Affiliate of such Person, for any comparable
services in the same geographic area, and (2) the compensation is not
greater than the charges for comparable services generally available in
the same geographic area from other Persons who are competent and not
affiliated with any of the parties involved;
No disposition of a Permitted Investment to an Affiliate of the Trust or the
Advisor shall be accomplished without the approval of Shareholders holding a
majority of the Shares then outstanding and entitled to vote thereon. This
Section 7.6 shall not prevent any sale of Shares issued by the Trust for the
public offering thereof in accordance with a registration statement filed with
the Securities and Exchange Commission under the Securities Act of 1933. The
Trustees are not restricted by this Section 7.6 from forming a corporation,
partnership, trust or other business association owned by any Trustee, officer,
employee or agent or by their nominees for the purpose of holding title to
property of the Trust or managing property of the Trust providing their motive
for the formation of such business association is not for their own enrichment.
7.7 Restriction of Duties and Liabilities. The Shareholders, Trustees,
officers, employees and agents shall in no event have any greater duties than
those established by this Declaration of Trust or, in cases as to which such
duties are not so established, than those of the shareholders, directors,
officers, employees and agents of a Massachusetts business corporation in effect
from time to time.
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7.8 Persons Dealing with Trustees, Officers, Employees or Agents. Any
act of the Trustees, officer, employees or agents purporting to be done in their
capacity as such, shall, as to any Persons dealing with such Trustees, officers,
employees or agents, be conclusively deemed to be within the purposes of this
Trust and within the powers of the Trustees, officers, employees or agents. No
Person dealing with the Trustees or any of them, or with the officers, employees
or agents of the Trust, shall be bound to see to the application of any funds or
property passing into their hands or control. The receipt of the Trustees or any
of them, or of authorized officers, employees or agents of the Trust, for moneys
or other consideration, shall be binding upon the Trust.
7.9 Reliance. The Trustees and the officers, employees and agents of
the Trust may consult with counsel (which may be a firm in which one or more of
the Trustees or the officers, employees or agents of the Trust is or are
members) and the advice or opinion of such counsel shall be full and complete
personal protection to all the Trustees and the officers, employees and agents
of the Trust in respect of any action taken or suffered by them in good faith
and in reliance on or in accordance with such advice or opinion. In discharging
their duties, Trustees or officers, employees or agents of the Trust, when
acting in good faith, may rely upon financial statements of the Trust
represented to them to fairly present the financial position of the Trust by the
chief executive officer of the Trust or the officer of the Trust having charge
of its books of account, or stated in a written report by an independent
certified public accountant fairly to present the financial position of the
Trust. The Trustees and the officers, employees and agents of the Trust may
rely, and shall be personally protected in acting, upon any instrument or other
document believed by them to be genuine.
7.10 Income Tax Status. Anything to the contrary herein notwithstanding
and without limitation of any rights of indemnification or non-liability of the
Trustees herein, said Trustees by this Declaration make no commitment or
representation that the Trust will qualify for the dividends paid deduction
permitted by the Internal Revenue Code and by the rules and regulations
thereunder pertaining to real estate investment trusts in any given year. The
failure of the Trust to qualify as a real estate investment trust under the
Internal Revenue Code shall not render the Trustees liable to the Shareholders
or to any other person or in any manner operate to annul the Trust.
ARTICLE VIII
DURATION, AMENDMENT AND TERMINATION OF TRUST
8.1 Duration of Trust. Unless the Trust is sooner terminated as
otherwise provided herein, the Trust shall continue in such manner that the
Trustees shall have all the powers and discretions, express and implied,
conferred upon them by law or by this Declaration until December 31, 2018;
provided, however, that any plan for the termination of the Trust which
contemplates the distribution to the Shareholders of Securities or other
property-in-kind (other than the right promptly to receive cash) shall require
the affirmative vote or written consent of the holders of Shares representing a
majority of the total number of votes authorized to be cast by Shares then
outstanding and entitled to vote thereon; and provided further that the Trust
may be terminated at any time prior
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to that set forth above by the affirmative vote at a meeting of Shareholders of
the holders of Shares representing a majority of the total number of votes
authorized to be cast by Shares then outstanding and entitled to vote thereon.
8.2 Termination of Trust.
(a) Upon the termination of the Trust:
(1) the Trust shall carry on no business
except for the purpose of winding up
its affairs;
(2) the Trustees shall proceed to wind
up the affairs of the Trust and all
the powers of the Trustees under
this Declaration shall continue
until the affairs of the Trust shall
have been wound up, including the
power to fulfill or discharge the
contracts of the Trust, collect its
assets, sell, convey, assign,
exchange, transfer or otherwise
dispose of all or any part of the
remaining Trust Estate to one or
more persons at public or private
sale for consideration which may
consist in whole or in part of cash,
Securities or other property of any
kind, discharge or pay its
liabilities, and do all other acts
appropriate to liquidate its
business; and
(3) after paying or adequately providing
for the payment of all liabilities,
and upon receipt of such releases,
indemnities and refunding
agreements, as they deem necessary
for their protection, the Trustees
may distribute the remaining Trust
Estate, in cash or, subject to
Section 8.1, in kind or partly each,
among the Shareholders according to
their respective rights.
(b) After termination of the Trust and distribution to the
Shareholders as herein provided, the Trustees shall execute and lodge
among the records of the Trust an instrument in writing setting forth
the fact of such termination and such distribution, a copy of which
instrument shall be filed with the Secretary of the Commonwealth of
Massachusetts, and the Trustees shall thereupon be discharged from all
further liabilities and duties hereunder and the rights and interests
of all Shareholders shall thereupon cease.
8.3 Amendment Procedure. This Declaration may be amended (except as to
the limitation of personal liability of the Shareholders, Trustees, officers,
employees and agents of the Trust and the prohibition of assessments upon
Shareholders) at a meeting of Shareholders by holders of Shares representing a
majority of the total number of votes authorized to be cast by Shares then
outstanding
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and entitled to vote thereon. Approval in accordance with the final paragraph of
Section 2.6 shall also be required for any such amendment. The Trustees may,
with the approval of the committee consisting solely of at least one
Unaffiliated Trustee and two Affiliated Trustees, and without Shareholder
approval, change the investment policies of the Trust from time to time, by
amendment of Section 5.1 herein or any other provision of this Declaration. The
Trustees may also amend this Declaration without the vote or consent of
Shareholders if they deem it necessary to conform this Declaration to the
requirements of (i) the REIT Provisions of the Internal Revenue Code, (ii) other
applicable Federal laws or regulations or (iii) any state securities or "blue
sky" laws or requirements of administrative agencies thereunder in connection
with the initial public offering of Shares, but the Trustees shall not be liable
for failing so to do. Actions by the Trustees pursuant to the second paragraph
of Section 1.1 or pursuant to Section 9.6(a) that result in amending this
Declaration shall be effected without vote or consent of Shareholders.
Any amendment pursuant to any Section of this Declaration of Trust
shall not become effective until a certification in recordable form signed by a
majority of the Trustees setting forth an amendment and reciting that it was
duly adopted as aforesaid or a copy of this Declaration, as amended, in
recordable form, and executed by a majority of the Trustees, is filed with the
Secretary of the Commonwealth of Massachusetts.
8.4 Transfer to Successor; Merger. The Trustees, with the approval of a
majority of the Trustees (including a majority of the Unaffiliated Trustees) and
the affirmative vote or written consent of the holders of Shares representing a
of the total number of votes authorized to be cast by Shares then outstanding
and entitled to vote thereon, shall have the power to cause to be organized or
to assist in organizing a corporation or corporations under the laws of any
jurisdiction or any other trust, partnership, association, or other organization
to take over the Trust Estate or any part or parts thereof or to carry on any
business in which the Trust shall directly or indirectly have any interest, and
to sell, convey and transfer the Trust Estate or any part or parts thereof to
any such corporation, trust, partnership, association, or organization in
exchange for the Shares or Securities thereof or otherwise, and to lend money
to, subscribe for the Shares or Securities of, and enter into any contracts with
any such corporation, trust, partnership, association, or organization, or any
corporation, trust partnership, association, or organization in which the Trust
holds or is about to acquire Shares or any other interest. The Trustees may also
cause a merger or consolidation between the Trust or any successor thereto and
any such corporation, trust, partnership, association or organization if and to
the extent permitted by law, provided that under the law then in effect, the
federal income tax benefits available to qualified real estate investment trusts
and their shareholders, or substantially similar benefits, are also available to
such corporation, trust, partnership, association, or organization and its
stockholders or members, and provided that the resulting investment would be
substantially equal in quality and substantially the same in type as an
investment in the Shares.
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ARTICLE IX
MISCELLANEOUS
9.1 Applicable Law. This Declaration is executed and acknowledged by
the Trustees in the Commonwealth of Massachusetts and with reference to the
statutes and laws thereof and the rights of all parties and the construction and
effect of every provision hereof shall be subject to and construed according to
statutes and laws of such Commonwealth.
9.2 Index and Headings for Reference Only. The index and headings
preceding the text, articles and sections hereof have been inserted for
convenience and reference only and shall not be construed to affect the meaning,
construction or effect of this Declaration.
9.3 Successors in Interest. This Declaration and the Trustees'
Regulations shall be binding upon and inure to the benefit of the undersigned
Trustees and their successors, assigns, heirs, distributees and legal
representatives, and every Shareholder and his successors, assigns, heirs,
distributees and legal representatives.
9.4 Inspection of Records. Trust records shall be available for
inspection by Shareholders at the same time and in the same manner and to the
extent that comparable records of a Massachusetts business corporation would be
available for inspection by shareholders under the laws of the Commonwealth of
Massachusetts. Except as specifically provided for in this Declaration,
Shareholders shall have no greater right than shareholders of a Massachusetts
business corporation to require financial or other information from the Trust,
Trustees or officers of the Trust. Any Federal or state securities
administration or other similar authority shall have the right, at reasonable
times during business hours and for proper purposes, to inspect the books and
records of the Trust.
9.5 Counterparts. This Declaration may be simultaneously executed in
several counterparts, each of which when so executed shall be deemed to be an
original and such counterparts together shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
9.6 Provisions of the Trust in Conflict with Law or Regulations;
Severability.
(a) The provisions of this Declaration are severable, and if
the Trustees shall determine, with the advice of counsel, that any one
or more of such provisions (the "Conflicting Provisions") are in
conflict with the REIT Provisions of the Internal Revenue Code, or with
other applicable Federal laws and regulations, the Conflicting
Provisions shall be deemed never to have constituted a part of the
Declaration; provided, however, that such determination by the Trustees
shall not affect or impair any of the remaining provisions of this
Declaration or render invalid or improper any action taken or omitted
(including but not limited to the election of Trustees) prior to such
determination. A certification in recordable form signed by a of the
Trustees setting forth any such determination and reciting that it was
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duly adopted by the Trustees, or a copy of this Declaration, with the
Conflicting Provisions removed pursuant to such a determination, in
recordable form, signed by a of the Trustees, shall be conclusive
evidence of such determination when filed with the Secretary of the
Commonwealth of Massachusetts. The Trustees shall not be liable for
failure to make any determination under this Section 9.6(a). Nothing in
this Section 9.6(a) shall in any way limit or affect the right of the
Trustees to amend this Declaration as provided in Section 8.3.
(b) If any provision of this Declaration shall be held invalid
or unenforceable, such invalidity of unenforceability shall attach only
to such provision and shall not in any manner affect or render invalid
or unenforceable any other provision of this Declaration, and this
Declaration shall be carried out as if any such invalid or
unenforceable provision were not contained herein.
9.7 Certifications. The following certifications shall be final and
conclusive as to any Persons dealing with the Trust:
(a) a certification of a vacancy among the Trustees by reason
of resignation, removal, increase in the number of Trustees,
incapacity, death or otherwise, when made in writing by a of the
remaining Trustees;
(b) a certification as to the individuals holding office as
Trustees or officers at any particular time, when made in writing by
the secretary of the Trust or by any Trustee;
(c) a certification that a copy of this Declaration or of the
Trustees' Regulations is a true and correct copy thereof as then in
force, when made in writing by the secretary of the Trust or by any
Trustee;
(d) the certifications referred to in Sections 2.7, 8.3 and
9.6(a); and
(e) a certification as to any actions by Trustees, other than
the above, when made in writing by the secretary of the Trust or by any
Trustee.
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IN WITNESS WHEREOF, the undersigned have signed these presents all on
the day and year first above written.
- ----------------------------- ----------------------------------
Karl L. Blaha Thomas A. Holland
- ----------------------------- ----------------------------------
A. Cal Rossi, Jr. Cooper B. Stuart
- -----------------------------
Al Gonzalez
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EXHIBIT B
Form of New Advisory Agreement
[begins on next page]
<PAGE> 76
EXHIBIT B
ADVISORY AGREEMENT
BETWEEN
EQK REALTY INVESTORS I
AND
BASIC CAPITAL MANAGEMENT, INC.
THIS AGREEMENT dated as of _____, 1998, between EQK Realty Investors I,
a Massachusetts business trust (the "Trust") and Basic Capital Management, Inc.,
a Nevada corporation (the "Advisor")
W I T N E S S E T H:
WHEREAS:
1. The Trust's sole real estate asset is Oak Tree Village, a retail
shopping center located in Lubbock, Texas.
2. The Trust is a real estate investment trust.
3. The Advisor and its employees have extensive experience in the
administration of real estate assets and the origination, structuring and
evaluation of real estate and mortgage investments.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties agree as follows:
1. DUTIES OF THE ADVISOR. Subject to the supervision of the Trust's
Board of Trustees, the Advisor will be responsible for the day-to-day operations
of the Trust and, subject to Section 17 hereof, shall provide such services and
activities relating to the assets, operations and business plan of the Trust as
may be appropriate, including:
(a) preparing and submitting an annual budget and business
plan for approval by the Board of Trustees (the "Business Plan");
(b) using its best efforts to present to the Trust a
continuing and suitable investment program consistent with the investment
policies and objectives of the Trust as set forth in the Business Plan;
<PAGE> 77
(c) using its best efforts to present to the Trust investment
opportunities consistent with the Business Plan and such investment program as
the Trustees may adopt from time to time;
(d) furnishing or obtaining and supervising the performance of
the ministerial functions in connection with the administration of the
day-to-day operations of the Trust, including the investment of reserve funds
and surplus cash in short-term money market investments;
(e) serving as the Trust's investment and financial advisor
and providing research, economic, and statistical data in connection with the
Trust's investments and investment and financial policies;
(f) on behalf of the trust, investigating, selecting and
conducting relations with borrowers, lenders, mortgagors, brokers, investors,
builders, developers and others; provided however, that the Advisor shall not
retain on the Trust's behalf any consultants or third party professionals, other
than legal counsel, without prior Board approval;
(g) consulting with the Trustees and furnishing the Trustees
with advice and recommendations with respect to the making, acquiring (by
purchase, investment, exchange, or otherwise) , holding, and disposition
(through sale, exchange, or otherwise) of investments consistent with the
Business Plan of the Trust;
(h) obtaining for the Trustees such services as may be
required in acquiring and disposing of investments, disbursing and collecting
the funds of the Trust, paying the debts and fulfilling the obligations of the
Trust, and handling, prosecuting, and settling any claims of the Trust,
including foreclosing and otherwise enforcing mortgage and other liens securing
investments;
(i) obtaining for and at the expense of the Trust such
services as may be required for property management, loan disbursements, and
other activities relating to the investments of the Trust, provided, however,
the compensation for such services shall be agreed to by the Trust and the
service provider;
(j) advising the Trust in connection with public or private
sales of shares or other securities of the Trust, or loans to the Trust, but in
no event in such a way that the Advisor could be deemed to be acting as a broker
dealer or underwriter;
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(k) quarterly and at any other time requested by the Trustees,
making reports to the Trustees regarding the Trust's performance to date in
relation to the Trust's approved Business Plan and its various components, as
well as the Advisor's performance of the foregoing services;
(1) making or providing appraisal reports, where appropriate,
on investments or contemplated investments of the Trust;
(m) assisting in preparation of reports and other documents
necessary to satisfy the reporting and other requirements of any governmental
bodies or agencies and to maintain effective communications with the holders of
shares of beneficial interest of the Trust (individually, a "shareholder" and
collectively, "shareholders"); and
(n) doing all things necessary to ensure its ability to render
the services contemplated herein, including providing office space and office
furnishings and personnel necessary for the performance of the foregoing
services as Advisor, all at its own expense, except as otherwise expressly
provided for herein.
2. NO PARTNERSHIP OR JOINT VENTURE. The Trust and the Advisor are not
partners or joint venturers with each other, and nothing herein shall be
construed so as to make them such partners or joint venturers or impose any
liability as such on either of them.
3. RECORDS. At all times, the Advisor shall keep proper books of
account and records of the Trust's affairs which shall be accessible for
inspection by the Trust at any time during ordinary business hours.
4. ADDITIONAL OBLIGATIONS OF THE ADVISOR. The Advisor shall refrain
from any action (including, without limitation, furnishing or rendering services
to tenants of property or managing or operating real property) that would (a)
adversely affect the status of the Trust as a real estate investment trust, as
defined and limited in Sections 856-860 of the Internal Revenue Code, (b)
violate any law, rule, regulation, or statement of policy of any governmental
body or agency having jurisdiction over the Trust or over its securities, (c)
cause the Trust to be required to register as an investment company under the
Investment Company Act of 1940, or (d) otherwise not be permitted by the Trust's
Amended and Restated Declaration of Trust.
5. BANK ACCOUNTS. The Advisor may establish and maintain one or more
bank accounts in its own name, and may collect and deposit into any such account
or accounts, and disburse from
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any such account or accounts, any money on behalf of the Trust, under such terms
and conditions as the Trustees may approve, provided that no funds in any such
account shall be commingled with funds of the Advisor; and the Advisor shall
from time to time render appropriate accounting of such collections and payments
to the Trustees and to the auditors of the Trust.
6. BOND. The Advisor shall maintain a fidelity bond with a responsible
surety company in such amount as may be required by the Trustees from time to
time, covering all directors, officers, employees, and agents of the Advisor
handling funds of the Trust and any investment documents or records pertaining
to investments of the Trust. Such bond shall inure to the benefit of the Trust
in respect to losses of any such property from acts of such directors, officers,
employees, and agents through theft, embezzlement, fraud, negligence, error, or
omission or otherwise, the premium for said bond to be at the expense of the
Trust.
7. INFORMATION FURNISHED ADVISOR. The Trustees shall have the right to
change the Business Plan at any time, effective upon receipt by the Advisor of
notice of such change. The Trust shall furnish the Advisor with a certified copy
of all financial statements, a signed copy of each report prepared by
independent certified public accountants, and such other information with regard
to the Trust's affairs as the Advisor may from time to time reasonably request.
8. CONSULTATION AND ADVICE. In addition to the services described
above, the Advisor shall consult with the Trustees, and shall, at the request of
the Trustees or the officers of the Trust, furnish advice and recommendations
with respect to any aspect of the business and affairs of the Trust, including
any factors that in the Advisor's best judgment should influence the policies of
the Trust.
9. ANNUAL BUSINESS PLAN AND BUDGET. No later than January 15th of each
year, the Advisor shall submit to the Trustees a written Business Plan for the
current Fiscal Year of the Trust. Such Business Plan shall include a
twelve-month forecast of operations and cash flow with explicit assumptions and
a general plan for asset sales or acquisitions, lending, foreclosure and
borrowing activity, other investments or ventures and proposed securities
offerings or repurchases or any proposed restructuring of the Trust. To the
extent possible, the Business Plan shall set forth the Advisor's recommendations
and the basis therefor with respect to all material investments of the Trust.
Upon approval by the Board of Trustees, the Advisor shall be authorized to
conduct the
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business of the Trust in accordance with the explicit provisions of the Business
Plan, specifically including the borrowing, leasing, maintenance, capital
improvements, renovations and sale of investments set forth in the Business
Plan. Any transaction or investment not explicitly provided for in the approved
Business Plan shall require the prior approval of the Board of Trustees unless
made pursuant to authority expressly delegated to the Advisor. Within sixty (60)
days of the end of each calendar quarter, the Advisor shall provide the Board of
Trustees with a report comparing the Trust's actual performance for such quarter
against the Business Plan.
10. DEFINITIONS. As used herein, the following terms shall have the
meanings set forth below:
(a) "Affiliate" shall mean, as to any Person, any other Person
who owns beneficially, directly, or indirectly, it or more of the outstanding
capital stock, shares or equity interests of such Person or of any other Person
which controls, is controlled by, or is under common control with such Person or
is an officer, retired officer, director, employee, partner, or trustee
(excluding a noninterested trustee not otherwise affiliated with the entity) of
such Person or of any other Person which controls, is controlled by, or is under
common control with, such Person.
(b) "Appraised Value" shall mean the value of a Real Property
according to an appraisal made by an independent qualified appraiser who is a
member in good standing of the American Institute of Real Estate Appraisers and
is duly licensed to perform such services in accordance with the applicable
state law, or, when pertaining to Mortgage Loans, the value of the underlying
property as determined by the Advisor.
(c) "Book Value" of an asset or assets shall mean the value of
such asset or assets on the books of the Trust, before provision for
amortization, depreciation, depletion or valuation reserves and before deducting
any indebtedness or other liability in respect thereof, except that no asset
shall be valued at more than its fair market value as determined by the
Trustees.
(d) "Book Value of Invested Assets" shall mean the Book Value
of the Trust's total assets (without deduction of any liabilities), but
excluding (i) goodwill and other intangible assets, (ii) cash, and (iii) cash
equivalent investments with terms which mature in one year or less.
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(e) "Business Plan" shall mean the Trust's investment policies
and objectives and the capital and operating budget based thereon, approved by
the Board as thereafter modified or amended.
(f) "Fiscal Year" shall mean any period for which an income
tax return is submitted to the Internal Revenue Service and which is treated by
the Internal Revenue Service as a reporting period.
(g) "Gross Asset Value" shall mean the total assets of the
Trust after deduction of allowance for amortization, depreciation or depletion
and valuation reserves.
(h) "Mortgage Loans" shall mean notes, debentures, bonds, and
other evidences of indebtedness or obligations, whether negotiable or
non-negotiable, and which are secured or collateralized by mortgages, including
first, wraparound, construction and development, and junior mortgages.
(i) "Net Asset Value" shall mean the Book Value of all the
assets of the Trust minus all the liabilities of the Trust.
(j) "Net Income" for any period shall mean the Net Income of
the Trust for such period computed in accordance with generally accepted
accounting principles after deduction of the Gross Asset Fee, but before
deduction of the Net Income Fee, as set forth in Sections 11 (a) and 11(b),
respectively, herein, and inclusive of gain or loss of the sale of assets.
(k) "Net Operating Income" shall mean rental income less
property operations expenses.
(1) "Operating Expenses" shall mean the aggregate annual
expenses regarded as operating expenses in accordance with generally accepted
accounting principles, as determined by the independent auditors selected by the
Trustees and including the Gross Asset Fee payable to the Advisor and the fees
and expenses paid to the Trustees who are not employees or Affiliates of the
Advisor. The operating expenses shall exclude, however, the following:
(i) the cost of money borrowed by the Trust;
(ii) income taxes, taxes and assessments on real property and
all other taxes applicable to the Trust;
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(iii) expenses and taxes incurred in connection with the
issuance, distribution, transfer, registration, and stock exchange
listing of the Trust's securities (including legal, auditing,
accounting, underwriting, brokerage, printing, engraving and other
fees);
(iv) fees and expenses paid to independent mortgage servicers,
contractors, consultants, managers, and other agents retained by or on
behalf of the Trust;
(v) expenses directly connected with the purchase,
origination, ownership, and disposition of Real Properties or Mortgage
Loans (including the costs of foreclosure, insurance, legal,
protective, brokerage, maintenance, repair, and property improvement
services) other than expenses with respect thereto of employees of the
Advisor, except legal, internal auditing, foreclosure and transfer
agent services performed by employees of the Advisor;
(vi) expenses of maintaining and managing real estate equity
interests and processing and servicing mortgage and other loans;
(vii) expenses connected with payments of dividends, interest
or distributions by the Trust to shareholders;
(viii) expenses connected with communications to shareholders
and bookkeeping and clerical expenses for maintaining shareholder
relations including the cost of printing and mailing share
certificates, proxy solicitation materials and reports;
(ix) transfer agent's registrar's and indenture trustee's fees
and charges; and
(x) the cost of any accounting, statistical, bookkeeping or
computer equipment necessary for the maintenance of books and records
of the Trust. Additionally, the following expenses of the Advisor shall
be excluded:
(i) employment expenses of the Advisor's personnel (including
Trustees, officers, and employees of the Trust who are directors,
officers, or employees of the Advisor or its Affiliates) , other than
the expenses of those employee services listed at (v) above;
(ii) rent, telephone, utilities, and office furnishings and
other office expenses of the Advisor (except those relating to a
separate office, if any, maintained by the Trust); and
(iii) the Advisor's overhead directly related to performance
of its functions under this Agreement.
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(m) "Person" shall mean and include individuals, corporations,
limited partnerships, general partnerships, joint stock companies or
associations, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts, or other entities and governments and
agencies and political subdivisions thereof.
(n) "Real Property" shall mean and include land, rights in
land, leasehold interests (including but not limited to interests of a lessor or
lessee therein) , and any buildings, structures, improvements, fixtures, and
equipment located on or used in connection with land, leasehold interests, and
rights in land or interests therein.
All calculations made pursuant to this Agreement shall be
based on statements (which may be unaudited, except as provided herein) prepared
on an accrual, basis consistent with generally accepted accounting principles,
regardless of whether the Trust may also prepare statements on a different
basis. All other terms shall have the same meaning as set forth in the Trust's
Amended and Restated Declaration of Trust.
11. ADVISORY COMPENSATION.
(a) Gross Asset Fee. On or before the twenty-eighth day of
each month during the term hereof, the Trust shall pay to the Advisor, as
compensation for the basic management and advisory services rendered to the
Trust hereunder, a fee at the rate of 0.0625% per month of the average of the
Gross Asset Value of the Trust at the beginning and at the end of the next
preceding calendar month. Without negating the provisions of Sections 18, 19, 22
and 23 hereof, the annual rate of the Gross Asset Fee shall be 0.75% per annum.
(b) Net Income Fee. As an incentive for successful investment
and management of the Trust's assets, the Advisor will be entitled to receive a
fee equal to 7.5% per annum of the Trust's Net Income for each Fiscal Year or
portion thereof for which the Advisor provides services. To the extent the Trust
has Net Income in a quarter, the 7.5% Net Income Fee is to be paid quarterly on
or after the third business day following the filing of the report on Form 10-Q
with the Securities and Exchange Commission, except for the payment for the
fourth quarter, ended December 31, which is to be paid on or after the third
business day following the filing of the report on Form 10-K with the Securities
and Exchange Commission. The 7.5% Net Income Fee is to be cumulative within any
Fiscal Year, such that if the Trust has a loss in any quarter during the Fiscal
Year, each
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subsequent quarter's payment during such Fiscal Year shall be adjusted to
maintain the 7.5% per annum rate, with final settlement being made with the
fourth quarter payment and in accordance with audited results for the Fiscal
Year. The 7.5% Net Income Fee is not cumulative from year to year.
(c) Acquisition Fee. For supervising the acquisition, purchase
or long term lease of Real Property for the Trust, the Advisor is to receive an
Acquisition Fee equal to the lesser of (i) up to 1% of the cost of acquisition,
inclusive of commissions, if any, paid to nonaffiliated brokers; or (ii) the
compensation customarily charged in arm's-length transactions by others
rendering similar property acquisition services as an ongoing public activity in
the same geographical location and for comparable property. The aggregate of
each purchase price of each property (including the Acquisition Fees and all
real estate brokerage fees) may not exceed such property's Appraised Value at
acquisition.
(d) Incentive Fee. To encourage periodic sales of appreciated
Real Property at optimum value and to reward the Advisor for improved
performance of the Trust's Real Property, the Trust shall pay the Advisor, on or
before the 45th day after the close of each Fiscal Year, an Incentive Fee equal
to 10% of the amount, if any, by which the aggregate sales consideration for all
Real Property sold by the Trust during such Fiscal Year exceeds the sum of: (i)
10% of the Trust's Net Income for the Fiscal Year in excess of a 10% return on
shareholders' equity, if any, and (ii) 10% of the excess of the Trust's net
capital gains over net capital losses, if any; provided, however, no Incentive
Fee shall be paid unless (a) such Real Property sold in such Fiscal Year, in the
aggregate, has produced an 8% simple annual return on the Trust's net investment
including capital improvements, calculated over the Trust's holding period,
before depreciation and inclusive of operating income and sales consideration
and (b) the aggregate Net Operating Income from all Real Property owned by the
Trust for all of the prior Fiscal Year and the current Fiscal Year shall be at
least 5% higher in the current Fiscal Year than in the prior Fiscal Year.
(e) Mortgage Placement Fee. For the acquisition or purchase
from an unaffiliated party or the origination of any existing mortgage or loan
by the Trust, the Advisor or an Affiliate is to receive a Mortgage Placement Fee
equal to the lesser of (a) 1% of the amount of the mortgage or loan purchased or
originated by the Trust or (b) a brokerage or commitment fee which is reasonable
and fair under the circumstances.
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(f) Loan Arrangement Fee. For obtaining loans to the Trust or
refinancing on Trust properties, the Advisor or an Affiliate is to receive a
Loan Arrangement Fee equal to the lesser of (a) 1% of the amount of the loan or
the amount refinanced or (b) a brokerage or refinancing fee which is reasonable
and fair under the circumstances; provided, however that no such fee shall be
paid on loans from the Advisor or an Affiliate without the approval of the Board
of Trustees. No fee shall be paid on loan extensions.
12. LIMITATION ON THIRD PARTY MORTGAGE PLACEMENT FEES. The Advisor or
any of its Affiliates shall pay to the Trust, one-half of any compensation
received by the Advisor or any such Affiliate from third parties with respect to
the origination, placement or brokerage of any loan made by the Trust, provided,
however, the compensation retained by the Advisor or Affiliate shall not exceed
the lesser of (a) 2% of the amount of the loan committed by the Trust or (b) a
loan brokerage and commitment fee which is reasonable and fair under the
circumstances.
13. STATEMENTS. The Advisor shall furnish to the Trust not later than
the tenth day of each calendar month, beginning with the second calendar month
of the term of this Agreement, a statement showing the computation of the fees,
if any, payable in respect to the next preceding calendar month (or, in the case
of incentive compensation, for the preceding Fiscal Year, as appropriate) under
the Agreement. The final settlement of incentive compensation for each Fiscal
Year shall be subject to adjustment in accordance with, and upon completion of
the annual audit of the Trust's financial statements; any payment by the Trust
or repayment by the Advisor that shall be indicated to be necessary in
accordance therewith shall be made promptly after the completion of such audit
and shall be reflected in the audited statements to be published by the Trust.
14. COMPENSATION FOR ADDITIONAL SERVICES. If and to the extent that the
Trust shall request the Advisor or any director, officer, partner, or employee
of the Advisor to render services for the Trust other than those required to be
rendered by the Advisor hereunder, such additional services, if performed, will
be compensated separately on terms to be agreed upon between such party and the
Trust from time to time. In particular, but without limitation, if the Trust
shall request that the Advisor perform property management, leasing, loan
disbursement or similar functions, the Trust and the Advisor shall enter into a
separate agreement specifying the obligations of the parties and providing for
reasonable additional compensation to the Advisor for performing such services.
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15. EXPENSES OF THE ADVISOR. Without regard to the amount of
compensation or reimbursement received hereunder by the Advisor, the Advisor
shall bear the following expenses:
(a) employment expenses of the personnel employed by the
Advisor (including Trustees, officers, and employees of the Trust who are
directors, officers, or employees of the Advisor or of any company that
controls, is controlled by, or is under common control with the Advisor),
including, but not limited to, fees, salaries, wages, payroll taxes, travel
expenses, and the cost of employee benefit plans and temporary help expenses
except for those personnel expenses described in Sections 16(e) and (p);
(b) advertising and promotional expenses incurred in seeking
investments for the Trust;
(c) rent, telephone, utilities, office furniture and
furnishings, and other office expenses of the Advisor and the Trust, except as
any of such expenses relates to an office maintained by the Trust separate from
the office of the Advisor; and
(d) miscellaneous administrative expenses relating to
performance by the Advisor of its functions hereunder.
16. EXPENSES OF THE TRUST. The Trust shall pay all of its expenses not
assumed by the Advisor, including without limitation, the following expenses:
(a) the cost of money borrowed by the Trust;
(b) income taxes, taxes and assessments on real property, and
all other taxes applicable to the Trust;
(c) legal, auditing, accounting, underwriting, brokerage,
listing, registration and other fees, printing, and engraving and other
expenses, and taxes incurred in connection with the issuance, distribution,
transfer, registration, and stock exchange listing of the Trust's securities;
(d) fees, salaries, and expenses paid to officers and
employees of the Trust who are not directors, officers or employees of the
Advisor, or of any company that controls, is controlled by, or is under common
control with the Advisor;
(e) expenses directly connected with the origination or
purchase of Mortgage Loans and with the acquisition, disposition, and ownership
of real estate equity interests or other property (including the costs of
foreclosure, insurance, legal, protective, brokerage, maintenance,
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repair, and property improvement services) and including all compensation,
traveling expenses, and other direct costs associated with the Advisor's
employees or other personnel engaged in (i) real estate transaction legal
services, (ii) internal auditing, (iii) foreclosure and other mortgage finance
services, (iv) sale or solicitation for sale of mortgages, (v) engineering and
appraisal services, and (vi) transfer agent services;
(f) expenses of maintaining and managing real estate equity
interests;
(g) insurance, as required by the Trustees (including
trustees' liability insurance);
(h) the expenses of organizing, revising, amending,
converting, modifying, or terminating the Trust; expenses connected with
payments of dividends or interest or distributions in cash or any other form
made or caused to be made by the Trustees to holders of securities of the Trust;
(j) all expenses connected with communications to holders of
securities of the Trust and the other bookkeeping and clerical work necessary in
maintaining relations with holders of securities, including the cost of printing
and mailing certificates for securities and proxy solicitation materials and
reports to holders of the Trust's securities;
(k) the cost of any accounting, statistical, bookkeeping or
computer equipment or computer time necessary for maintaining the books and
records of the Trust and for preparing and filing Federal, State and Local tax
returns;
(1) transfer agent's, registrars, and indenture trustee's fees
and charges;
(m) legal, accounting, investment banking, and auditing fees
and expenses charged by independent parties performing these services not
otherwise included in clauses (c) and (e) of this Section 16;
(n) expenses incurred by the Advisor, arising from the sales
of Trust properties, including those expenses related to carrying out
foreclosure proceedings;
(o) commercially reasonable fees paid to the Advisor for
efforts to liquidate mortgages before maturity, such as the solicitation of
offers and negotiation of terms of sale;
(p) costs and expenses connected with computer services,
including but not limited to employee or other personnel compensation, hardware
and software costs, and related development and installation costs associated
therewith;
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(q) costs and expenses associated with risk management (i.e.
insurance relating to the Trust's assets);
(r) loan refinancing compensation; and
(s) expenses associated with special services requested by the
Trustees pursuant to Section 14 hereof.
17. OTHER ACTIVITIES OF ADVISOR. The Advisor, its officers, directors,
or employees or any of its Affiliates may engage in other business activities
related to real estate investments or act as advisor to any other person or
entity (including another real estate investment trust), including those with
investment policies similar to the Trust, and the Advisor and its officers,
directors, or employees and any of its Affiliates shall be free from any
obligation to present to the Trust any particular investment opportunity that
comes to the Advisor or such persons, regardless of whether such opportunity is
in accordance with the Trust's Business Plan. However, to minimize any possible
conflict, the Advisor shall consider the respective investment objectives of,
and the appropriateness of a particular investment to each such entity in
determining to which entity a particular investment opportunity should be
presented. If appropriate to more than one entity, the Advisor shall present the
investment opportunity to the entity that has had sufficient uninvested funds
for the longest period of time.
18. [RESERVED]
19. TERM; TERMINATION OF AGREEMENT. This Agreement shall continue in
force until the next annual meeting of the shareholders of the Trust and,
thereafter, it shall automatically be renewed from year to year, subject to any
required approval of the shareholders of the Trust and, if any Trustee is an
Affiliate of the Advisor, the approval of the Trustee who is not so affiliated.
Notice of renewal shall be given in writing by the Trustees to the Advisor not
less than 60 days before the expiration of this Agreement or of any extension
thereof. This Agreement may be terminated for any reason without penalty upon 60
days' written notice by the Trust to the Advisor or 120 days' written notice by
the Advisor to the Trust, in the former case by the vote of the Trustee who is
not an Affiliate of the Advisor or by the vote of holders of a majority of the
outstanding shares of the Trust. Notwithstanding the foregoing, however, in the
event of any material change in the
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ownership, control, or management of the Advisor, the Trust may terminate this
Agreement without penalty and without advance notice to the Advisor.
20. AMENDMENTS. This Agreement shall not be changed, modified,
terminated or discharged in whole or in part except by an instrument in writing
signed by both parties hereto, or their respective successors or assigns, or
otherwise as provided herein.
21. ASSIGNMENT. This Agreement shall not be assigned by the Advisor
without the prior consent of the Trust. The Trust may terminate this Agreement
in the event of its assignment by the Advisor without the prior consent of the
Trust. Such an assignment or any other assignment of this Agreement shall bind
the assignee hereunder in the same manner as the Advisor is bound hereunder.
This Agreement shall not be assignable by the Trust without the consent of the
Advisor, except in the case of assignment by the Trust to a corporation,
association, trust, or other organization that is a successor to the Trust. Such
successor shall be bound hereunder and by the terms of said assignment in the
same manner as the Trust is bound hereunder.
22. DEFAULT, BANKRUPTCY, ETC. At the option solely of the Trustees,
this Agreement shall be and become terminated immediately upon written notice of
termination from the Trustees to the Advisor if any of the following events
shall occur:
(a) If the Advisor shall violate any provision of this
Agreement, and after notice of such violation shall not cure such default within
30 days; or
(b) If the Advisor shall be adjudged bankrupt or insolvent by
a court of competent jurisdiction, or an order shall be made by a court of
competent jurisdiction for the appointment of a receiver, liquidator, or trustee
of the Advisor or of all or substantially all of its property by reason of the
foregoing, or approving any petition filed against the Advisor for its
reorganization, and such adjudication or order shall remain in force or unstayed
for a period of 30 days; or
(c) If the Advisor shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the Federal
bankruptcy laws, or for relief under any law for the relief of debtors, or shall
consent to the appointment of a receiver of itself or of all or substantially
all its property, or shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts generally,
as they become due.
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The Advisor agrees that if any of the events
specified in subsections (b) and (c) of this Section 22 shall occur, it will
give written notice thereof to the Trustees within seven days after the
occurrence of such event.
23. ACTION UPON TERMINATION. From and after the effective date of
termination of this Agreement, pursuant to Sections 19, 21 or 22 hereof, the
Advisor shall not be entitled to compensation for further services hereunder but
shall be paid all compensation accruing to the date of termination. The Advisor
shall forthwith upon such termination:
(a) pay over to the Trust all monies collected and held for
the account of the Trust pursuant to this Agreement;
(b) deliver to the Trustees a full accounting, including a
statement showing all payments collected by it and a statement of any monies
held by it, covering the period following the date of the last accounting
furnished to the Trustees; and
(c) deliver to the Trustees all property and documents of the
Trust then in the custody of the Advisor.
24. MISCELLANEOUS. The Advisor shall be deemed to be in a fiduciary
relationship to the shareholders of the Trust. The Advisor assumes no
responsibility under this Agreement other than to render the services called for
hereunder in good faith, and shall not be responsible for any action of the
Trustees in following or declining to follow any advice or recommendations of
the Advisor. Neither the Advisor nor any of its shareholders, directors,
officers, or employees shall be liable to the Trust, the Trustees, the holders
of securities of the Trust or to any successor or assign of the Trust for any
losses arising from the operation of the Trust if the Advisor had determined, in
good faith, that the course of conduct which caused the loss or liability was in
the best interests of the Trust and the liability or loss was not the result of
negligence or misconduct by the Advisor. However, in no event will the
directors, officers or employees of the Advisor be personally liable for any act
or failure to act unless it was the result of such person's willful misfeasance,
bad faith, gross negligence or reckless disregard of duty.
25. NOTICES. Any notice, report, or other communication required or
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report, or other
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communication is accepted by the party to whom it is given, and shall be given
by being delivered at the following addresses of the parties hereto:
The Trustees and/or the Trust:
EQK Realty Investors I
5775 Peachtree Dunwoody Road
Suite 200-D
Atlanta, Georgia 30342-1505
Attention: _______________
The Advisor:
Basic Capital Management, Inc.
10670 North Central Expressway
Suite 600
Dallas, Texas 75231
Attention: Executive Vice President and Chief Financial
Officer
Either party may at any time give notice in writing to the other party
of a change of its address for the purpose of this Section 25.
26. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction, or effect of this Agreement.
27. GOVERNING LAW. This Agreement has been prepared, negotiated and
executed in the State of Texas. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of Texas
applicable to agreements made and to be performed entirely in the State of
Texas.
28. EXECUTION. This instrument is executed and made on behalf of the
Trust by an officer of the Trust, not individually but solely as an officer, and
the obligations under this Agreement are not binding upon, nor shall resort be
had to the private property of, any of the Trustees, stockholders, officers,
employees, or agents of the Trust personally, but bind only the Trust property.
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IN WITNESS WHEREOF, EQK REALTY INVESTORS I and BASIC CAPITAL
MANAGEMENT, INC., by their duly authorized officers, have signed these presents
all as of the day and year first above written.
EQK REALTY INVESTORS I
By:
----------------------------------
BASIC CAPITAL MANAGEMENT, INC.
By:
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EXHIBIT C
Copy of Amended and Restated Articles of Amendment
[begins on next page]
<PAGE> 94
EXHIBIT C
AMENDED AND RESTATED ARTICLES OF AMENDMENT
OF THE ARTICLES OF INCORPORATION OF
AMERICAN REALTY TRUST, INC.
setting forth the
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING
OR OPTIONAL OR OTHER SPECIAL RIGHTS, AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS THEREOF
of
SERIES F CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
AMERICAN REALTY TRUST, INC.
(Pursuant to Section 14-2-1006 of the
Georgia Business Corporation Code)
--------------------------
American Realty Trust, Inc., a corporation organized and existing under
the Georgia Business Corporation Code (hereinafter called the "Corporation"),
hereby certifies:
THAT, pursuant to the authority conferred upon the board of Directors
(the "Board of Directors") by the articles of incorporation, as amended
("Articles of Incorporation") of the Corporation, and pursuant to Section
14-2-1003 of the Georgia Business Corporation Code, the Board of Directors have
recommended by unanimous written consent dated August __, 1998, and the holders
of all of the issued and outstanding shares of Series F Cumulative Convertible
Preferred Stock have unanimously and duly adopted certain amended and restated
recitals and resolutions providing for the certificate of designations,
preferences and relative participating, optional or other special rights and
qualifications, limitations or other restrictions thereof, of a series of
special stock of the Corporation, specifically the Series F Cumulative
Convertible Preferred Stock, which amended and restated recitals and resolutions
are as follows:
WHEREAS, Article Five of the Articles of Incorporation authorizes the
Corporation to issue not more than 100,000,000 shares of common voting stock,
$0.01 par value per share (the "Common Stock"), and 20,000,000 shares of a
special class of stock, $2.00 par value per share (the "Special Stock"), which
Special Stock may be issued from time to time in one or more series and shall be
designated as the Board of Directors may determine to have such voting powers,
preferences,
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limitations and relative rights with respect to the shares of each series of the
class of Special Stock of the Corporation as expressly provided in a resolution
or resolutions providing for the issuance of such series adopted by the Board of
Directors which is vested with the authority in respect thereof;
WHEREAS, 16,681 shares of such Special Stock have been previously
designated as the Series C 10% Cumulative Preferred Stock prior to the date
hereof, all of which have been issued and are outstanding;
WHEREAS, 91,000 shares of such Special Stock have been previously
designated as the Series D Cumulative Preferred Stock prior to the date hereof,
none of which has been issued or is outstanding;
WHEREAS, 80,000 shares of such Special Stock have been previously
designated as the Series E Cumulative Convertible Preferred Stock prior to the
date hereof, none of which has been issued or is outstanding;
WHEREAS, 7,500,000 shares of such Special Stock have been previously
designated as the Series F Cumulative Convertible Preferred Stock prior to the
date hereof, 2,800,000 shares of which have been issued and are currently
outstanding;
WHEREAS, 12,000 shares of such Special Stock have been previously
designated as the Series G Cumulative Convertible Preferred Stock prior to the
date hereof, 1,000 shares of which have been issued and are outstanding;
WHEREAS, 231,750 shares of such Special Stock have been previously
designated as the Series H Cumulative Convertible Preferred Stock prior to the
date hereof, none of which has been issued or is outstanding; and
WHEREAS, the Board of Directors now desires to amend and restate the
Articles of Amendment of the Articles of Incorporation of the Corporation
setting forth the certificate of designations, preferences and relative
participating or optional or other special rights, and qualifications,
limitations or restrictions of the Corporation's Series F Cumulative Convertible
Preferred Stock to (i) increase the number of authorized shares of such series
to 15,000,000, and (ii) modify the voting rights with respect to such series in
order to satisfy the listing criteria of the New York Stock Exchange, all as set
forth herein.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority granted
to the Board of Directors by Article Five of the Articles of Incorporation, and
with the unanimous consent and approval of the holders of all of the issued and
outstanding shares of Series F Preferred Stock, the Board of Directors hereby
amends and restates the Articles of Amendment to the Articles of Incorporation
setting forth the certificate of designations, preferences and relative
participating or optional or other special rights, and qualifications,
limitations or restrictions of the Corporation's Series F Cumulative Convertible
Preferred Stock as follows:
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Section 1. Designation and Amount. The shares of such series shall be
designated as "Series F Cumulative Convertible Preferred Stock" (the "Series F
Preferred Stock") and each share of the Series F Preferred Stock shall have a
par value of $2.00 per share and a preference on liquidation as specified in
Section 6 below. The number of shares constituting the Series F Preferred Stock
shall be 15,000,000. Such number of shares may be increased or decreased by the
Board of Directors by filing articles of amendment as provided in the Georgia
Business Corporation Code; provided, that no decrease shall reduce the number of
shares of Series F Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants; provided further, that no
increase in the authorized amount of shares constituting Series F Preferred
Stock shall be made without the prior written consent of the holders of a
majority of shares of Series F Preferred Stock then outstanding voting
separately as a class.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series F Preferred Stock shall be
entitled to receive, when, as, and if declared by the Board of
Directors and to the extent permitted under the Georgia
Business Corporation Code, out of funds legally available for
the purpose and in preference to and with priority over
dividends upon all Junior Securities, quarterly cumulative
dividends payable in arrears in cash on the fifteenth day
following the end of each calendar quarter (each such date
being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on October 15, 1998, in an amount per share
(rounded to the next highest cent) equal to 10% per annum of
the Adjusted Liquidation Value, as determined immediately
prior to the beginning of such calendar quarter assuming each
year consists of 360 days and each quarter consists of 90
days. The term "Adjusted Liquidation Value" shall mean
Liquidation Value (as defined in Section 6) plus all accrued
and unpaid dividends through the applicable date. The
foregoing is intended to provide a 10% cumulative return,
compounded on a quarterly basis, on the Liquidation Value from
August 16, 1998.
(B) Dividends shall commence accruing cumulatively on outstanding
shares of the Series F Preferred Stock from August 16, 1998 to
and including the date on which the Redemption Price (as
defined in Section 9(A), below) of such shares is paid,
whether or not such dividends have been declared and whether
or not there are profits, surplus or other funds of the
Corporation legally available for the payment of such
dividends. Dividends for the first Quarterly Dividend Payment
Date shall accrue and shall be payable for a period of 45
days. Dividends payable on each Quarterly Dividend Payment
Date shall be dividends accrued and unpaid through the last
Business Day (as defined in Section 3(A) below) of the
immediately preceding calendar month. The Board of Directors
may fix a record date for the determination of holders of
shares of Series F Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon other than a
quarterly dividend paid on the Quarterly Dividend Payment Date
immediately after such dividend accrued; which
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record date shall be not more than 50 days prior to the date
fixed for the payment thereof.
(C) So long as any shares of the Series F Preferred Stock are
outstanding, the Corporation will not make, directly or
indirectly, any distribution (as such term is defined in the
Georgia Business Corporation Code) in respect of Junior
Securities unless on the date specified for measuring
distributions in Section 14-2-640(e) of the Georgia Business
Corporation Code (a) all accrued dividends on the Series F
Preferred Stock for all past quarterly dividend periods have
been paid in full and the full amount of accrued dividends for
the then current quarterly dividend period has been paid or
declared and a sum sufficient for the payment thereof set
apart and (b) after giving effect to such distribution (i) the
Corporation would not be rendered unable to pay its debts as
they become due in the usual course of business and (ii) the
Corporation's total assets would not be less than the sum of
its total liabilities plus the amount that would be needed, if
the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon
dissolution of the holders of the Series F Preferred Stock as
provided in these Articles of Amendment. Dividends shall not
be paid (in full or in part) or declared and set apart for
payment (in full or in part) on any series of Special Stock
(including the Series F Preferred Stock) for any dividend
period unless all dividends, in the case dividends are being
paid in full on the Series F Preferred Stock, or a ratable
portion of all dividends (i.e., so that the amount paid on
each share of each series of Special Stock as a percentage of
total accrued and unpaid dividends for all periods with
respect to each such share is equal), in the case dividends
are not being paid in full on the Series F Preferred Stock,
have been or are, contemporaneously, paid and declared and set
apart for payment on all outstanding series of Special Stock
(including the Series F Preferred Stock) entitled thereto for
each dividend period terminating on the same or earlier date.
If at any time the Corporation pays less than the total amount
of dividends then accrued with respect to the Series F
Preferred Stock, such payment will be distributed ratably
among the then holders of Series F Preferred Stock so that an
equal amount is paid with respect to each outstanding share.
Section 3. Conversion Rights.
(A) The Series F Preferred Stock may be converted at any time and
from time to time in whole or in part after the earliest to
occur of (i) August 15, 2003, (ii) the first Business Day, if
any, occurring after a Quarterly Dividend Payment Date on
which dividends equal to or in excess of 5% of the Liquidation
Value (i.e., $0.50 per share) are accrued and unpaid, or (iii)
the Corporation becomes obligated to mail a statement pursuant
to subsection (G)(iv) below, at the option of the holders
thereof, in accordance with subsection (D) below at the
Conversion Price (as defined below in subsection (D)) into
fully paid and nonassessable Common Stock of the Corporation
by dividing (i) the Adjusted Liquidation Value for such share
of Series
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F Preferred Stock as of the date of conversion by (ii) the
Conversion Price; provided, however, that as to any shares of
Series F Preferred Stock which shall have been called for
redemption, the right of conversion shall terminate at the
close of business on the second full Business Day (unless
otherwise provided, "Business Day" herein shall mean any day
other than a Saturday, a Sunday or a day on which banking
institutions in Dallas, Texas are authorized or obligated by
law or executive order to remain closed) prior to the date
fixed for redemption. Notwithstanding anything to the contrary
herein provided, the Corporation may elect to redeem the
shares of Series F Preferred Stock sought to be converted
hereunder instead of issuing shares of Common Stock in
replacement thereof in accordance with the provisions of
Section 3(D), below.
(B) For purposes of this Section 3, the term "Conversion Price"
shall be and mean the amount obtained (rounded upward to the
next highest cent) by multiplying (i) 0.9 by (ii) the simple
average of the daily closing price of the Common Stock for the
twenty Business Days ending on the last Business Day of the
calender week immediately preceding the date of conversion on
the New York Stock Exchange or, if the shares of Common Stock
are not then being traded on the New York Stock Exchange, then
on the principal stock exchange (including without limitation
NASDAQ NMS or NASDAQ Small Cap) on which such Common Stock is
then listed or admitted to trading as determined by the
Corporation (the "Principal Stock Exchange") or, if the Common
Stock is not then listed or admitted to trading on a Principal
Stock Exchange, the average of the last reported closing bid
and asked prices on such days in the over-the-counter market
or, if no such prices are available, the fair market value per
share of the Common Stock, as determined by the Board of
Directors of the Corporation in its sole discretion. The
Conversion Price shall not be subject to any adjustment as a
result of the issuance of any additional shares of Common
Stock by the Corporation for any purpose, except for stock
splits (whether accomplished by stock dividend or otherwise).
For purposes of calculating the Conversion Price, the term
"Business Day" shall mean a day on which the exchange looked
to for purposes of determining the Conversion Price is open
for business or, if no such exchange, the term "Business Day"
shall have the meaning given such term in Section 3(A), above.
(C) Upon any conversion, fractional shares of Common Stock shall
not be issued but any fractions shall be adjusted by the
delivery of one additional share of Common Stock in lieu of
any cash. Any accrued but unpaid dividends shall be
convertible into shares of Common Stock as provided for in
this Section. The Corporation shall pay all issue taxes, if
any, incurred in respect to the issuance of Common Stock on
conversion, provided, however, that the Corporation shall not
be required to pay any transfer or other taxes incurred by
reason of the issuance of such Common Stock in names other
than those in which the Series F Preferred Stock surrendered
for conversion may stand.
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(D) Any conversion of Series F Preferred Stock into Common Stock
shall be made by the surrender to the Corporation, at the
office of the Corporation set forth in Section 12 hereof or at
the office of the transfer agent for such shares, of the
certificate or certificates representing the Series F
Preferred Stock to be converted, duly endorsed or assigned
(unless such endorsement or assignment be waived by the
Corporation), together with a written request for conversion.
The Corporation shall either (i) issue as of the date of
receipt by the Corporation of such surrender shares of Common
Stock calculated as provided above and evidenced by a stock
certificate delivered to the holder as soon as practicable
after the date of such surrender or (ii) within two Business
Days after the date of such surrender advise the holder of the
Series F Preferred Stock that the Corporation is exercising
its option to redeem the Series F Preferred Stock pursuant to
Section 3(A), above, in which case the Corporation shall have
thirty (30) days from the date of such surrender to pay to the
holder cash in an amount equal to the Conversion Price for
each share of Series F Preferred Stock so redeemed. The date
of surrender of any Series F Preferred Stock shall be the date
of receipt by the Corporation or its agent of such surrendered
shares of Series F Preferred Stock.
(E) A number of authorized shares of Common Stock sufficient to
provide for the conversion of the Series F Preferred Stock
outstanding upon the basis hereinbefore provided shall at all
times be reserved for such conversion. If the Corporation
shall propose to issue any securities or to make any change in
its capital structure which would change the number of shares
of Common Stock into which each share of Series F Preferred
Stock shall be convertible as herein provided, the Corporation
shall at the same time also make proper provision so that
thereafter there shall be a sufficient number of shares of
Common Stock authorized and reserved for conversion of the
outstanding Series F Preferred Stock on the new basis.
(F) The term "Common Stock" shall mean stock of the class
designated as Common Stock of the Corporation on the date the
Series F Preferred Stock is created or stock of any class or
classes resulting from any reclassification or
reclassifications thereof, the right of which to share in
distributions of both earnings and assets is without
limitation in the Articles of Incorporation of the Corporation
as to any fixed amount or percentage and which are not subject
to redemption; provided, that if at any time there shall be
more than one such resulting class, the shares of each such
class then issuable on conversion of the Series F Preferred
Stock shall be substantially in the proportion which the total
number of shares of stock of each such class resulting from
all such reclassifications bears to the total number of shares
of stock of all such classes resulting from all such
reclassifications.
(G) In case the Corporation shall propose at any time before all
shares of the Series F Preferred Stock have been redeemed by
or converted into Common Stock of the Corporation:
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(i) to pay any dividend on the Common Stock
outstanding payable in Common Stock or to make any other
distribution, other than cash dividends to the holders of the
Common Stock outstanding; or
(ii) to offer for subscription to the holders of the
Common Stock outstanding any additional shares of any class or
any other rights or option; or
(iii) to effect any re-classification or
recapitalization of the Common Stock outstanding involving a
change in the Common Stock, other than a subdivision or
combination of the Common Stock outstanding; or
(iv) to merge or consolidate with or into any other
corporation (unless the Corporation is the surviving entity
and holders of Common Stock continue to hold such Common Stock
without modification and without receipt of any additional
consideration), or to sell, lease, or convey all or
substantially all its property or business, or to liquidate,
dissolve or wind up;
then, in each such case, the Corporation shall mail to the holders of
record of each of the shares of Series F Preferred Stock at their last
known addresses as shown by the Corporation's records a statement,
signed by an officer of the Corporation, with respect to the proposed
action, such statement to be so mailed at least thirty (30) days prior
to the date of the taking of such action or the record date for holders
of the Common Stock for the purposes thereof, whichever is earlier. If
such statement relates to any proposed action referred to in clauses
(iii) or (iv) of this subsection (G), it shall set forth such facts
with respect thereto as shall reasonably be necessary to inform the
holders of the Series F Preferred Stock as to the effect of such action
upon the conversion rights of such holders.
Section 4. Voting Rights and Powers. The holders of shares of Series F
Preferred Stock shall have only the following voting rights:
(A) Except as may otherwise be specifically required by law under
Section 14-2-1004 of the Georgia Business Corporation Code or
otherwise provided herein, the holders of the shares of Series
F Preferred Stock shall not have the right to vote such stock,
directly or indirectly, at any meeting of the shareholders of
the Corporation, and such shares of stock shall not be counted
in determining the total number of outstanding shares to
constitute a quorum at any meeting of shareholders;
(B) In the event that, under the circumstances, the holders of the
Series F Preferred Stock are required by law to vote upon any
matter, the approval of such series shall be deemed to have
been obtained only upon the affirmative vote of the holders of
a majority of the shares of the Series F Preferred Stock then
outstanding;
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(C) Except as set forth herein, or as otherwise provided by the
Articles of Incorporation or by law, holders of the Series F
Preferred Stock shall have no voting rights and their consent
shall not be required for the taking of any corporate action;
(D) Notwithstanding anything herein to the contrary, if and
whenever at any time or times all or any portion of the
dividends on Series F Preferred Stock for any six quarterly
dividends, whether or not consecutive, shall be in arrears and
unpaid, then and in any such event, the number of Directors
constituting the Board of Directors shall be increased by two,
and the holders of Series F Preferred Stock, voting separately
as a class, shall be entitled at the next annual meeting of
shareholders, or at a special meeting of holders of Series F
Preferred Stock called as hereinafter provided, to elect two
Directors to fill such newly created Directorships. Each
holder shall be entitled to one vote in such election for each
share of Series F Preferred Stock held. At such time as all
arrearages in dividends on the Series F Preferred Stock shall
have been paid in full and dividends thereon for the current
quarterly period shall have been paid or declared and a sum
sufficient for the payment thereof set aside, then (i) the
voting rights of holders of Series F Preferred Stock described
in this subsection (D) shall cease (subject always to
revesting of such voting rights in the event of each and every
similar future arrearages in quarterly dividends), (ii) the
term of the Directors then in office as a result of the voting
rights described in this subsection (D) shall terminate and
(iii) the number of Directors shall be reduced by the number
of Directors then in office elected pursuant to this
subsection (D). A vacancy in the class of Directors elected
pursuant to this subsection (D) shall be filled by a Director
chosen by the remaining Directors of the class, unless such
vacancy is filled pursuant to the final sentence of subsection
(G);
(E) At any time when the voting right described in subsection (D)
shall have vested and shall remain in the holders of Series F
Preferred Stock, such voting right may be exercised initially
either at a special meeting of holders of Series F Preferred
Stock or at any annual or special shareholders' meeting called
for the purpose of electing Directors, but thereafter it shall
be exercised only at annual shareholders' meetings. If such
voting right shall not already have been initially exercised,
the Secretary of the Corporation may, and upon the written
request of the holders of record of at least 10% of the shares
of Series F Preferred Stock then outstanding shall, call a
special meeting of the holders of Series F Preferred Stock for
the purpose of electing two Directors pursuant to subsection
(D), and notice thereof shall be given to the holders of
Series F Preferred Stock in the same manner as that required
to be given to holders of the Corporation's Common Stock for
the annual meeting of shareholders. Such meeting shall be held
at the earliest practicable date upon the notice required for
special meetings of shareholders of the Corporation, or, if
none, at a time and place designated by the Secretary of the
Corporation.
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(F) At any meeting held for the purpose of electing Directors at
which the holders of Series F Preferred Stock shall have the
right to elect Directors as provided in subsection (D) above,
the presence in person or by proxy of the holders of at least
thirty-five percent (35%) of the then outstanding shares of
Series F Preferred Stock shall be required and be sufficient
to constitute a quorum of Series F Preferred Stock for the
election of Directors by Series F Preferred Stock, and the
vote of the holders of a majority of such shares so present in
person or by proxy at any such meeting at which there shall be
such a quorum shall be required and be sufficient to elect the
members of the Board of Directors which the holders of Series
F Preferred Stock are entitled to elect as hereinabove
provided. At any such meeting or adjournment thereof, (i) the
absence of a quorum of the holders of Series F Preferred Stock
shall not prevent the election of Directors other than the
Directors to be elected by the holders of Series F Preferred
Stock and (ii) in the case of holders of Series F Preferred
Stock entitled to vote for the election of Directors, a
majority of the holders present in person or by proxy of such
class, if constituting less than a quorum as hereinabove
provided, shall have the power to adjourn the meeting for the
election of the Directors that the holders of such class are
entitled to elect, from time to time until a quorum shall be
present, and notice of such adjourned meeting need not be
given unless otherwise required by law, provided that nothing
herein shall affect the conduct of the meeting with respect to
shareholders of any other class.
(G) Any Director who shall have been elected or appointed pursuant
to Section 4(D) shall hold office for a term expiring (subject
to the earlier termination of the default in quarterly
dividends) at the next annual meeting of shareholders, and
during such term may be removed at any time, either with or
without cause, only by the affirmative vote of the holders of
record of a majority of the shares of Series F Preferred Stock
then outstanding at a special meeting of such shareholders
called for such purpose. Any vacancy created by such removal
may also be filled at such meeting.
(H) So long as any shares of Series F Preferred Stock remain
outstanding, the Corporation shall not, without the vote or
written consent by the holders of record of two-thirds of the
outstanding shares of Series F Preferred Stock, amend its
articles of incorporation or bylaws if such amendment would
materially alter or change the existing terms of the Series F
Preferred Stock.
Section 5. Reacquired Shares. Any shares of Series F Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever or
surrendered for conversion hereunder shall no longer be deemed to be outstanding
and all rights with respect to such shares of stock, including the right, if
any, to receive notices and to vote, shall forthwith cease except, in the case
of stock surrendered for conversion hereunder, rights of the holders thereof to
receive Common Stock in exchange therefor. All shares of Series F Preferred
Stock obtained by the Corporation shall be retired and canceled promptly after
the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Special Stock and may be reissued as part of
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a new series of Special Stock subject to the conditions and restrictions on
issuance set forth herein, in the Articles of Incorporation, or in any other
Certificates of Designations creating a series of Special Stock or any similar
stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. The Liquidation
Value of the Series F Preferred Stock shall be $10.00 per share. Upon any
liquidation, dissolution or winding up of the Corporation, and after paying and
providing for the payment of all creditors of the Corporation, the holders of
shares of the Series F Preferred Stock then outstanding shall be entitled,
before any distribution or payment is made upon any Junior Securities (defined
to be and mean the Common Stock and any other equity security of any kind which
the Corporation at any time has issued, issues or is authorized to issue if the
Series F Preferred Stock has priority over such securities as to dividends or
upon liquidation, dissolution or winding up), to receive a liquidation
preference in an amount in cash equal to the Adjusted Liquidation Value as of
the date of such payment, whether such liquidation is voluntary or involuntary,
and the holders of the Series F Preferred Stock shall not be entitled to any
other or further distributions of the assets. If, upon any liquidation,
dissolution or winding up of the affairs of the Corporation, the net assets
available for distribution shall be insufficient to permit payment to the
holders of all outstanding shares of all series of Special Stock of the amount
to which they respectively shall be entitled, then the assets of the Corporation
to be distributed to such holders will be distributed ratably among them based
upon the amounts payable on the shares of each such series of Special Stock in
the event of voluntary or involuntary liquidation, dissolution or winding up, as
the case may be, in proportion to the full preferential amounts, together with
any and all arrearages to which they are respectively entitled. Upon any such
liquidation, dissolution or winding up of the Corporation, after the holders of
Special Stock have been paid in full the amounts to which they are entitled, the
remaining assets of the Corporation may be distributed to holders of Junior
Securities, including Common Stock, of the Corporation. The Corporation will
mail written notice of such liquidation, dissolution or winding up, not less
than twenty (20) nor more than fifty (50) days prior to the payment date stated
therein to each record holder of Series F Preferred Stock. Neither the
consolidation nor merger of the Corporation into or with any other corporation
or corporations, nor the sale or transfer by the Corporation of less than all or
substantially all of its assets, nor a reduction in the capital stock of the
Corporation, nor the purchase or redemption by the Corporation of any shares of
its Special Stock or Common Stock or any other class of its stock will be deemed
to be a liquidation, dissolution or winding up of the Corporation within the
meaning of this Section 6.
Section 7. Ranking. Except as provided in the following sentence, the
Series F Preferred Stock shall rank on a parity as to dividends and upon
liquidation, dissolution or winding up with all other shares of Special Stock
issued by the Corporation. The Corporation shall not issue any shares of Special
Stock of any series which are superior to the Series F Preferred Stock as to
dividends or rights upon liquidation, dissolution or winding up of the
Corporation as long as any shares of the Series F Preferred Stock are issued and
outstanding, without the prior written consent of the holders of at least 66 2/3
of such shares of Series F Preferred Stock then outstanding voting separately as
a class.
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Section 8. Redemption at the Option of the Holder. The shares of Series
F Preferred Stock shall not be redeemable at the option of a holder of Series F
Preferred Stock.
Section 9. Redemption at the Option of the Corporation.
(A) In addition to the redemption right of the Corporation set
forth in Section 3(A), above, the Corporation shall have the
right to redeem all or a portion of the Series F Preferred
Stock issued and outstanding at any time and from time to
time, at its option, for cash. The redemption price of the
Series F Preferred Stock pursuant to this Section 9 shall be
an amount per share (the "Redemption Price") equal to (i) 105%
of the Adjusted Liquidation Value as of the Redemption Date
(as defined in subsection (B) below) during the period from
August 15, 1997 through August 15, 1998; (ii) 104% of Adjusted
Liquidation Value as of the Redemption Date during the period
from August 16, 1998 through August 15, 1999; and (iii) 103%
of the Adjusted Liquidation Value as of the Redemption Date at
any time on or after August 16, 1999.
(B) The Corporation may redeem all or a portion of any holder's
shares of Series F Preferred Stock by giving such holder not
less than twenty (20) days nor more than thirty (30) days
notice thereof prior to the date on which the Corporation
desires such shares to be redeemed, which date shall be a
Business Day (the "Redemption Date"). Such notice shall be
written and shall be hand delivered or mailed, postage
prepaid, to the holder (the "Redemption Notice"). The
Redemption Notice, once given, shall be irrevocable. If
mailed, such notice shall be deemed to be delivered when
deposited in the United States Mail, postage prepaid,
addressed to the holder of shares of Series F Preferred Stock
at his address as it appears on the stock transfer records of
the Corporation. The Redemption Notice shall state (i) the
total number of shares of Series F Preferred Stock held by
such holder; (ii) the total number of shares of the holder's
Series F Preferred Stock that the Corporation intends to
redeem; (iii) the Redemption Date and the Redemption Price;
and (iv) the place at which the holder(s) may obtain payment
of the applicable Redemption Price upon surrender of the share
certificate(s).
(C) If fewer than all shares of the Series F Preferred Stock at
any time outstanding shall be called for redemption, such
shares shall be redeemed pro rata, by lot drawn or other
manner deemed fair in the sole discretion of the Board of
Directors to redeem one or more such shares without redeeming
all such shares of Series F Preferred Stock. If a Redemption
Notice shall have been so mailed, at least two Business Days
prior to the Redemption Date the Corporation shall provide for
payment of a sum sufficient to redeem the applicable number of
shares of Series F Preferred Stock subject to redemption
either by (i) setting aside the sum required to be paid as the
Redemption Price by the Corporation, separate and apart from
its other funds, in trust for the account of the holder(s) of
the shares of Series F Preferred Stock to be
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redeemed or (ii) depositing such sum in a bank or trust
company (either located in the state where the principal
executive office of the Corporation is maintained, such bank
or trust company having a combined surplus of at least
$20,000,000 according to its latest statement of condition, or
such other bank or trust company as may be permitted by the
Articles of Incorporation, or by law) as a trust fund, with
irrevocable instructions and authority to the bank or trust
company to give or complete the notice of redemption and to
pay, on or after the Redemption Date, the applicable
Redemption Price on surrender of certificates evidencing the
share(s) of Series F Preferred Stock so called for redemption
and, in either event, from and after the Redemption Date (a)
the share(s) of Series F Preferred Stock shall be deemed to be
redeemed, (b) such setting aside or deposit shall be deemed to
constitute full payment for such shares(s), (c) such share(s)
so redeemed shall no longer be deemed to be outstanding, (d)
the holder(s) thereof shall cease to be a shareholder of the
Corporation with respect to such share(s), and (e) such
holder(s) shall have no rights with respect thereto except the
right to receive the Redemption Price for the applicable
shares. Any interest on the funds so deposited shall be paid
to the Corporation. Any and all such redemption deposits shall
be irrevocable except to the following extent: any funds so
deposited which shall not be required for the redemption of
any shares of Series F Preferred Stock because of any prior
sale or purchase by the Corporation other than through the
redemption process, subsequent to the date of deposit but
prior to the Redemption Date, shall be repaid to the
Corporation forthwith and any balance of the funds so
deposited and unclaimed by the holder(s) of any shares of
Series F Preferred Stock entitled thereto at the expiration of
one calendar year from the Redemption Date shall be repaid to
the Corporation upon its request or demand therefor, and after
any such repayment of the holder(s) of the share(s) so called
for redemption shall look only to the Corporation for payment
of the Redemption Price thereof. All shares of Series F
Preferred Stock redeemed shall be canceled and retired and no
shares shall be issued in place thereof, but such shares shall
be restored to the status of authorized but unissued shares of
Special Stock.
(D) Holders whose shares of Series F Preferred Stock have been
redeemed hereunder shall surrender the certificate or
certificates representing such shares, duly endorsed or
assigned (unless such endorsement or assignment be waived by
the Corporation), to the Corporation by mail, courier or
personal delivery at the Corporation's principal executive
office or other location so designated in the Redemption
Notice, and upon the Redemption Date the Redemption Price
shall be payable to the order of the person whose name appears
on such certificate or certificates as the owner thereof, and
each surrendered certificate shall be canceled and retired. In
the event fewer than all of the shares represented by such
certificates are redeemed, a new certificate shall be issued
representing the unredeemed shares.
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<PAGE> 106
Section 10. Sinking Fund. The Corporation shall not be required to
maintain any so-called "sinking fund" for the retirement on any basis of the
Series F Preferred Stock.
Section 11. Fractional Shares. The Series F Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of shares of Series F Preferred Stock.
Section 12. Notice. Any notice or request made to the Corporation in
connection with the Series F Preferred Stock shall be given, and shall
conclusively be deemed to have been given and received three Business Days
following deposit thereof in writing, in the U.S. mails, certified mail, return
receipt requested, duly stamped and addressed to the Corporation, to the
attention of its General Counsel, at its principal executive offices (which
shall be deemed to be the address most recently provided to the Securities and
Exchange Commission ("SEC") as its principal executive offices for so long as
the Corporation is required to file reports with the SEC).
IN WITNESS WHEREOF, these Amended and Restated Articles of Amendment
are executed on behalf of the Corporation by its President and attested by its
Secretary as of the ____ day of July, 1998.
----------------------------------
Karl L. Blaha
President
Attest:
- --------------------------
Robert A. Waldman
Secretary
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<PAGE> 107
EXHIBIT D-1
List of EQK Exceptions
As of August 7, 1998
[Exceptions to Representations and Warranties of EQK contained in
Article III]
As to SECTION 3.07(c): The following tenant allowances in excess of $25,000
have been committed to and/or paid since March 31,
1998: Cafe Matangos ($85,000 commitment, of which
$28,333 has been paid); The Gap ($375,000 commitment,
lease net yet executed); Radio Shack ($35,000
commitment, which has not been paid); Joy Buster Brown
($100,000 commitment, lease not yet executed); Strictly
Nails ($30,000 commitment, lease not yet executed);
Lady Footlocker ($35,000 commitment, lease not yet
executed); and Kay Bee Toys ($40,000 commitment, lease
not het executed).
As to SECTION 3.07(m): The following capital expenditures in excess of $25,000
have been made or committed to subsequent to March 31,
1998: parking lot overlay ($70,408 paid); and roof
repairs ($148,109 commited, of which $147,505 has been
paid.
<PAGE> 108
EXHIBIT D-2
List of ART Exceptions
None.
<PAGE> 109
EXHIBIT E
Copy of Amended and Restated Cost Sharing Agreement
[begins on next page]
<PAGE> 110
EXHIBIT E
[EQK LETTERHEAD]
July 14, 1998
Mr. Cooper B. Stuart
Executive Vice President
Basic Capital Management, Inc.
10670 North Central Expressway
Suite 600
Dallas, Texas 75231
RE: COST SHARING AGREEMENT RELATIVE TO PROPOSED ACQUISITION
Dear Cooper:
On March 6, 1997, American Realty Trust ("ART") and EQK Realty Investors I
("EQK") entered into a Cost Sharing Agreement ("Original Cost Sharing
Agreement") in connection with the possibility of ART's acquiring up to 50% of
the outstanding shares of EQK. On July 9, 1997, ART and EQK executed a letter
agreement (the "July 1997 Agreement") that amended, restated and superseded the
Original Cost Sharing Agreement. ART and EQK have recently decided to proceed
towards such an acquisition through a modified structure (the "June 1998
Structure") which supersedes the structures contemplated by the Original Cost
Sharing Agreement and the July 1997 Agreement (the "Old Structures"). This
letter amends, restates and supersedes the July 1997 Agreement.
Significant legal, financial and other costs have been and will be incurred in
connection with the proposed transactions (the "transactions"). As used
herein, "transaction costs" shall mean all out-of-pocket fees and expenses
incurred on or after February 20, 1997 by either EQK or ART in connection with
the transactions, whether or not such transactions are ultimately completed,
and whether or not such fees and expenses were incurred in connection with
pursuing the Old Structures or the June 1998 Structure. Transaction costs
include, without limitation:
(i) legal fees and expenses (including, without limitation, any fees or
expenses incurred as a result of threatened or actual litigation or other
legal proceedings), fees associated with the issuance of a fairness opinion
relating to the Old Structures, an appraisal of Harrisburg East Mall and
any update thereof, printing expenses, accounting fees, costs of a
solicitor used during the proxy solicitation process and all other
out-of-pocket expenses directly related to the proposed transactions.
(ii) all costs paid or obligated to be paid through the date, if any, on
which either party notifies the other that it is terminating negotiations.
<PAGE> 111
Inasmuch as ART and EQK have preliminarily agreed that the pursuit of such a
transaction would be in their mutual interest, and want to provide the
incentives and protections desired by both companies to proceed, the parties
hereby agree to the following sharing of transaction costs, to the extent they
may be incurred:
(1) If the proposed transaction is not completed, by reason of an
inadequate shareholder response to the merger proxy or otherwise, EQK's
liability shall be limited to the lesser of 50% of actual transaction costs
or $100,000, and ART shall be responsible for all additional transaction
costs.
(2) If the proposed transaction is ultimately initiated and successfully
achieves the desired merger in accordance with the definitive agreement,
EQK's liability shall be limited to the lesser of 50% of actual transaction
costs or $150,000, and ART shall be responsible for all additional
transaction costs.
In addition to the foregoing sharing agreement, EQK and ART agree to reconcile
the transaction costs incurred by each party on a regular and timely basis. ART
agrees to provide prompt reimbursement to EQK (not more than 15 days after
submission of a payment request) should EQK's share of expenses exceed the
applicable maximum threshold amounts.
If the terms of this sharing arrangement are acceptable, please indicate your
approval by signing in the space indicated below.
Very truly yours,
EQK REALTY INVESTORS I
By: /s/ WILLIAM G. BROWN, JR.
------------------------------------
William G. Brown, Jr.
Vice President and Controller
ACCEPTED AND AGREED this 20th
day of July, 1998.
AMERICAN REALTY TRUST, INC.
By: /s/ A. CAL ROSSI, JR.
--------------------------
Name: A. Cal Rossi, Jr.
------------------------
Title: VP
-----------------------
Date: 7/20/98
------------------------
<PAGE> 112
EXHIBIT F
Form of Standstill Agreement
[begins on next page]
<PAGE> 113
EXHIBIT F
STANDSTILL AGREEMENT
BY AND BETWEEN
AMERICAN REALTY TRUST, INC.
AND
[NAME OF EQK SHAREHOLDER]
DATED AS OF , 1998
----------- --
<PAGE> 114
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (this "AGREEMENT"), dated as of ___________
___, 1998, is by and between American Realty Trust, Inc., a Georgia Corporation
("ART"), and [Name of EQK Shareholder] (the "EQK SHAREHOLDER"), a
___________________________.
RECITALS:
WHEREAS, EQK Shareholder owns ____________ shares of beneficial
interest (the "EQK SHARES"), or _____% of the shares outstanding, in EQK Realty
Investors I, a Massachusetts business trust ("EQK") (collectively the "EQK
SHARES"); and
WHEREAS, EQK Shareholder has received a copy of the Prospectus /Proxy
Statement dated ___________, 1998 with respect to, among other things, the
merger of ART Newco, LLC, a Massachusetts limited liability company ("ART
NEWCO"), with and into EQK (the "MERGER") pursuant to an Amended and Restated
Agreement and Plan of Merger, dated as of August __, 1998 (the "MERGER
AGREEMENT") among ART, ART Newco and EQK; and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Merger Agreement that ART and EQK Shareholder shall have
entered into a Standstill Agreement in form and substance satisfactory to ART
with respect to the EQK Shares, and accordingly ART and EQK Shareholder desire
to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein set forth, the parties hereto, intending to be legally bound,
hereby agree as follows:
SECTION 1. Restrictions on Disposition.
(a) In consideration of the payment to EQK Shareholder of
$0.10 per each EQK Share (the "STANDSTILL PAYMENT"), EQK Shareholder
hereby covenants and agrees, for a period of 42 months after
[_______________ ___, 1998][THE DATE OF THE CONSUMMATION OF THE MERGER]
(the "STANDSTILL PERIOD"), not to (i) offer to sell, contract to sell
or otherwise sell, dispose of, loan, pledge or grant any rights with
respect to (collectively, a "DISPOSITION") any EQK Shares, any options
or warrants to purchase any EQK Shares or any securities convertible
into or exchangeable for EQK Shares, now owned or hereafter acquired
directly or indirectly by EQK Shareholder or with respect to which EQK
Shareholder has or hereafter acquires the power of disposition, or (ii)
acquire any additional EQK Shares.
(b) The foregoing restrictions are expressly agreed to
preclude the holder of the EQK Shares from engaging in any hedging or
other transaction which is designed to or reasonably expected to lead
to or result in a Disposition of EQK Shares during the Standstill
Period, even if such shares would be disposed of by a party other than
EQK Shareholder. Such
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<PAGE> 115
prohibited hedging or other transactions include, without limitation,
any short sale (whether or not against the box) or any purchase, sale
of grant of any right (including without limitation any put or call
option) with respect to any EQK Shares or with respect to any security
(other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from the EQK
Shares. Notwithstanding the foregoing, this Standstill Agreement does
not prohibit the sale of EQK Shares by EQK Shareholder to ART.
SECTION 2. Stop Transfer Instructions. EQK Shareholder hereby agrees
and consents to the entry of stop transfer instructions with EQK's transfer
agent against the transfer of the EQK Shares except in compliance with this
Standstill Agreement.
SECTION 3. Termination. This Standstill Agreement shall terminate and
be of no further force or effect if (i) the Merger is not consummated on or
before May 31, 1998, or (ii) ART files a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or is otherwise adjudicated bankrupt or insolvent by a court of
competent jurisdiction.
SECTION 4. Dividends and Distributions; Nature of Standstill Payment.
During the Standstill Period, all dividends and distributions in respect of EQK
Shares shall accrue for the benefit of, and be paid to, EQK Shareholder, and all
voting rights with respect to such EQK Shares shall remain with EQK Shareholder.
The Standstill Payment is separate from and independent of the consideration to
be paid with respect to the EQK Shares pursuant to the Merger Agreement.
SECTION 5. Successors and Assigns. No party shall have the right to
assign all or any part of its interest in this Agreement without the prior
written consent of the other parties, and any attempted transfer without such
consent shall be null and void.
SECTION 6. No Third-Party Benefit. Nothing in this Agreement shall be
deemed to create any right or obligation in any Person not a party hereto, and
this Agreement shall not be construed in any respect to be a contract or
agreement in whole or in part for the benefit of or binding upon any Person not
a party hereto.
SECTION 7. Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral and written agreements, memoranda,
understandings and undertakings between the parties hereto with respect to the
subject matter hereof. This Agreement may not be modified, amended, altered or
supplemented except by a written instrument executed and delivered by each of
the parties hereto.
SECTION 8. Notices. All notices, claims, certificates, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered as follows:
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<PAGE> 116
If to ART:
c/o Basic Capital Management, Inc.
10670 N. Central Expressway
Suite 600
Dallas, Texas 75231
Attention: Robert A. Waldman, Esq.
If to EQK Shareholder:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
Attention:
------------------
or to such other address as the person to whom notice is to be given
may have previously furnished to the other in writing in the manner set
forth above.
SECTION 10. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Texas,
without regard to its conflict of law rules.
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<PAGE> 117
SECTION 11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by parties hereto on the date first above written.
AMERICAN REALTY TRUST, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[NAME OF EQK SHAREHOLDER]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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<PAGE> 118
EXHIBIT G
Form of Purchase and Sale Agreement
[begins on next page]
<PAGE> 119
EXHIBIT G
Oak Tree Village
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made this _____
day of __________, 1998 (the "Effective Date"), between AMERICAN REALTY TRUST,
INC., a Georgia corporation, having an address at c/o Basic Capital Management,
Inc., 10670 North Central Expressway, Dallas, Texas 75231 ("Seller"), and EQK
REALTY INVESTORS I, a Massachusetts trust, having an address at 5775 Peachtree
Dunwoody Road, Suite 200D, Atlanta, Georgia 30342 ("Purchaser").
W I T N E S S E T H:
ARTICLE 1
AGREEMENT FOR ACQUISITION AND SALE; THE ASSETS
On the terms and provisions hereof and for the consideration herein set
forth, Seller agrees to transfer and convey to Purchaser, and Purchaser agrees
to accept, the following assets and properties (collectively referred to herein
as the "Assets"):
SECTION 1.1. Real Property. That certain parcel of land situated in
Lubbock County, in the City of Lubbock, State of Texas, as more particularly
described in Exhibit "A" attached hereto (the "Land"), together with all strips
and gores, rights of way, privileges and appurtenances pertaining thereto,
including any right, title and interest of Seller in and to any street adjoining
any portion of the Land (collectively, the "Real Property").
SECTION 1.2. Improvements. All those improvements and related
amenities, including all parking areas and all buildings, structures, and other
improvements, known as the "Oak Tree Village" (collectively, the "Improvements")
in and on the Real Property, and having an address of 3701 19th Street and 3702
20th Street, Lubbock, Lubbock County, Texas 79407.
SECTION 1.3. Tangible Personal Property. All those fixtures,
appliances, machinery, equipment, furniture, carpet, drapes and other tangible
personal property (excluding cash-on-hand), if any, owned by the Seller and
located on or about the Land and the Improvements and used solely in connection
with the ownership, operation or management of the Improvements (the "Tangible
Personal Property").
SECTION 1.4. Tenant Leases. All of the existing leases or occupancy and
concession agreements (herein, the "Tenant Leases") for space in the
Improvements, together with all rents,
<PAGE> 120
issues, profits and tenant security deposits held by the Seller on the Closing
Date (as hereinafter defined).
SECTION 1.5. Service Contracts. All (a) service contracts, management
contracts, supply contracts, security contracts, landscaping contracts, cable or
satellite television contracts, maintenance agreements, open purchase orders and
other contracts for the provision of labor, services, materials or supplies,
whether oral or written, to or for the benefit of the Land, Improvements or
Tangible Personal Property, together with all amendments thereto, (b) contracts
that affect the Land, Improvements or Tangible Personal Property or are
otherwise related to the construction, ownership, operation, occupancy or
maintenance of the Land, Improvements or Tangible Personal Property, and (c) all
current design contracts, construction contracts, subcontracts and purchase
orders, and other contracts of any nature relating to the Land, Improvements or
Tangible Personal Property (herein, the "Service Contracts").
SECTION 1.6. Intangible Property. All (a) licenses, permits,
certificates of occupancy, approvals, dedications, subdivision maps and
entitlements now or hereafter issued, approved or granted in connection with the
Land and Improvements together with any renewals or modifications thereof; (b)
names, trade names and logos used by the Seller exclusively in the operation and
identification of the Improvements, including the name "Oak Tree Village" and
any variations thereof; (c) warranties and guaranties relative to the
Improvements or Tangible Personal Property and (d) all other intangible rights,
titles, privileges, interests, including, without limitation, transferable
utility contracts, transferable telephone exchange numbers, plans and
specifications, engineering plans and studies, floor plans and landscape plans
pertaining to the Land or Improvements (herein, the "Intangible Property").
SECTION 1.7. Surveys. All of Seller's right, title and interest in and
to any and all site plans, surveys, soil and substrata studies, architectural
drawings, plans and specifications, engineering plans and studies, floor plans,
landscape plans and any other plans or studies of any kind (the "Plans and
Studies"), if any, in Seller's possession that relate to the Real Property.
SECTION 1.8. Easements and Awards. All right, title and interest of
Seller, if any, in and to any easements, rights-of-way, privileges, licenses or
other interests in, on, or to, any land, highway, street, road, or avenue, open
or proposed, in, on or across, in front of, abutting or adjoining, the Real
Property; and all right, title and interest of Seller, if any, in and to any
awards made, or to be made in lieu thereof, and in and to any unpaid awards for
damage thereto by reason of a change of grade of any such highway, street, road
or avenue (collectively, the "Easements and Awards").
ARTICLE 2
CONSIDERATION
SECTION 2.1. Consideration. The consideration (the "Consideration") to
be paid by the Purchaser to the Seller on the Closing Date (defined below) for
the Assets, shall be TWO MILLION
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<PAGE> 121
SEVEN HUNDRED EIGHTY THOUSAND FORTY-SIX AND NO/100 DOLLARS ($2,780,046.00), to
be payable as follows:
(a) Non-Recourse Note. The Purchaser shall deliver to Seller a
promissory note in the aggregate principal amount of $1,250,000 (the
"Non-Recourse Note") in favor of the Seller. The Non-Recourse note shall be a
non-recourse obligation of the Purchaser and shall bear interest only at a rate
of 12% per annum over a term of five years with the final payment of principal
being due and payable to Seller on December 15, 2003. The Non-Recourse Note
shall be in substantially the form attached hereto as Exhibit E. The
Non-Recourse Note shall be secured by a second lien mortgage on the Assets in
favor of the Seller.
(b) Assumption of Note. Purchaser shall assume the obligations
of Seller under that certain promissory note in the aggregate principal amount
of $1,530,046 (as of March 31, 1998) in favor of Midland Loan Services (the
"Midland Note"). Such assumption shall be made on a non-recourse basis pursuant
to the terms of an assumption agreement in substantially the form attached
hereto as Exhibit F. The principal amount of the Midland Note will not exceed
$1,530,046.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Seller's Representations and Warranties. Seller warrants
and represents to Purchaser that as of the Effective Date and on the Closing
Date:
(a) Existence. Seller is a corporation duly formed, validly
existing and in good standing in the State of Georgia, and is qualified to do
business and is in good standing in the State of Texas.
(b) Authority. Seller is qualified and has the full right,
power, and authority, without the joinder of any other person or entity, to
enter into, execute and deliver this Agreement, and to perform all duties and
obligations imposed on Seller under this Agreement, and neither the execution
nor the delivery of this Agreement, nor the consummation of the transfer
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement conflict with or will result in the breach of any
of the terms, conditions, or provisions of any agreement or instrument to which
Seller is a party or by which Seller is bound.
(c) Title. Seller has good and indefeasible title to the Real
Property, free and clear of all liens, deeds of trust, mortgages, pledges,
restrictions, claims and encumbrances whatsoever except for all matters
disclosed on the Title Commitment delivered to Purchaser by Seller in connection
herewith (the "Title Commitment").
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<PAGE> 122
(d) Ownership of Property. Seller is the owner of the Tangible
Personal Property and the Intangible Property and has good title to sell and
convey the same to Purchaser, free and clear of all liens, claims and
encumbrances whatsoever.
(e) Access. To the best of Seller's knowledge, the Real
Property has access to and from public highways, streets, roads, and to utility
service connections and there is no pending or threatened governmental
proceeding that would impair or result in the termination of such access.
(f) Assessed Value of Assets. To the best of Seller's
knowledge, the Assets, during the most recent tax fiscal year and the year prior
thereto, have been valued and assessed for ad valorem tax purposes and taxed in
accordance with all applicable statutes, laws, regulations, codes and
ordinances.
(g) Third Party Rights. The Assets are not subject to any
outstanding agreements of sale or any other rights of third parties to acquire
any interest therein except as described in this Agreement. None of the Tangible
Personal Property is held by Seller under a lease or installment sale contract.
(h) Operating Permits. To Seller's actual knowledge, (i)
Seller possesses all licenses, certificates, and permits, if any, that are
required to own, operate, use and maintain the Assets (collectively, the
"Operating Permits").
(i) Litigation and Proceedings. Seller is not a party to any
litigation, arbitration or administrative proceeding with any person or entity
concerning any aspect of the Assets or having or claiming any interest in the
Assets or which affects or questions Seller's title to the Assets or Seller's
ability to perform its obligations under this Agreement. Seller knows of no
presently pending or threatened litigation, arbitration or administrative
proceeding concerning any aspect of the Assets or which affects or questions
Seller's title to the Assets or Seller's ability to perform its obligations
under this Agreement. There are no attachments, executions, assignments for the
benefit of creditors, or voluntary or involuntary proceedings in bankruptcy
pending or contemplated by Seller, and to the knowledge of Seller, no such
actions have been threatened against it.
(j) Condemnation. There is no pending or, to Seller's actual
knowledge, without inquiry, threatened condemnation or similar proceedings
affecting the Real Property or any part thereof and, to Seller's knowledge, no
such proceeding or assessment is being contemplated by any governmental
authority.
(k) Conflicts with Laws. Neither the execution of this
Agreement nor the consummation by Seller of the transactions contemplated hereby
will (a) conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default, or result in a termination of, any
agreement or instrument to which Seller is a party, (b) to the best of Seller's
knowledge, violate any restriction to which Seller is subject, (c) to the best
of Seller's knowledge, constitute a violation of any applicable code,
resolution, law, statute, regulation, ordinance, judgment, rule,
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<PAGE> 123
decree or order of which Seller is aware, or (d) to the best of Seller's
knowledge, result in the creation of any lien, charge or encumbrance upon the
Assets or any part thereof.
(m) "Foreign Person". Seller is not a "foreign person" as
defined in ss. 1445 of the Internal Revenue Code of 1986, as amended, and the
Income Tax Regulations thereunder.
(n) Landfill, Hazardous Materials. To the best knowledge of
Seller (without any independent investigation), and except as otherwise
disclosed in any environmental reports delivered by the Purchaser, the Real
Property has not previously been used as a landfill or as a dump for garbage or
refuse, or as a site where hazardous waste, solid waste, Hazardous Materials (as
hereinafter defined) have been disposed of or released, and there are no such
Hazardous Materials present in, on, or under the Real Property. As used herein,
the term "Hazardous Materials" shall mean any substance which is or contains (i)
any "hazardous substance" as now or hereafter defined in Section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amend (42 U.S.C. Section 9601 et seq.) ("CERCLA") or any regulations
promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined
in the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.)
("RCRA") or regulations promulgated under RCRA; (iii) any substance regulated by
the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.); (iv)
gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and
asbestos containing materials, in any form, whether friable or non-friable; (vi)
polychlorinated biphenyls; (vii) radon gas; and (viii) any additional substances
or materials which are now or hereafter classified or considered to be hazardous
or toxic under any other environmental laws or the common law, or any other
applicable laws relating to the Real Property. Hazardous Materials shall
include, without limitation, any substance, the presence of which on the Real
Property, (A) requires reporting, investigation or remediation under
environmental laws; (B) causes or threatens to cause a nuisance on the Real
Property or adjacent property or poses or threatens to pose a hazard to the
health or safety of persons on the Real Property or adjacent property; or (C)
which, if it emanated or migrated from the Real Property, could constitute a
trespass. Seller has provided Purchaser with copies of all environmental
reports, if any, in its possession and will, upon Purchaser's request, permit
Purchaser to perform a Phase I environmental inspection of the Real Property
prior to the Closing Date.
(o) No Employees. There are no property level employees with
respect to the Real Property or the Improvements.
(p) Rent Roll. Attached hereto as Schedule II is a rent roll
with respect to the Real Property which identifies each Tenant Lease as of March
23, 1998.
(q) Tenant Leases. Each of the Tenant Leases identified on
Schedule II is in full force and effect and, to Seller's actual knowledge, there
exists no default thereunder.
(r) Brokerage Commissions. To Seller's actual knowledge, there
are no unpaid brokerage commissions with respect to the Tenant Leases.
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(s) Tenant Improvements. To Seller's actual knowledge, there
are no uncompleted tenant improvements or other unperformed or unpaid
obligations which are of the nature of tenant inducements with respect to the
Improvements.
(t) Midland Loan Documentation. A true and correct copy of the
documentation for the loan evidenced by the Midland Note (the "Midland Loan
Documentation") is attached hereto as Exhibit G. To Seller's actual knowledge,
there exists no default under the Midland Loan Documentation.
SECTION 3.2. Purchaser's Representations and Warranties. Purchaser
warrants and represents to Seller that as of the Effective Date and on the
Closing Date:
(a) Existence. Purchaser is a trust duly formed, validly
existing and in good standing in the State of Massachusetts.
(b) Authority. Purchaser is qualified and has the full right,
power, and authority, without the joinder of any other person or entity, to
enter into, execute and deliver this Agreement, and to perform all duties and
obligations imposed on Purchaser under this Agreement, and neither the execution
nor the delivery of this Agreement, nor the consummation of the transfer
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement conflict with or will result in the breach of any
of the terms, conditions, or provisions of any agreement or instrument to which
Purchaser is a party or by which Seller is bound.
SECTION 3.3. Survival. All representations and warranties by Seller and
Purchaser stated in Section 3.1 and 3.2 of this Agreement shall survive the
Closing for a period of six (6) months and shall not merge in any conveyance
documents delivered at Closing.
SECTION 3.4. Subsequent Disclosure. In the event that changes occur as
to any information, documents or exhibits referred to in this Agreement
delivered by either party to this Agreement of which such party has knowledge,
such party will promptly disclose same to the other party when first available
to such party.
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ARTICLE 4
CLOSING
SECTION 4.1. Closing. The Closing of the transactions contemplated
hereby (the "Closing") shall, subject to the satisfaction or waiver of the
Seller Obligations set forth in Section 6.3 or the Purchaser Obligations set
forth in Section 6.4, take place within ten (10) Business Days after the later
of (i) the 1998 annual meeting of the Purchaser's shareholders, or (ii) the
consummation by the Purchaser of the sale of the Harrisburg East Mall (the
"Mall"), at the offices of Andrews & Kurth L.L.P., 1717 Elm Street, Suite 3700,
Dallas, Texas 75201 or at such other date, time and place as the Seller and
Purchaser may mutually agree. The date on which the Closing actually occurs is
referred to herein as the "Closing Date". As used herein, the term "Business
Day" shall mean any day other than a Saturday, a Sunday or any day on which
banks in the State of Texas are permitted or required by law to be closed.
SECTION 4.2. Closing Costs. All closing costs, including all title
examinations fees and all premiums for the Title Policy (including the cost to
modify the survey exception to read "shortages in area" only), the cost of
issuing tax certificates, all charges for UCC searches and abstract of judgment
searches, all recording fees, all transfer taxes (whether state or local), any
escrow fees and other customary charges of the issuer of the Title Policy (the
"Title Company"), all placement fees, all reasonable attorneys' fees of both
Seller and Purchaser, and all costs and expenses in connection with the
preparation of the Plans and Studies (collectively, the "Closing Costs") shall
be paid by Seller.
SECTION 4.3. Seller Obligations. At the Closing, Seller shall deliver
the following to Purchaser, at Seller's sole cost and expense (except as
specifically agreed to by the parties herein):
(a) Deed. A duly executed and acknowledged Special Warranty
Deed in recordable form, conveying to Purchaser good and indefeasible fee simple
title to the Real Property, Improvements thereon, and the Easements and Awards
to Purchaser, free and clear of all liens, claims, encumbrances, easements,
reservations and restrictions, subject only to the encumbrances noted and not
otherwise objected to by Purchaser in the Title Commitment (the "Permitted
Encumbrances"), in form and substance as attached hereto as Exhibit "B".
(b) Bill of Sale. The duly executed Blanket Bill of Sale and
Assignment ("Bill of Sale") assigning all of Seller's right, title and interest
in and to the Tangible Personal Property subject to the Permitted Encumbrances,
and Seller's rights in and to, among other things, the Operating Permits, in the
form of Exhibit "C" attached hereto.
(c) Operating Permits. The originals of the Operating Permits.
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(d) Title Policy. An Owner's Policy of Title Insurance ("Title
Policy") covering the Real Property and Improvements, in accordance with the
Title Commitment subject only to the Permitted Encumbrances.
(e) Plans and Studies. The Plans and Studies.
(f) UCC Searches. A report of searches made of the county and
state Uniform Commercial Code records of the Secretary of State of the state and
of the County in which the Real Property is located and in which the Seller has
its principal of business, dated within fifteen (15) days prior to Closing,
showing no filings against, or with respect to, the Real Property, or any
portion thereof.
(g) Keys. Keys to the Improvements, if any.
(h) Certificate of Authority. A duly executed certificate of
resolutions and authority in form reasonably satisfactory to Purchaser,
authorizing the execution and delivery of all documents required hereunder to be
executed by Seller and the consummation of the transactions contemplated
hereunder, and such other evidence of the authority of Seller to consummate the
Closing as the Purchaser or the Title Company may reasonably require.
(i) Governmental Certificates. Evidence of the existence and
good standing of the Seller in the State of Georgia certified by the Secretary
of State of the State of Georgia, a certificate of authority of the Seller in
the State of Texas certified by the Secretary of State of Texas, and a
certification of account status issued by the Comptroller of Public Accounts of
the State of Texas.
(j) Non-Foreign Person Affidavit. A non-foreign affidavit,
properly executed and in recordable form as attached hereto as Exhibit "D".
(k) Possession. Seller shall deliver possession of the Assets
to the Purchaser subject only to the Permitted Encumbrances.
(l) Closing Costs. The Closing Costs to be paid pursuant to
Section 6.2 above.
(m) Midland Estoppel Letter. Seller shall deliver to Purchaser
an estoppel letter (the "Midland Estoppel Letter") from Midland Loan Services
which identifies the Midland Loan Documentation and confirms (i) that the
Midland Loan Documentation has not been amended, (ii) that there are no defaults
under the Midland Loan Documentation, (iii) the amount of principal outstanding
under the Midland Note, (iv) the date through which interest has been paid on
the Midland Note, (v) that there are no other amounts outstanding under the
Midland Note, and (vi) Midland's consent to the Assumption Agreement and the
Non-Recourse Note.
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(n) Other Documents. Such additional documents, instruments,
assumptions, consents, waivers and releases as may be reasonably necessary to
effectuate the transactions contemplated herein or to evidence the capacity and
authority of Purchaser to consummate the transactions contemplated herein.
SECTION 4.4. Purchaser's Obligations. At the Closing, Purchaser shall
deliver the following to Seller at Purchaser's sole cost and expense:
(a) Assumption Agreement. The Assumption Agreement duly
executed by the Purchaser.
(b) Non-Recourse Note. The Non-Recourse Note duly executed by
the Purchaser.
(c) Certificate of Authority. A duly executed Certificate of
Corporate Resolutions, authorizing the execution and delivery of all documents
required hereunder to be executed by Purchaser and the consummation of the
transactions contemplated hereunder, and such other evidence of Authority of
Purchaser to consummate the Closing as Seller or the Title Company may
reasonably require.
(d) Bill of Sale. A duly executed counterpart of the Bill of
Sale.
(e) Governmental Certificates. Evidence of the existence and
good standing of Purchaser in the State of Massachusetts certified by the
Secretary of State of the State of Massachusetts.
(f) Management Agreement. A property management agreement with
respect to the Improvements in substantially the form attached hereto as Exhibit
"H" (the "Management Agreement") duly executed by the Purchaser.
(g) Other Documents. Such additional documents, instruments,
assumptions, consents, waivers and releases as may be reasonably necessary to
effectuate the transactions contemplated herein or to evidence the capacity and
authority of Purchaser to consummate the transactions contemplated herein.
ARTICLE 5
CASUALTY OR CONDEMNATION
SECTION 5.1. If, prior to the Closing Date, all or any portion of the
Real Property is taken by, or made subject to, condemnation, eminent domain or
other governmental acquisition proceedings, then Purchaser, at its sole option,
may elect either:
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(a) to terminate this Agreement by written notice to Seller
given at or prior to the Closing and, upon Seller's receipt thereof, neither
party hereto shall have any further rights against or obligations to the other
under this Agreement; or
(b) to agree to close and deduct from the total amount of
consideration to be paid pursuant to Section 2.1 an amount equal to any sum paid
to Seller for such governmental acquisition in which event Seller shall assign,
transfer and set over to Purchaser all of Seller's right, title and interest in
and to any awards which may in the future be made on account of such
governmental acquisition.
SECTION 5.2. If, prior to the Closing Date, all or any portion of the
Improvements should be damaged or destroyed by fire or other casualty such that
the cost to repair same exceeds $10,000.00, then Purchaser, at its sole option,
may elect either:
(a) to terminate this Agreement by written notice to Seller
given at or prior to the Closing and, upon Seller's receipt thereof, neither
party hereto shall have any further rights against or obligations to the other
under this Agreement; or
(b) to agree to close this Contract without reduction in the
total consideration to be paid pursuant to Section 2.1 and require Seller to
assign to Purchaser at Closing all insurance proceeds payable for such damage
and pay to Purchaser the amount of any deductible under the insurance policies
insuring the Improvements.
If the cost to repair the damage does not exceed $10,000.00,
Purchaser's option shall be limited to (b) above. Seller shall maintain in
effect until the time of closing its existing policies of fire and extended
coverage insurance.
ARTICLE 6
REMEDIES
SECTION 6.1. Remedies.
(a) Breach by Purchaser. In the event that Purchaser shall
default in any of its obligations hereunder to be performed prior to Closing,
for any reason other than Seller's default or a termination of this Agreement by
Purchaser or Seller pursuant to a right to do so under the provisions hereof,
Seller shall have the right to (i) terminate this Agreement and (ii) receive
liquidated damages in the amount of $100. Upon such termination and payment to
Seller of such liquidated damages, this Agreement shall become null and void and
the parties hereto shall have no further obligations hereunder. Except as
provided in the second preceding sentence, Purchaser shall not be liable to
Seller for any other damages, including any punitive, speculative or
consequential damages, or to the remedy of specific performance.
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(b) Breach by Seller. In the event that Seller shall default
in any of its obligations hereunder to be performed prior to Closing, for any
reason other than Purchaser's default or a termination of this Agreement by
Purchaser or Seller pursuant to a right to do so under the provisions hereof,
Purchaser shall, with respect to any default first discovered by Purchaser
prior to Closing, either (i) terminate this Agreement and in such event this
Agreement shall be null and void and the parties shall have no further
obligation or liability hereunder, or (ii) seek specific performance of this
Agreement, including, without limitation, to enforce Seller's (or its
affiliates') obligations under Sections 8.1 and 8.2 of this Agreement. In no
event shall Seller be liable to Purchaser for any punitive, speculative or
consequential damages by reason of a default discovered by Purchaser prior to
Closing or otherwise; provided that nothing in this Section 6.1(b) shall be
construed to limit Purchaser's right to indemnification from Seller under
Section 10.2.
ARTICLE 7
PRORATIONS AND ADJUSTMENTS
SECTION 7.1. At the Closing, the following items of revenue and expense
shall be adjusted and apportioned in cash as of 12:01 A.M. on the Closing Date
(the "Adjustment Date"):
(a) Real estate and other ad valorem taxes, personal property,
use taxes and sewer charges, on the basis of the fiscal year for which such
taxes or charges are assessed. If, however, after the Closing Date, by reason of
any change in assessment or change in rate or any other reason, the ad valorem
or other taxes or charges for the fiscal year covered by such apportionment
should be determined to vary from those apportioned on the Closing Date, the
amount of any refund received by, or payment due from, the Purchaser shall be
apportioned between the Seller and the Purchaser as of the Adjustment Date. If
the actual ad valorem taxes are not available on the Closing Date for the tax
year in which the Adjustment Date occurs, the proration of such taxes or other
charges shall be estimated at the Closing based upon reasonable information
available to the parties, including information disclosed by the local tax
office or other public information, and an adjustment shall be made when actual
figures are published or otherwise become available.
(b) Fees paid or payable by Seller for transferable Licenses
and Permits shall be prorated at the Closing with Seller being responsible for
all such fees through and including the date preceding the Closing Date.
(c) Accrued and unpaid interest on the Midland Note payable
through the month in which Closing occurs shall be prorated at the Closing with
Seller being responsible for all such interest through and including the date
preceding the Closing Date.
(d) All other income (actually received on a cash basis) and
public utility charges and amounts under contracts expressly being assumed by
the Purchaser hereunder shall be prorated at the Closing effective as of the
Closing Date. In this regard, all such expenses for the Closing Date shall be
borne by Purchaser.
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(d) Notwithstanding anything herein to the contrary, to the
extent that the net prorations pursuant to the Section 7.1 (the "Net
Prorations") are payable in favor of the Seller, the aggregate principal amount
of the Non-Recourse Note shall be increased by the amount of such Net
Prorations. Likewise, to the extent that the Net Prorations are payable in favor
of the Purchaser, the aggregate principal amount of the Non-Recourse Note shall
be decreased by the amount of such Net Prorations.
SECTION 7.2. All items to be adjusted, in accordance with the foregoing
Section 7.1, for which figures are not available at Closing, will be adjusted
and payment therefor will be made by Seller to Purchaser or by Purchaser to
Seller, as appropriate, as soon as figures are available after Closing.
Purchaser or Seller, as appropriate, will deliver simultaneously with such
payment, any and all data, information or other backup it may have with respect
to such payment and/or such proration so as to fully indicate to the other party
the calculation of the amount of payment contained therewith.
SECTION 7.3. The provisions of this Article 7 shall survive the
Closing.
ARTICLE 8
OPERATIONS PENDING CLOSING; DEVELOPMENT PERIOD
SECTION 8.1. From the Effective Date through the Closing Date Seller
agrees to operate the Real Property as follows:
(a) Seller will keep the Real Property in as good a condition
as exists on the Effective Date.
(b) Seller will not enter into any employment, maintenance,
service, supply or other agreement relating to the Real Property without the
express written consent of Purchaser, unless such agreement may be terminated on
thirty (30) days written notice.
(c) Seller shall not enter into any leases or occupancy
agreements with respect to the Real Property without the express written consent
of Purchaser.
(d) Purchaser or representatives of Purchaser shall have
access to the Assets during normal business hours if Purchaser notifies Seller
in advance of the time Purchaser desires access to the Assets. The Seller shall
make all books and records relating to the ownership of the Assets available to
the Purchaser and its accountants, at Purchaser's request, during normal
business hours and without interfering with the operations of the Assets, and
shall permit the Purchaser's accountants and attorneys to examine and audit the
same, at the Purchaser's sole cost and expense.
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(e) Seller shall not enter into or record any easement,
covenant, license, permit, agreement or other instrument against the Real
Property, or any portion thereof.
(f) Prior to the Closing, Seller shall take such actions as
may be required to enable it to convey the Operating Permits to Purchaser on the
Closing Date. Seller shall pay all fees and expenses in regard to such
assignments or transfers, including any customary transfer charges necessary to
obtain the consent of any party which may be required in connection with such
assignments or transfers. Seller shall cooperate and promptly execute all
applications and instruments required by governmental entities in connection
with the transfer to Purchaser of any of the Operating Permits. Purchaser agrees
to submit all applications, documentation and information reasonably required to
assist Seller in obtaining such consents and transfers.
(g) Immediately upon receipt, Seller shall send Purchaser a
copy of any notice with respect to the Assets which Seller may receive from any
governmental authority or agency having jurisdiction over the Assets.
(h) Seller will advise Purchaser in writing promptly of any
litigation, arbitration or administrative hearing concerning or affecting the
Assets of which Seller has knowledge or notice.
(i) Seller will immediately notify Purchaser of any
condemnation or threatened condemnation of the Real Property or any portion
thereof.
(j) Seller will not, without the prior written consent of
Purchaser, create, place or permit to be created or placed, or through any act
or failure to act, acquiesce in the placing of, or allow to remain, any deed of
trust, mortgage, voluntary or involuntary lien, whether statutory,
constitutional or contractual, security interest, encumbrance or charge, or
conditional sale or other title retention document, other than the Permitted
Encumbrances, and should any of the foregoing become attached hereafter in any
manner to any part of the Assets without the prior written consent of Purchaser,
Seller will cause the same to be promptly discharged and released.
(k) Seller covenants and agrees to timely pay all accrued,
outstanding, due or unpaid expenses or charges attributable to or incurred or
accrued with respect to the Assets existing as of Closing.
SECTION 8.2. Management. An affiliate of Seller approved by Purchaser
(the "Manager") will provide property management services for the Real Property
pursuant to the terms of the Management Agreement. As compensation for its
services, the Manager shall be entitled to receive property management fees as
specified in the Management Agreement. The Manager will provide services
commensurate with those then being provided by property managers of other
comparable retail shopping centers in the market in which the Real Property is
located. In addition, the Manager will be subject to removal as set forth in the
Management Agreement if the Manager's performance fails to satisfy standards set
forth in the Management Agreement.
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ARTICLE 9
CONDITIONS TO OBLIGATIONS
SECTION 9.1. Purchaser's obligation to consummate the acquisition of
the Assets pursuant to the terms of this Agreement are subject to and
conditioned upon the following:
(a) Each of the representations and warranties made by Seller
herein shall be true and complete in all respects on the Closing Date as if made
on and as of such date.
(b) Seller shall have performed and complied with all
covenants and agreements which it is required to perform or comply with on or
before the Closing Date pursuant to the provisions of this Agreement.
(c) No suit, action, or other proceeding shall be pending or
threatened before any court or governmental agency by which any third party is
seeking to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
(d) Purchaser shall have obtained the approval of the
Purchaser's Board of Directors of all of the terms and conditions of this
Agreement ("Board Approval").
(e) Midland and Purchaser shall have duly executed the
Assumption Agreement.
(f) Seller shall have delivered to Purchaser the Midland
Estoppel Letter duly executed by Midland.
(g) Purchaser shall have been satisfied with the results of
any Phase I environmental inspection performed in respect of the Real Property.
SECTION 9.2. Seller's obligation to consummate the acquisition of the
Assets pursuant to the terms of this Agreement are subject to and conditioned
upon the following:
(a) Each of the representations and warranties made by
Purchaser herein shall be true and complete in all respects on the Closing Date
as if made on and as of such date.
(b) Purchaser shall have performed and complied with all
covenants and agreements which it is required to perform or comply with on or
before the Closing Date pursuant to the provisions of this Agreement.
(c) No suit, action, or other proceeding shall be pending or
threatened before any court or governmental agency by which any third party is
seeking to restrain or prohibit or to
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obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby.
(d) Purchaser shall have duly executed the Management
Agreement.
(e) Midland and Purchaser shall have duly executed the
Assumption Agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Notices. All notices, demands and requests which may be
given or which are required to be given by either party to the other, and any
exercise of a right of termination provided by this Agreement, shall be in
writing and shall be deemed effective when either: (i) personally delivered to
the intended recipient; (ii) sent, by certified or registered mail, return
receipt requested, addressed to the intended recipient at the address specified
below; (iii) delivered in person to the address set forth below for the party to
whom the notice was given; or (iv) deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express Corporation,
Emery, or Purolator, addressed to such party at the address specified below. For
purposes of this Section 12.1, the addresses of the parties for all notices are
as follows (unless changed by similar notice in writing given by the particular
person whose address is to be changed):
If to Seller: American Realty Trust, Inc.
c/o Basic Capital Management, Inc.
10670 North Central Expressway
Suite 600
Dallas, Texas 75231
Attention: Cooper Stuart
With a copy to: Andrews & Kurth L.L.P.
3701 Bank One Center
1601 Elm Street
Dallas, Texas 75201
Attention: Thomas R. Popplewell, Esq.
If to Purchaser: EQK Realty Investors I
5775 Peachtree Dunwoody Road
Suite 200-D
Atlanta, GA 30342
Attention: William G Brown, Jr.
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with a copy to: Wolf, Block Schorr & Solis Cohen
Twelfth Floor, Packard Building
Philadelphia, PA 19102
Attention: Jason M. Shargel, Esq.
SECTION 10.2. Indemnification by Seller. Seller agrees to indemnify and
hold harmless the Purchaser and its officers, directors, trustees, employees and
controlling persons from and against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that the Purchaser may sustain from (i) the breach of
any of the covenants or obligations of the Seller hereunder, or (ii) any claims
by the Seller or third parties (and liabilities of Purchaser in favor of Seller
or third parties) related to this transaction, the Property, or Seller's or
Purchaser's activities in connection with the Property, whether (A) accruing
prior to or subsequent to Closing hereunder, (B) due to the negligence, gross
negligence, or intentional misconduct of Purchaser, (C) sounding in tort,
contract or otherwise, (D) arising from any contract executed or assumed by
Purchaser, including the Assumption Agreement, (E) arising from the NonRecourse
Note (or the documents securing the same) or the Midland Note (or the documents
securing the same), (F) arising from any other documents executed by the
Purchaser at Closing hereunder, (G) arising from any violation of applicable law
or any other reason whatsoever which, in the aggregate, exceed the then current
fair market value of the Assets. This Section 10.2 shall survive Closing without
limitation.
SECTION 10.3. Entire Agreement. This Agreement embodies the entire
agreement between the parties relative to the subject matter hereof, and there
are no oral or written agreements between the parties, nor any representations
made by either party relative to the subject matter hereof, which are not
expressly set forth herein.
SECTION 10.4. Amendment. This Agreement may be amended only by a
written instrument executed by the party or parties to be bound thereby.
SECTION 10.5. Headings. The captions and headings used in this
Agreement are for convenience only and do not in any way limit, amplify, or
otherwise modify the provisions of this Agreement.
SECTION 10.6. Time of Essence. Time is of the essence of this
Agreement; however, if the final date of any period which is set out in any
provision of this Agreement falls on a Saturday, Sunday or legal holiday under
the laws of the United States or the State of Texas, then, in such event, the
time of such period shall be extended to the next day which is not a Saturday,
Sunday or legal holiday.
SECTION 10.7. Applicable Law; Venue. This Agreement is made and entered
into in the City of Dallas, State of Texas, and its interpretation, validity and
performance shall be governed by the laws of the State of Texas. The parties
hereto mutually consent to the jurisdiction of any local, state or federal court
situated in Dallas, Texas, and waive any objection which they may have
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<PAGE> 135
pertaining to improper venue or forum non conviens to the conduct of any
proceeding in any such court. The parties hereto agree that venue for any action
in connection herewith, shall be in Dallas, Texas.
SECTION 10.8. Successors and Assigns; Assignment. This Agreement shall
bind and inure to the benefit of Seller and Purchaser and their respective
heirs, executors, administrators, personal and legal representatives, successors
and assigns.
SECTION 10.9. Invalid Provision. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
SECTION 10.10. Attorneys' Fees. In the event it becomes necessary for
either party hereto to file suit to enforce this Agreement or any provision
contained herein, the party prevailing in such suit shall be entitled to
recover, in addition to all other remedies or damages, as provided herein,
reasonable attorneys' fees incurred in such suit.
SECTION 10.11. Multiple Counterparts. This Agreement may be executed in
a number of identical counterparts which, taken together, shall constitute
collectively one (1) agreement; but in making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart.
SECTION 10.12. Schedules and Exhibits. The following schedules and
exhibits are attached to this Agreement and are incorporated into this Agreement
and made a part hereof:
(a) Schedule I - Rent Rolls;
(b) Exhibit A - the Real Property;
(c) Exhibit B - the Special Warranty Deed;
(d) Exhibit C - the Blanket Bill of Sale and Assignment;
(e) Exhibit D - the Non-Foreign Person Affidavit; and
(f) Exhibit E - form of Non-Recourse Note
(g) Exhibit F - form of Management Agreement
(h) Exhibit G - Copy of Midland Loan Documentation
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<PAGE> 136
IN WITNESS WHEREOF the parties hereto have executed this Agreement
effective as of the date set forth above.
SELLER:
------
AMERICAN REALTY TRUST, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PURCHASER:
---------
EQK REALTY INVESTORS I
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT]
<PAGE> 137
SCHEDULE I
Rent Roll
---------
[begins on next page]
SCHEDULE I - RENT ROLL
<PAGE> 138
EXHIBIT "A"
----------
DESCRIPTION OF REAL PROPERTY
----------------------------
Lots 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, and a portion of Lot 5
(described by metes and bonds), Block 1, Murphy Place Addition to the City of
Lubbock, Lubbock County, Texas. A copy of the metes and bounds description for
the portion of Lot 5 is included in the Addendum hereto.
EXHIBIT A - DESCRIPTION OF REAL PROPERTY - Page 1
<PAGE> 139
EXHIBIT "B"
----------
FORM OF SPECIAL WARRANTY DEED
-----------------------------
STATE OF TEXAS )
)
COUNTY OF __________ )
__________________________________, a __________________ ("Grantor"),
for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other
valuable consideration, the receipt and sufficiency of which consideration are
hereby acknowledged, has Granted, Sold, and Conveyed, and by these presents does
Grant, Sell, and Convey, unto______________________, a ___________________
("Grantee"), having an address of 5775 Peachtree Dunwoody Road, Suite 200-D,
Atlanta, GA 30342, that certain real property described in Exhibit A attached
hereto and made a part hereof (the "Property"), together with (i) any and all
appurtenances, privileges and hereditaments belonging or appertaining to the
Property; (ii) any and all improvements or fixtures located on the Property;
(iii) any and all appurtenant easements or rights-of-way benefiting the Property
and any and all of the rights to Grantor to use the easements and rights-of-way;
(iv) any and all rights of ingress and egress; (v) any and all mineral rights
and interests of Grantor in, on or under the Property (present or reversionary);
and (vi) all right, title and interest of Grantor (if any) in, to and under
adjoining streets, rights of way and easements (all of the above being
hereinafter referred to collectively as the "Real Estate"), SUBJECT TO the
matters identified on Exhibit B attached hereto and incorporated herein by this
reference (the "Permitted Exceptions").
TO HAVE AND TO HOLD the Real Estate, together with all and singular the
rights and appurtenances belonging in any way to the Real Estate, unto the said
Grantee, its successors and assigns forever, and Grantor binds itself and its
successors and assigns to warrant and forever defend all and singular the Real
Estate to Grantee, its successors and assigns against every person lawfully
claiming or to claim all or any part of the Real Estate, by, through, or under
Grantor, but not otherwise.
EXHIBIT B - FORM OF SPECIAL WARRANTY DEED - PAGE 1
<PAGE> 140
IN WITNESS WHEREOF, Grantor has executed this Deed effective as of the
_____ day of _________________________, 1998.
GRANTOR: _____________________________________,
a_____________________
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
STATE OF TEXAS )
)
COUNTY OF ________ )
This instrument was acknowledged before me this _____ day of
____________, 1998, by ________________, the _________________ of
________________________________, a ______________________, on behalf of said
________________________.
(SEAL)
-------------------------------------------
Notary Public in and for the State of TEXAS
-------------------------------------------
Print name of notary
-------------------------------------------
My Commission Expires:
EXHIBIT B - FORM OF SPECIAL WARRANTY DEED - PAGE 2
<PAGE> 141
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
----------------------------
Lots 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, and a portion of Lot 5
(described by metes and bonds), Block 1, Murphy Place Addition to the City of
Lubbock, Lubbock County, Texas. A copy of the metes and bounds description for
the portion of Lot 5 is included in the Addendum hereto.
EXHIBIT B - FORM OF SPECIAL WARRANTY DEED - PAGE 3
<PAGE> 142
EXHIBIT B
PERMITTED ENCUMBRANCES
----------------------
[to be attached]
EXHIBIT B - FORM OF SPECIAL WARRANTY DEED - PAGE 4
<PAGE> 143
EXHIBIT "C"
FORM OF BLANKET BILL OF SALE AND ASSIGNMENT
-------------------------------------------
The undersigned, ___________________________, a ______________________
("Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration in hand paid by
___________________________________________, a __________________ ("Assignee"),
pursuant to and in accordance with the terms and provisions of that certain
Purchase and Sale Agreement (the "Agreement") dated effective as of
________________________, 1998, between Assignor and Assignee, the receipt and
sufficiency of which are hereby acknowledged by Assignor, ASSIGNS, TRANSFERS,
SETS OVER AND DELIVERS to Assignee, its successors and assigns, all of the
following (collectively, the "Property"):
(i) All of Assignor's right, title and interest in and to any
personal property located on any portion of the Real Property
(as defined in the Agreement), including, without limitation,
the personal property more particularly described on Exhibit
"A" attached hereto (collectively, the "Personal Property");
(ii) All site plans, surveys, soil and substrata studies,
architectural drawings, plans and specifications, engineering
plans and studies, landscape plans and any other plans or
studies of any kind, if any, in Assignor's possession that
relate to the Real Property and the Improvements located
thereon;
(iii) All licenses, permits, trademarks, trade names and logos
(including, without limitation, the name "Oak Tree Village")
owned by Assignor or to which Assignor claims any right or
interest or to which Assignor has rights pursuant to any
license, as used by Assignor in connection with the Real
Property; and
(iv) To the extent assignable without the consent of third parties,
all intangible property, if any, owned by Seller and
pertaining to the Real Property, the Improvements, or the
Personal Property, including without limitation, transferable
utility contracts.
TO HAVE AND TO HOLD the Property, together with all and singular any
other rights and appurtenances thereto in anywise belonging unto Assignee, its
successors and assigns forever.
The assignment hereunder is made and accepted expressly subject to the
Permitted Exceptions contained in the Special Warranty Deed of even date
herewith, executed by Assignor, conveying the Real Property and all Improvements
thereon to Assignee, but only to the extent such Permitted Exceptions affect the
Property.
EXHIBIT C - FORM OF BILL OF SALE AND ASSIGNMENT- Page 1
<PAGE> 144
Except as aforesaid, this Agreement shall bind and inure to the benefit
of the parties and their respective successors, legal representatives and
assigns.
Neither this Agreement nor any term, provision, or condition hereof may
be changed, amended or modified, and no obligation, duty or liability or any
party hereby may be released, discharged or waived, except in a writing signed
by all parties hereto.
[Signature Pages Follow]
EXHIBIT C - FORM OF BILL OF SALE AND ASSIGNMENT- Page 2
<PAGE> 145
IN WITNESS WHEREOF, Assignor has caused this Blanket Bill of Sale and
Assignment to be executed the _________ day of _______________, 1998.
ASSIGNOR:
---------
__________________________________________,
a _____________________________
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ASSIGNEE:
---------
-------------------------------------------
By:
----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Exhibit "A" - Personal Property
EXHIBIT C - FORM OF BILL OF SALE AND ASSIGNMENT- Page 3
<PAGE> 146
EXHIBIT A
DESCRIPTION OF PERSONAL PROPERTY
--------------------------------
[to be provided]
EXHIBIT C - FORM OF BILL OF SALE AND ASSIGNMENT- Page 4
<PAGE> 147
EXHIBIT "D"
NONFOREIGN PERSON AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended, provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. To inform EQK Realty Investors I, a
Massachusetts trust ("Purchaser") that withholding of a tax is not required upon
the disposition of that certain real property located in Lubbock, Lubbock
County, in the State of Texas, as described on EXHIBIT "A" attached hereto, from
American Realty Trust, Inc., a Georgia corporation ("Seller"), the undersigned,
being first duly sworn, hereby certifies the following on behalf of the Seller:
1. The Seller is not a foreign corporation, foreign partnership or
foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. The Seller's U.S. employer identification number is _______________.
3. The Seller's office address is:
American Realty Trust, Inc.
c/o Basic Capital Management, Inc.
10670 North Central Expressway
Suite 600
Dallas, Texas 75231
The undersigned understands that this certification may be disclosed to
the Internal Revenue Service by Purchaser and that any false statement contained
herein could be punishable by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certification and, to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of the Seller.
DATED: _______________, 1998
AMERICAN REALTY TRUST, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT D - NONFOREIGN PERSON AFFIDAVIT - Page 1
<PAGE> 148
EXHIBIT D - NONFOREIGN PERSON AFFIDAVIT - Page 2
<PAGE> 149
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, and a portion of Lot 5
(described by metes and bonds), Block 1, Murphy Place Addition to the City of
Lubbock, Lubbock County, Texas. A copy of the metes and bounds description for
the portion of Lot 5 is included in the Addendum hereto.
EXHIBIT D - NONFOREIGN PERSON AFFIDAVIT - Page 3
<PAGE> 150
EXHIBIT "E"
FORM OF
NON-RECOURSE PROMISSORY NOTE
$1,250,000.00 ________, 1998
FOR VALUE RECEIVED, the undersigned, EQK REALTY INVESTORS I, a
Massachusetts trust, ("Maker"), promises to pay to the order of AMERICAN REALTY
TRUST, INC., a Georgia corporation, or its assigns ("Payee"), at its address at
10670 North Central Expressway, Dallas, Texas 75231, the principal sum of ONE
MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($1,250,000.00), together
with interest on said principal equal to twelve percent (12%) per annum.
This Note shall be due and payable as follows:
Interest only shall be due and payable monthly as it accrues, on
the first day of each and every calendar month, beginning ______,
1998 and continuing regularly thereafter until the expiration of
sixty (60) months from the date hereof, when the entire principal
balance and all accrued and unpaid interest shall be due and
payable in full.
Interest charges will be calculated on amounts advanced hereunder on
the actual number of days said amounts are outstanding on the basis of a 360 day
year. It is the intention of Maker and Payee to conform strictly to all
applicable usury laws. It is therefore agreed that (i) in the event that the
maturity hereof is accelerated by reason of an election by Payee, all unearned
interest shall be canceled automatically or, if theretofore paid, shall either
be refunded to Maker or credited on the unpaid principal amount of this Note,
whichever remedy is chosen by Payee, (ii) the aggregate of all interest and
other charges constituting interest under applicable law and contracted for,
chargeable or receivable under this Note or otherwise in connection with the
transaction for which this Note is given shall never exceed the maximum amount
of interest, nor produce a rate in excess of the maximum rate of interest that
Payee may charge Maker under applicable law and in regard to which Maker may not
successfully assert the claim or defense of usury, and (iii) if any excess
interest is provided for, it shall be deemed a mistake and the same shall either
be refunded to Maker or credited on the unpaid principal amount hereof and this
Note shall be automatically deemed reformed so as to permit only the collection
of the maximum legal non-usurious rate and amount of interest. All sums paid or
agreed to be paid to the holder of this Note for the use, forbearance or
detention of the
EXHIBIT E - FORM OF NON-RECOURSE PROMISSORY NOTE - Page 1
<PAGE> 151
indebtedness evidenced hereby to the full extent allowed by applicable law,
shall be amortized, prorated, allocated and spread through the full term of this
Note.
In the event of default in the payment of any installment of principal
or interest when due hereunder, or upon the occurrence of any event of default
under any document or instrument executed in connection with or as security for
this Note, or upon failure in performance of any covenant, agreement, or
obligation to be performed under any documents executed in connection with or as
security for this Note, in each event after notice has been delivered to the
Maker and Maker has failed to cure such default within ten (10) business days
from the date such notice was so delivered to Maker, Payee may declare the
entirety of this Note, principal and interest, immediately due and payable
without any further notice, and failure to exercise said option shall not
constitute a waiver on the part of Payee of the right to exercise the same at
any other time.
Maker consents to the release or discharge of any party liable hereon
and to the release or impairment of any collateral for this Note by Payee.
All past due principal and interest on this Note shall bear interest
from maturity of such principal or interest (in whatever manner same may be
brought about) until paid at the highest non-usurious rate allowed by applicable
law. In the event default is made in the payment of this Note in whatever manner
its maturity may be brought about, and it is placed in the hands of an attorney
for collection, or is collected through probate, bankruptcy or other
proceedings, Maker promises to pay all costs and reasonable attorneys' fees
incurred by Payee as a result thereof.
Maker and every surety, endorser and guarantor of this Note waive
grace, notice, demand, presentment for payment, notice of non-payment, protest,
notice of protest, notice of intention to accelerate, notice of acceleration of
the indebtedness due hereunder and all other notice, filing of suit and
diligence in collecting this Note, and the enforcing of any of the security
rights of Payee, and consent and agree that the time of payment hereof may be
extended without notice at any time and from time to time, and for periods of
time whether or not for a term or terms in excess of the original term hereof,
without notice or consideration to, or consent from, any of them.
This Note may be prepaid at any time, in whole or in part, without any
penalty.
All regular installments and any prepayment sums as received by Payee
or other holder hereof shall be applied to any indebtedness of Maker to Payee in
such order as Payee shall elect in its sole discretion.
This Note is secured by that certain Deed of Trust instrument of even
date herewith executed by Maker to Payee covering, among other things, that
certain tract of land located in Lubbock County, Texas as more particularly
described on Exhibit A attached thereto and made a part thereof for all
purposes.
EXHIBIT E - FORM OF NON-RECOURSE PROMISSORY NOTE - Page 2
<PAGE> 152
The terms and provisions hereof shall be binding upon and inure to the
benefit of Maker and Payee and their respective successors and assigns.
Subject to the remaining terms and provisions hereof, without impairing
the rights, powers, privileges, liens and security interests hereunder or under
any other agreements executed in connection with or as security for the payment
of this Note, Payee, by its acceptance hereof, hereby agrees that payment of
this Note and performance of Maker's obligations under the deed of trust
described above or any other instrument securing this Note shall be enforced
solely from the above-described property and/or any and all other property
(whether real, personal, tangible or intangible) covered by the deed of trust
described above or any other instrument securing this Note. Subject to the
remaining terms and provisions hereof, the provisions set forth in this
paragraph are not intended as any release or discharge of the indebtedness
evidenced hereby but are intended only as a covenant not to sue for a
deficiency, it being expressly understood that nothing contained herein shall
obligate Maker, or Maker's administrators, successors or assigns, further than
to bind their right, title and interest in and to any and all property securing
this Note, and in the event of a default hereunder or under any deed of trust,
or under any other security instrument executed and delivered in connection
herewith or therewith, the legal holder hereof shall not be entitled to a
personal or deficiency judgment, and none shall be sought or entered.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT THAT THE APPLICABILITY OF ANY
OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, IN WHICH CASE
SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING.
The terms and provisions hereof shall be binding upon and inure to the
benefit of Maker and Payee and their respective successors and assigns.
EXECUTED by the undersigned under seal with the intent that this
instrument be an instrument under seal as of the day, month and year first above
written.
MAKER:
EQK REALTY INVESTORS I
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT E - FORM OF NON-RECOURSE PROMISSORY NOTE - Page 3
<PAGE> 153
EXHIBIT F
FORM OF ASSUMPTION AGREEMENT
(Midland Loan)
THIS ASSUMPTION AGREEMENT ("Agreement") is made as of ___________
1998 ("Effective Date") by and among American Realty Trust, Inc., a Georgia
corporation ("Seller") and EQK Realty Investors I, a Massachusetts trust
("Purchaser"), pursuant to the Purchase and Sale Agreement dated as of
____________, 1998, among Seller and Purchaser (as may be amended, the "Purchase
Agreement").
A. Pursuant to the Purchase Agreement, concurrently herewith, Seller
has conveyed to Purchaser all of its right, title and interest in and to the
real property and improvements located at 3701 19th Street and 3702 20th Street,
Lubbock, Lubbock County, Texas (the "Property").
B. Seller is the current obligor under that certain Promissory Note
(the "Note") in the original principal amount of $_________ dated ____________,
and payable to Midland Loan Services (the "Holder") which note is secured by a
certain Deed of Trust on the Property dated ___________, and recorded on
_____________, at [Reception No. ___________] in the records of the Clerk and
Recorder of the City and County of Lubbock, State of Texas (the "Deed of
Trust").
C. Holder has agreed to approve the transfer of the Property and
release Seller from all liability under the above Note upon provision to Holder
of this Agreement and the certification as contained herein from Purchaser, as
transferees of the Property, that Purchaser is an entity affiliated with Seller.
NOW, THEREFORE, in consideration of the Property and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. Purchaser hereby assumes and agrees to pay, perform, fulfill
and discharge when due, all obligations and liabilities of Seller under the Note
and the Deed of Trust, subject to any limitation on personal liability set forth
in the Note and/or Deed of Trust.
2. Purchaser hereby certifies that it is an entity affiliated with
Seller and all parties hereto agree that, for purposes of this Section 2, the
Holder is an intended third party beneficiary to this Assumption Agreement.
3. Purchaser will defend, indemnify and hold Seller harmless from
and against any and all claims, losses, costs and expenses, including reasonable
attorneys' fees, arising out of or relating to the Deed of Trust or the Note
after the date hereof.
EXHIBIT F - FORM OF ASSUMPTION AGREEMENT - PAGE 1
<PAGE> 154
4. Notwithstanding anything herein to the contrary, Purchaser's
liability under this Assumption Agreement shall be limited to its interest in
the Property.
5. This Agreement shall be governed and construed in accordance
with the laws of the State of Texas.
6. This Agreement may be executed in counterparts, which together
shall constitute but one and the same document. Such counterparts may be
transmitted by telecopy, the telecopy to have full force and effect as if it
were an original.
EXHIBIT F - FORM OF ASSUMPTION AGREEMENT - PAGE 2
<PAGE> 155
IN WITNESS WHEREOF, the parties have executed this agreement as of
the date first above written.
SELLER:
AMERICAN REALTY TRUST, a Georgia corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
PURCHASER:
EQK REALTY INVESTORS I, a Massachusetts trust
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
CONSENTED AND AGREED TO
EFFECTIVE AS OF THE _____
DAY OF _________, 1998:
MIDLAND LOAN SERVICES
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
EXHIBIT F - FORM OF ASSUMPTION AGREEMENT - PAGE 3
<PAGE> 156
EXHIBIT G
Copy of Midland Loan Documentation
[Previously Provided]
<PAGE> 1
EXHIBIT 99.2
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
BETWEEN
LEND LEASE PORTFOLIO MANAGEMENT, INC.,
AS SELLING SHAREHOLDER
AND
AMERICAN REALTY TRUST, INC.,
AS PURCHASER
---------------------------
DATED AS OF AUGUST 25, 1998
---------------------------
-----------------------------------------------------
<PAGE> 2
AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
This Amended and Restated Stock Purchase Agreement (the "Agreement") is
entered into this 25th day of August, 1998, between Lend Lease Portfolio
Management, Inc. (the "Selling Shareholder") and American Realty Trust, Inc.
(the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Selling Shareholder and the Purchaser entered into that
certain Stock Purchase Agreement dated as of the 23rd day of December, 1997, and
now desire to amend and restate such agreement in its entirety herein;
WHEREAS, the Selling Shareholder owns 1,685,556 outstanding shares of
beneficial interest of EQK Realty Investors I, par value $0.01 per share (the
"Common Stock");
WHEREAS, the Selling Shareholder desires to sell to the Purchaser all
of the shares of Common Stock owned by such Selling Shareholder for the
consideration set forth herein; and
WHEREAS, the Purchaser desires to purchase from the Selling Shareholder
such shares of Common Stock on the terms and subject to the conditions set forth
herein; and
WHEREAS, immediately after the execution of this Agreement, the
Purchaser will file a Registration Statement on Form S-3 (the "Registration
Statement") for registration of 105,655 shares of its Preferred Stock (as
defined in Section 1.2) under the Securities Act of 1933, as amended (the
"Securities Act").
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and subject to and on the terms and conditions herein set forth, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
Section 1.1. PURCHASE AND SALE OF SHARES. On the Closing Date (as
defined in Section 1.3), pursuant to the terms and conditions of this Agreement,
the Selling Shareholder shall sell and transfer to the Purchaser, and the
Purchaser shall purchase and accept from the Selling Shareholder, 1,685,556
shares of Common Stock (collectively, the "Shares") for the Purchase Price (as
defined in Section 1.2).
<PAGE> 3
Section 1.2. PURCHASE PRICE. The aggregate purchase price payable by
the Purchaser to the Selling Shareholder for the Shares shall be $505,667.00
payable exclusively as 50,566 shares of Series F Cumulative Convertible
Preferred Stock, par value $2.00 per share, with a stated liquidation value of
$10.00 per share, of the Purchaser (such shares, the "Preferred Stock", and the
aggregate liquidation value of the Preferred Stock so delivered to the Selling
Shareholder, the "Purchase Price").
Section 1.3. CLOSING. The closing of the purchase and sale of the
Shares contemplated hereby (the "Closing") will take place at the offices of
Andrews & Kurth L.L.P., in Dallas, Texas, at a mutually agreeable time,
following the satisfaction of each of the conditions described in Sections 4.1
and 4.2 hereof, or on such other day as may be mutually agreed upon in writing
by the Purchaser and the Selling Shareholder (the "Closing Date"). Prior to the
Closing Date, (i) the Selling Shareholder shall have delivered or caused to be
delivered to The Depository Trust Company ("DTC") or a participant thereof (a
"Participant") the certificate or certificates representing the Shares, along
with a duly executed stock power attached thereto and such other assignments or
instruments of conveyance and transfer, in form and substance reasonably
satisfactory to the Purchaser and its counsel, as shall be effective to vest in
the Purchaser all of the Selling Shareholder's right, title and interest in and
to the Shares, and (ii) the Purchaser shall have delivered or caused to be
delivered to DTC or a Participant the certificate or certificates representing
the Preferred Stock, registered in the name of "CEDE & CO.", as DTC's nominee,
along with an irrevocable instruction letter to DTC instructing DTC to release
the Preferred Stock to the Selling Shareholder upon delivery and release by the
Selling Shareholders of the Shares to Purchaser. Notwithstanding the foregoing,
the procedures for delivery of the Shares and the Preferred Stock set forth
above may be varied, if necessary, in order to comply with the standard
practices and procedures of DTC.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDER.
The Selling Shareholder hereby covenants with, represents and warrants to the
Purchaser as follows:
(A) Shares. The Shares are now, and on the Closing Date will
be, owned of record and beneficially by the Selling Shareholder free
and clear of any security interest, pledge, option, lien, claim,
commitment, proxy, equity, right, restriction on transfer or
encumbrance of any nature whatsoever (collectively, "Encumbrances").
The Shares constitute all of the Common Stock owned by the Selling
Shareholder. There are no Encumbrances whatsoever, fixed or contingent,
that directly or indirectly, (i) provide for the sale, pledge or other
transfer or disposition of any of the Shares held by the Selling
Shareholder, any interest therein or any rights with respect thereto,
or relate to the voting, disposition, exercise, conversion or control
of the Shares or (ii) obligate the Selling Shareholder to grant, offer
or enter into any of the foregoing. Except as provided for herein and
except for any restrictions on transfer under applicable state and
federal securities laws, upon the Closing, the Purchaser will acquire
valid and indefeasible title to the Shares free and clear of any
Encumbrance.
2
<PAGE> 4
(B) Non-Contravention. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby by the Selling Shareholder will not result in a violation or
breach of or constitute a default under any term or provision of
articles of incorporation or bylaws of the Selling Shareholder.
(C) No Conflicts. The execution and delivery of this Agreement
by the Selling Shareholder, and the consummation of the transactions
contemplated hereby, will not conflict with or violate any agreement,
law, rule, regulation, ordinance, order, writ, injunction, judgment or
decree applicable to or binding on the Selling Shareholder.
(D) Organization, Qualification and Authority of the Selling
Shareholder. The Selling Shareholder is duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation. The Selling Shareholder has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and otherwise perform its obligations
hereunder. This Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and constitutes a legal, valid and
binding agreement of the Selling Shareholder, enforceable against the
Selling Shareholder in accordance with its terms, subject to
bankruptcy, court or regulatory agency order and the exercise of such
equitable remedies as may be applicable or available to the Selling
Shareholder.
(E) No Consents or Approvals. The Selling Shareholder is not
required to submit any notice, report or other filing with any
governmental or regulatory authority or instrumentality, and no waiver,
consent, approval or authorization of any governmental or regulatory
authority or any other person is required to be obtained or made by the
Selling Shareholder, in connection with the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby.
(F) No Commission. The Selling Shareholder has not employed
any broker, agent, finder or advisor in connection with any transaction
contemplated by this Agreement. The Selling Shareholder hereby
indemnifies the Purchaser against any liability for a broker's
commission or agent or finder's fee of any description incurred by the
Selling Shareholder with respect to any transaction contemplated by
this Agreement.
(G) Litigation. As of the date hereof, except with respect to
that certain lawsuit styled Dorothy Lewis, et. al.v. EQK Realty
Investors I, et. al. and filed in the Superior Court of the
Commonwealth of Massachusetts under Civil Action No. 98-0582, no
action, suit, proceeding or governmental investigation is pending or,
to the knowledge of the Selling Shareholder, threatened that seeks to
delay or prevent the consummation of the transactions contemplated by
this Agreement.
(H) Disclosure. No representation or warranty by the Selling
Shareholder in this Agreement nor any certificate, schedule, statement,
document or instrument furnished or to be furnished to the Purchaser
pursuant hereto, or in connection with the execution or performance of
this Agreement, contains or will contain any untrue statement of a
material
3
<PAGE> 5
fact or, subject to any applicable qualifications contained in such
certificate, schedule, statement, document or instrument, omits or will
omit to state a material fact necessary in order to make any statement
herein or therein not misleading, in light of the circumstances under
which they were made.
(I) Solvency. The Selling Shareholder is not now insolvent,
nor will it be rendered insolvent by the consummation of the
transactions contemplated by this Agreement. As used in this Section
2.1(I), "insolvent" means, for the Selling Shareholder, that the sum of
the present fair saleable value of its assets does not and/or will not
exceed its debts and other probable liabilities, and the term "debts"
includes any legal liability, whether matured or unmatured, liquidated
or unliquidated, absolute, fixed or contingent, disputed or secured or
unsecured.
(J) Institutional Accredited Investor Status. The Selling
Shareholder is an institutional "accredited investor" within the
meaning of subparagraph (3) of Rule 501(a) under the Securities Act.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to, and agrees with, the Selling Shareholder
as follows:
(A) Organization and Authority of the Purchaser. The Purchaser
has been duly incorporated, is validly existing and is in good standing
under the laws of the State of Georgia, has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and otherwise carry out its
obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Purchaser and constitutes a legal, valid
and binding agreement of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to bankruptcy, court or
regulatory agency order and the exercise of such equitable remedies as
may be applicable or available to the Purchaser.
(B) Litigation. As of the date hereof, no action, suit,
proceeding or governmental investigation is pending or, to the
knowledge of the Purchaser, threatened that seeks to delay or prevent
the consummation of the transactions contemplated by this Agreement.
(C) Non-Contravention. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby by the Purchaser will not result in a violation or breach of or
constitute a default under any term or provision of the articles of
incorporation or bylaws of the Purchaser.
(D) No Conflicts. The execution and delivery of this Agreement
by the Purchaser, and the consummation of the transactions contemplated
hereby and thereby, will not conflict with or violate any agreement,
law, rule, regulation, ordinance, order, writ, injunction, judgment or
decree applicable to or binding on the Purchaser.
(E) No Consents or Approvals. The Purchaser is not required to
submit any notice, report or other filing with any governmental or
regulatory authority or
4
<PAGE> 6
instrumentality, and no waiver, consent, approval or authorization of
any governmental or regulatory authority or any other person is
required to be obtained or made by the Purchaser, in connection with
the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby, other than (i)
the filing of the Registration Statement with the Securities and
Exchange Commission (the "SEC"), (ii) the filing of a certificate of
merger for EQK Realty Investors I ("EQK") and ART Newco, L.L.C. with
the Secretary of State of the Commonwealth of Massachusetts, (iii) the
filing of a Schedule 13D with the SEC, and (iv) any such other filings,
consents or approvals that may be necessary or required solely by
reason of EQK's (as opposed to any other third party's) participation
in the transactions contemplated hereby.
(F) Purchase Price. The Purchaser has authorized the issuance
of the number of shares of Preferred Stock necessary to consummate the
transactions contemplated by this Agreement. The Preferred Stock will,
upon consummation of the transactions contemplated by this Agreement,
be owned of record and beneficially by the Selling Shareholder free and
clear of any Encumbrances. There are no Encumbrances whatsoever, fixed
or contingent, that directly or indirectly, (i) provide for the sale,
pledge or other transfer or disposition of any of the Preferred Stock,
any interest therein or any rights with respect thereto, or relate to
the voting, disposition, exercise, conversion or control of the
Preferred Stock or (ii) obligate the Purchaser to grant, offer or enter
into any of the foregoing. Except as provided for herein and except for
any restrictions on transfer under applicable state and federal
securities laws, upon the Closing, the Selling Shareholder will acquire
valid and indefeasible title to the Preferred Stock free and clear of
any Encumbrance.
(G) Commission. Purchaser hereby indemnifies the Selling
Shareholder against any liability for a broker's commission, finder's
fee or other fee of any description incurred by the Purchaser with
respect to any transaction contemplated by this Agreement.
(H) Disclosure. No representation or warranty by the Purchaser
in this Agreement nor any certificate, schedule, statement, document or
instrument furnished or to be furnished to the Selling Shareholder
pursuant hereto, or in connection with the negotiation, execution or
performance of this Agreement, contains or will contain any untrue
statement of a material fact or, subject to any applicable
qualifications contained in such certificate, schedule, statement,
document or instrument, omits or will omit to state a material fact
necessary in order to make any statement herein or therein not
misleading in light of the circumstances under which they were made.
(I) Registration and Listing of the Preferred Stock. Following
the execution of this Agreement by the Selling Shareholder, Purchaser
will promptly take such actions as are necessary and within its control
to cause the Preferred Stock to become (i) registered under the
Securities Act pursuant to the Registration Statement, and (ii) listed,
and thereafter to continue to be listed, for trading on the New York
Stock Exchange or another national securities exchange, including,
without limitation, the Nasdaq Stock Market (such securities exchange,
the "Securities Exchange").
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<PAGE> 7
ARTICLE III
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 3.1. TRANSFER TAXES. The Purchaser will pay all transfer,
federal, state or local taxes, if any, payable in connection with the transfer
of the Shares pursuant to this Agreement, and the Selling Shareholder will pay
all transfer, federal, state or local taxes, if any, payable in connection with
the transfer or issuance of the Preferred Stock pursuant to this Agreement.
Section 3.2. CONFIDENTIALITY. The Purchaser and the Selling
Shareholder, and each of their respective officers, directors, representatives
and agents ("Representatives"), if any, agree to treat all information exchanged
by the parties hereto and their Representatives in connection with the
transactions contemplated herein, as confidential, including all notes,
analyses, compilations, studies or other documents, whether prepared by any
party hereto or others, which contain or otherwise reflect such information
(collectively, the "Confidential Information"). Except as required by law, the
Purchaser and the Selling Shareholder agree that they shall not disclose any
Confidential Information to third parties without the express written consent of
each other party hereto. The obligations of the Purchaser and the Selling
Shareholder hereunder will continue in full force and effect until Closing, and,
if this Agreement is terminated, will remain in full force and effect. The
Purchaser and the Selling Shareholder further agree that they (and their
Representatives) will not use any of the Confidential Information for any reason
or purpose other than to evaluate the transactions contemplated by this
Agreement.
The term "Confidential Information" does not include information which
(i) is or becomes generally available to the public other than as a result of
disclosure in breach of this Section 3.2 by any party hereto or any
Representative, (ii) was available to any party hereto on a non-confidential
basis prior to its disclosure to such party by any other party hereto or their
respective Representatives, or (iii) was or is disclosed to any party hereto on
a non-confidential basis from a source other than any other party hereto or
their respective Representatives, provided that such source was or is, to the
best of such party's knowledge, at the time of such disclosure, not prohibited
from transmitting the information to such party or such party's Representatives
by a contractual, legal or fiduciary obligation.
Section 3.3. REGULATORY AND OTHER AUTHORIZATIONS. Each of the parties
hereto will use its commercially reasonable efforts to obtain the
authorizations, consents, orders and approvals of governmental authorities that
may be or become necessary for the performance of his, her or its obligations
pursuant to this Agreement and the consummation of the transactions contemplated
hereby and will cooperate fully with each other in promptly seeking to obtain
such authorizations, consents, orders and approvals as may be necessary for the
performance of their respective obligations pursuant to this Agreement. The
parties hereto will not take any action that will have the effect of delaying,
impairing or impeding the receipt of any required approvals and will use
reasonable efforts to secure such approvals as promptly as possible.
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<PAGE> 8
Section 3.4. SATISFACTION OF CONDITIONS. Each of the parties hereto
will use his, her or its reasonable efforts to satisfy at or prior to the
Closing Date each of the conditions to the other party's obligations set forth
in Article IV hereof.
Section 3.5. FURTHER ASSURANCES. At any time and from time to time
after the Closing, the parties agree to cooperate with each other, to execute
and deliver such other documents, instruments of transfer or assignment, files,
books and records and do all such further acts and things as may be reasonably
required to carry out the transactions contemplated by this Agreement.
Section 3.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and covenants made pursuant to or in connection with
this Agreement shall survive (A) the execution and delivery of this Agreement,
(B) any investigation at any time made by or on behalf of the parties hereto and
(C) for a period of one year thereafter, the Closing. If the Closing does not
take place, each representation, warranty and covenant shall terminate upon the
termination of this Agreement pursuant to Section 5.1.
Section 3.7. COVENANT NOT TO PURCHASE ADDITIONAL COMMON STOCK. In
consideration for Purchaser's purchase of Shares from Selling Shareholder,
Selling Shareholder hereby covenants that it will not purchase or otherwise
acquire any additional shares of Common Stock for a period commencing on the
date hereof and ending 42 months after the Closing Date.
Section 3.8. RESTRICTIONS ON TRANSFER OF PREFERRED STOCK. Selling
Shareholder understands that it may be deemed to be an "affiliate" of EQK within
the meaning of Rule 145 ("Rule 145") promulgated under the Securities Act and
the applicable regulations promulgated by the Securities and Exchange Commission
(the "SEC"), although nothing contained herein should be construed as an
admission of such fact. Selling Shareholder further understands that, if it were
in fact an affiliate under the Securities Act, its ability to sell, assign or
transfer the Preferred Stock may be restricted unless such transaction is made
in conformity with the provisions of Rule 145. Selling Shareholder understands
that the Preferred Stock may only be sold (i) pursuant to the Registration
Statement or another registration statement with respect to the Preferred Stock
which has been declared effective by the SEC, (ii) in transactions which comply
with the provisions of Rule 145, or (iii) in a transaction that is exempt from
registration under the Securities Act. Purchaser hereby covenants to maintain
the effectiveness of the Registration Statement for a period of two years after
the Closing Date and to provide the Selling Shareholder or the Securities
Exchange, as applicable, upon the request of the Selling Shareholder, with a
resale prospectus relating to the Preferred Stock during such two-year period.
Purchaser further covenants that, during such two year period, Purchaser shall
use all reasonable efforts to make all filings of the nature specified in
paragraph (c)(1) of Rule 144 of the Securities Act.
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<PAGE> 9
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1. CONDITIONS TO OBLIGATION OF THE SELLING SHAREHOLDER TO
CLOSE. The obligation of the Selling Shareholder to consummate the Closing is
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions, unless waived in writing by the Selling Shareholder:
(A) Regulatory and Other Authorizations. All authorizations,
consents, approvals and orders of, and notices to, governmental
authorities or instrumentalities necessary for the performance by the
Selling Shareholder of this Agreement and the consummation by the
Selling Shareholder of the sale of the Shares and the other
transactions contemplated by this Agreement shall have been obtained or
made, and there shall be in effect no preliminary or permanent
injunction or other order of a court or governmental or regulatory
agency of competent jurisdiction directing that the transactions
contemplated herein, or any of them, not be consummated (collectively,
an "Order").
(B) Representations and Warranties. The representations and
warranties of the Purchaser contained in this Agreement shall be true
and correct in all material respects at the date hereof, and at and as
of the Closing Date, as if they were made at and as of the Closing
Date, except for any representations and warranties made or given as of
a specific date, which shall be true and correct in all material
respects as of such date; and the Purchaser shall have performed or
complied in all material respects with all obligations, agreements and
covenants required by this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(C) Certificate. The Purchaser shall have delivered to the
Selling Shareholder a certificate of the Purchaser, dated the Closing
Date, to the effect that the condition specified in paragraph (B) of
this Section 4.1 has been satisfied.
(D) Transfer of Preferred Stock. All legal instruments and
other documents required for the Purchaser to effect the transfer of
the Preferred Stock to the Selling Shareholder free and clear of all
liens and encumbrances shall have been duly executed.
(E) Approval of Merger Agreement. The Board of Trustees and
shareholders of EQK shall have approved the Amended and Restated
Agreement and Plan of Merger dated as of August 25, 1998 by and among
the Purchaser, ART Newco, L.L.C., Basic Capital Management, Inc., EQK
and the Selling Shareholder (the "Merger Agreement") and the
transactions contemplated thereby, including without limitation the
amendment and restatement of EQK's Amended and Restated Declaration of
Trust and the execution of the new advisory agreement, identified in
the Merger Agreement, between EQK and Basic Capital Management, Inc.
(F) Effectiveness of Registration Statements. The Registration
Statement shall have been declared effective by the SEC and no stop
order suspending effectiveness of the Registration Statement shall have
been issued by the SEC on or prior to the Closing Date.
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<PAGE> 10
In addition, the Purchaser's registration statement on Form S-4 (the
"Form S-4 Registration Statement") with respect to the issuance of
Preferred Shares in connection with the Merger Agreement shall have
been declared effective by the SEC and no stop order suspending the
effectiveness of the Form S-4 Registration Statement shall have been
issued by the SEC on or prior to the Closing Date.
(G) Sale of Harrisburg East Mall and Acquisition of Oak Tree
Village. EQK shall have (i) sold the real property known as the
"Harrisburg East Mall," paid off the related mortgages thereon and
distributed the net proceeds of such sale to the EQK shareholders,
including the Selling Shareholder, and (ii) acquired from the
Purchaser, upon terms and conditions mutually acceptable to EQK and the
Purchaser, that certain retail shopping center known as the "Oak Tree
Village" and located in Lubbock, Texas.
Section 4.2. CONDITIONS TO OBLIGATION OF THE PURCHASER TO CLOSE. The
obligation of the Purchaser to consummate the Closing is subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
unless waived in writing by the Purchaser:
(A) Regulatory and Other Authorizations. All authorizations,
consents, approvals and orders of, and notices to, governmental
authorities or instrumentalities necessary for the performance by the
Purchaser of this Agreement and the consummation by the Purchaser of
the purchase of the Shares and the other transactions contemplated
hereunder shall have been obtained or made and there shall be no Order
in effect.
(B) Representations and Warranties. The representations and
warranties of the Selling Shareholder contained in this Agreement shall
be true and correct in all material respects at the date hereof, and at
and as of the Closing Date, as if they were made at and as of the
Closing Date, except for any representations and warranties made or
given as of a specified date, which shall be true and correct in all
material respects as of such date.
(C) Certificate. The Selling Shareholder shall have delivered
to the Purchaser a certificate of the Selling Shareholder, dated the
Closing Date, to the effect that the condition specified in paragraph
(B) of this Section 4.2 has been satisfied.
(D) Transfer of Shares. All legal instruments and other
documents required for the Selling Shareholder to effect the transfer
of the Shares owned by the Selling Shareholder to the Purchaser free
and clear of all liens and encumbrances shall have been duly executed.
(E) Approval of Merger Agreement. The Board of Trustees and
shareholders of EQK shall have approved the Merger Agreement and the
transactions contemplated thereby (collectively, the "Merger-Related
Transactions"), including, without limitation, the amendment and
restatement of EQK's Amended and Restated Declaration of Trust, the
execution of a new advisory agreement between EQK and Basic Capital
Management, Inc., and the election of the new Board of Trustees. The
Selling Shareholder hereby agrees to vote in favor of the
Merger-Related Transactions.
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<PAGE> 11
(F) Effectiveness of Registration Statements. The Registration
Statement and the Form S-4 Registration Statement shall each have been
declared effective by the SEC and no stop order suspending
effectiveness of the Registration Statement or the Form S-4
Registration Statement shall have been issued by the SEC on or prior to
the Closing Date.
(G) Sale of Harrisburg East Mall and Acquisition of Oak Tree
Village. EQK shall have (i) sold the real property known as the
"Harrisburg East Mall," paid off the related mortgages thereon and
distributed the net proceeds of such sale to the EQK shareholders,
including the Selling Shareholder, and (ii) acquired from the
Purchaser, upon terms and conditions mutually acceptable to EQK and the
Purchaser, that certain retail shopping center known as the "Oak Tree
Village" and located in Lubbock, Texas.
ARTICLE V
TERMINATION
Section 5.1. TERMINATION. Notwithstanding anything in this Agreement to
the contrary, this Agreement may be terminated only (A) by the mutual written
consent of the Purchaser and the Selling Shareholder, (B) by either the
Purchaser, on the one hand, or the Selling Shareholder, on the other hand, at
any time, in the event of a breach by the other party which breach remains
uncured for ten (10) calendar days after notice in writing of such breach is
delivered to the breaching party, or (C) by either the Purchaser, on the one
hand, or the Selling Shareholder, on the other hand, by written notice to the
other if the Closing has not occurred prior to December 15, 1998, unless the
Closing has not occurred solely by reason of the failure of the party seeking to
terminate this Agreement to perform or observe any of the covenants or
agreements hereof to be performed by such party prior thereto.
Section 5.2. EFFECT OF TERMINATION. In the event of the termination of
this Agreement pursuant to Section 5.1, this Agreement, other than with respect
to the parties' respective indemnification obligations under Sections 2.1(F) and
2.2(G), the parties' obligations under Section 3.2, and the parties' obligations
under Sections 7.1 and 7.2, will thereafter become void and have no effect, and
there will be no liability on the part of any party or its stockholders or
directors or officers in respect thereof, except that nothing herein will
relieve any party from liability for any breach of this Agreement occurring
prior to such termination.
ARTICLE VI
INDEMNIFICATION
Section 6.1. INDEMNIFICATION BY THE SELLING SHAREHOLDER. Subject to the
terms of this Article VI, the Selling Shareholder shall indemnify and hold
harmless the Purchaser and each of its officers, directors, employees and
controlling persons from any liability, damage, loss, penalty, cost or expense,
including reasonable attorneys' fees and costs of investigating and defending
lawsuits, complaints, actions or other pending or threatened litigation, after
receiving full credit for the amount of any payments actually received as a
result of insurance coverage ("Costs") arising from or
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<PAGE> 12
attributable to any breach of or inaccuracy in any representation, warranty,
covenant or agreement made by the Selling Shareholder herein; provided, however,
the Purchaser shall give the Selling Shareholder written notice as soon as
practicable after the discovery thereof of any suspected breach of or inaccuracy
in any representation, warranty, covenant or agreement made by the Selling
Shareholder, and if the Selling Shareholder is able to cure such breach or
inaccuracy within ten days after receipt of such written notice, without any
Costs being incurred by the Purchaser, the indemnification provisions set forth
in this Section 6.1 shall not apply with respect to such breach or inaccuracy.
Section 6.2. THE SELLING SHAREHOLDER'S LIMITATION ON LIABILITY.
Notwithstanding any other provision in this Agreement, the obligation of the
Selling Shareholder to indemnify the Purchaser and its officers, directors,
employees and controlling persons pursuant to Section 6.1 against any Costs
sustained by reason of any claim made under Section 6.1 shall be limited to
claims as to which the Purchaser has given to the Selling Shareholder written
notice thereof; provided, however, that any delay or failure to notify the
Selling Shareholder of any claim shall not relieve the Selling Shareholder from
any liability except to the extent that the Selling Shareholder demonstrates
that the defense of such action is materially prejudiced by such delay or
failure to notify.
Section 6.3. INDEMNIFICATION BY THE PURCHASER. The Purchaser shall
indemnify and hold harmless the Selling Shareholder and each of its officers,
directors, employees and controlling persons, if any, from any Costs arising
from or attributable to any breach of or inaccuracy in any representation,
warranty, covenant or agreement made by the Purchaser herein; provided, however,
the Selling Shareholder shall give the Purchaser written notice as soon as
practicable after the discovery thereof of any suspected breach of or inaccuracy
in any representation, warranty, covenant or agreement made by the Purchaser,
and if the Purchaser is able to cure such breach or inaccuracy within ten days
after receipt of such written notice, without any Costs being incurred by the
Selling Shareholder, the indemnification provisions set forth in this Section
6.3 shall not apply with respect to such breach or inaccuracy.
Section 6.4. THE PURCHASER'S LIMITATION ON LIABILITY. Notwithstanding
any other provision in this Agreement, the obligation of the Purchaser to
indemnify the Selling Shareholder pursuant to Section 6.3 against any Costs
sustained by reason of any claim made under Section 6.3 shall be limited to
claims as to which the Selling Shareholder has given to the Purchaser written
notice thereof; provided, however, that any delay or failure to notify the
Purchaser of any claim shall not relieve the Purchaser from any liability except
to the extent that the Purchaser demonstrates that the defense of such action is
materially prejudiced by such delay or failure to notify.
Section 6.5. PROCEDURES FOR THIRD PARTY CLAIMS. Within twenty (20) days
after the assertion by any third party of any claim against any indemnitee that,
in the judgment of such indemnitee, may result in the incurrence by such
indemnitee of Costs for which such indemnitee would be entitled to
indemnification pursuant to this Agreement, such indemnitee shall deliver to the
indemnitor a written notice (the "Indemnity Notice") describing in reasonable
detail such claim; provided, however, that any delay or failure to notify the
indemnitor of any claim shall not relieve it from any liability except to the
extent that the indemnitor demonstrates that the defense of such action is
materially prejudiced by such delay or failure to notify. In the case of third
party claims, the indemnitor shall, within ten (10) days of receipt of notice of
such claim, notify the indemnitee
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of its intention to assume the defense of such claim. If the indemnitor shall
assume the defense of the claim, the indemnitor shall have the right and
obligation (A) to conduct any proceedings or negotiations in connection
therewith and necessary or appropriate to defend the indemnitee, (B) to take all
other required steps or proceedings to settle or defend any such claims, and (C)
to employ counsel to contest any such claim or liability in the name of the
indemnitee or otherwise. If defendants in any action include the indemnitee and
the indemnitor, and the indemnitee shall have been advised by its counsel in
writing that there may be legal defenses available to the indemnitee which are
different from or in addition to those available to the indemnitor, the
indemnitee shall have the right to employ its own counsel in such action, and,
in such event, the fees and expenses of such counsel shall be borne by the
indemnitor. If the indemnitor shall not assume the defense of any such claim or
litigation resulting therefrom, the indemnitee may defend against any such claim
or litigation in such manner as it may deem appropriate and the indemnitee may
settle such claim or litigation on such terms as it may deem appropriate;
provided, however, that any such settlement shall be subject to the prior
consent of the indemnitor, which consent shall not be unreasonably withheld.
Within ten (10) days after final determination with respect to a third party
claim, the indemnitor shall pay to the indemnitee the Costs incurred by
indemnitee in respect of which indemnity may be sought pursuant to this Section
6.5. In the case of a non-third party claim, payment of damages incurred by the
indemnitee shall be made by the indemnitor within ten (10) days after receipt of
the Indemnity Notice by indemnitor.
A final determination of a disputed claim as to damages shall be (A) a
judgment of any court determining the validity of a disputed claim, if no appeal
is pending from such judgment or if the time to appeal therefrom has elapsed,
(B) an award of any arbitration determining the validity of such disputed claim,
if there is not pending any motion to set aside such award or if the time within
which to move to set such award aside has elapsed, (C) a written agreement as to
the termination of the dispute with respect to such claim signed by all of the
parties thereto or their attorneys, (D) a written acknowledgment of the
indemnitor that he, she or it no longer disputes the validity of such claim, or
(E) such other evidence of final determination of a disputed claim as shall be
acceptable to the parties.
ARTICLE VII
MISCELLANEOUS
Section 7.1. EXPENSES. Unless otherwise indicated, the parties will
bear their own respective expenses (including, but not limited to, all
compensation and expenses of counsel, financial advisers, finders, brokers,
consultants, actuaries and independent accountants) incurred in connection with
the negotiation, preparation and execution of this Agreement and consummation of
the transactions contemplated hereby.
Section 7.2. PUBLIC DISCLOSURE. Each of the parties to this Agreement
hereby agrees with each other party that, except as may be required to comply
with the requirements of applicable law, no press release or similar public
announcement or communication will be made or caused to be made concerning the
execution or performance of this Agreement unless specifically approved in
advance by all parties.
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Section 7.3. GOVERNING LAW. This Agreement will be deemed to be made in
and in all respects will be interpreted, construed and governed by and in
accordance with the internal, substantive law of the State of Georgia without
reference to principles of conflicts of laws.
Section 7.4. NOTICES. Any notices and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given when delivered to the appropriate party at the following
addresses:
(i) if to the Purchaser:
American Realty Trust, Inc.
c/o Basic Capital Management, Inc.
10670 North Central Expressway, Suite 400
Dallas, Texas 75231
Attention: Robert A. Waldman
(ii) if to the Selling Shareholder:
Lend Lease Portfolio Management, Inc.
5775-D Peachtree Dunwoody Road, Suite 200
Atlanta, Georgia 30342-1505
Attention: General Counsel
or at such other place or places or to such other persons as shall be designated
in writing by the parties to this Agreement in the manner herein provided.
Section 7.5. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and will not in any way affect
interpretation of this Agreement.
Section 7.6. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which, when taken together, shall constitute one and
the same agreement. Signatures on this Agreement may be communicated by
facsimile transmission and shall be binding upon the parties transmitting the
same by facsimile transmission. Counterparts with original signatures shall be
provided to the other party within five (5) days of the applicable facsimile
transmission, provided, however, that the failure to provide the original
counterpart shall have no effect on the validity or the binding nature of the
Agreement.
Section 7.7. ASSIGNMENT. Except as provided in the following sentence,
this Agreement may not be assigned, by operation of law or otherwise. The
Purchaser may assign its rights under this Agreement in whole or in part to a
wholly owned subsidiary of the Purchaser that will take title to the Shares and
will assume all obligations of the Purchaser hereunder; provided, however, in
such event, the Purchaser will remain fully liable for the fulfillment of all
such obligations. This Agreement will be binding upon and inure to the benefit
of successors and assigns of the parties hereto.
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Section 7.8. MISCELLANEOUS. This Agreement (A) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties, with respect to the subject matter hereof; and (B)
is not intended to confer upon any other persons any rights or remedies
hereunder. If any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section 7.9. SPECIFIC PERFORMANCE. The parties hereto acknowledge and
agree that the breach of the provisions of this Agreement by the Selling
Shareholder or the Purchaser could not be adequately compensated with monetary
damages, and the parties hereto agree, accordingly, that injunctive relief and
specific performance shall be appropriate remedies to enforce the provisions of
this Agreement and waive any claim or defense that there is an adequate remedy
at law for such breach; provided, however, that nothing herein shall limit the
remedies available and all remedies herein are in addition to any remedies
available at law or otherwise.
Section 7.10. AMENDMENTS AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
each party to this Agreement. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SELLING SHAREHOLDER:
LEND LEASE PORTFOLIO MANAGEMENT, INC.
By /s/ William G. Brown, Jr.
-------------------------------------
Name: William G. Brown, Jr.
----------------------------------
Title: Vice President
---------------------------------
PURCHASER:
AMERICAN REALTY TRUST, INC.
By /s/ Robert A. Waldman
-------------------------------------
Name: Robert A. Waldman
----------------------------------
Title: Senior Vice President
---------------------------------
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<PAGE> 1
EXHIBIT 99.3
- --------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
BETWEEN
SUMMIT VENTURE, L.P.
AS SELLING SHAREHOLDER
AND
AMERICAN REALTY TRUST, INC.,
AS PURCHASER
---------------------------
DATED AS OF AUGUST 26, 1998
---------------------------
-----------------------------------------------------
<PAGE> 2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into this
26th day of August, 1998, between Summit Venture, L.P. (the "Selling
Shareholder") and American Realty Trust, Inc. (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Selling Shareholder owns 916,900 outstanding shares of
beneficial interest of EQK Realty Investors I ("EQK"), par value $0.01 per share
(the "Common Stock");
WHEREAS, the Selling Shareholder desires to sell to the Purchaser all
of the shares of Common Stock owned by such Selling Shareholder for the
consideration set forth herein; and
WHEREAS, the Purchaser desires to purchase from the Selling Shareholder
such shares of Common Stock on the terms and subject to the conditions set forth
herein; and
WHEREAS, immediately after the execution of this Agreement, the
Purchaser will file a Registration Statement on Form S-3 (the "Registration
Statement") for registration of 105,655 shares of its Preferred Stock (as
defined in Section 1.2) under the Securities Act of 1933, as amended (the
"Securities Act").
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and subject to and on the terms and conditions herein set forth, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
Section 1.1. PURCHASE AND SALE OF SHARES. On the Closing Date (as
defined in Section 1.3), pursuant to the terms and conditions of this Agreement,
the Selling Shareholder shall sell and transfer to the Purchaser, and the
Purchaser shall purchase and accept from the Selling Shareholder, 916,900 shares
of Common Stock (collectively, the "Shares") for the Purchase Price (as defined
in Section 1.2).
Section 1.2. PURCHASE PRICE. The aggregate purchase price payable by
the Purchaser to the Selling Shareholder for the Shares shall be $275,070.00
payable exclusively as 27,507 shares of Series F Cumulative Convertible
Preferred Stock, par value $2.00 per share, with a stated liquidation value of
$10.00 per share, of the Purchaser (such shares, the "Preferred Stock", and the
aggregate liquidation value of the Preferred Stock so delivered to the Selling
Shareholder, the "Purchase Price").
<PAGE> 3
Section 1.3. CLOSING. The closing of the purchase and sale of the
Shares contemplated hereby (the "Closing") will take place at the offices of
Andrews & Kurth L.L.P., in Dallas, Texas, at a mutually agreeable time,
following the satisfaction of each of the conditions described in Sections 4.1
and 4.2 hereof, or on such other day as may be mutually agreed upon in writing
by the Purchaser and the Selling Shareholder (the "Closing Date"). Prior to the
Closing Date, (i) the Selling Shareholder shall have delivered or caused to be
delivered to The Depository Trust Company ("DTC") or a participant thereof (a
"Participant") the certificate or certificates representing the Shares, along
with a duly executed stock power attached thereto and such other assignments or
instruments of conveyance and transfer, in form and substance reasonably
satisfactory to the Purchaser and its counsel, as shall be effective to vest in
the Purchaser all of the Selling Shareholder's right, title and interest in and
to the Shares, and (ii) the Purchaser shall have delivered or caused to be
delivered to DTC or a Participant the certificate or certificates representing
the Preferred Stock, registered in the name of "CEDE & CO.", as DTC's nominee,
along with an irrevocable instruction letter to DTC instructing DTC to release
the Preferred Stock to the Selling Shareholder upon delivery and release by the
Selling Shareholders of the Shares to Purchaser. Notwithstanding the foregoing,
the procedures for delivery of the Shares and the Preferred Stock set forth
above may be varied, if necessary, in order to comply with the standard
practices and procedures of DTC.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDER.
The Selling Shareholder hereby covenants with, represents and warrants to the
Purchaser as follows:
(A) Shares. The Shares are now, and on the Closing Date will
be, owned of record and beneficially by the Selling Shareholder free
and clear of any security interest, pledge, option, lien, claim,
commitment, proxy, equity, right, restriction on transfer or
encumbrance of any nature whatsoever (collectively, "Encumbrances").
The Shares constitute all of the Common Stock owned by the Selling
Shareholder. There are no Encumbrances whatsoever, fixed or contingent,
that directly or indirectly, (i) provide for the sale, pledge or other
transfer or disposition of any of the Shares held by the Selling
Shareholder, any interest therein or any rights with respect thereto,
or relate to the voting, disposition, exercise, conversion or control
of the Shares or (ii) obligate the Selling Shareholder to grant, offer
or enter into any of the foregoing. Except as provided for herein and
except for any restrictions on transfer under applicable state and
federal securities laws, upon the Closing, the Purchaser will acquire
valid and indefeasible title to the Shares free and clear of any
Encumbrance.
(B) Non-Contravention. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby by the Selling Shareholder will not result in a violation or
breach of or constitute a default under any term or provision of the
Selling Shareholder's agreement of limited partnership.
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(C) No Conflicts. The execution and delivery of this Agreement
by the Selling Shareholder, and the consummation of the transactions
contemplated hereby, will not conflict with or violate any agreement,
law, rule, regulation, ordinance, order, writ, injunction, judgment or
decree applicable to or binding on the Selling Shareholder.
(D) Organization, Qualification and Authority of the Selling
Shareholder. The Selling Shareholder is duly formed, validly existing
and in good standing under the laws of the jurisdiction of its
formation. The Selling Shareholder has all requisite partnership power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and otherwise perform its obligations
hereunder. This Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and constitutes a legal, valid and
binding agreement of the Selling Shareholder, enforceable against the
Selling Shareholder in accordance with its terms, subject to
bankruptcy, court or regulatory agency order and the exercise of such
equitable remedies as may be applicable or available to the Selling
Shareholder.
(E) No Consents or Approvals. Except such filings as may be
necessary under the Investment Company Act of 1940, as amended, and the
federal securities laws, the Selling Shareholder is not required to
submit any notice, report or other filing with any governmental or
regulatory authority or instrumentality, and no waiver, consent,
approval or authorization of any governmental or regulatory authority
or any other person is required to be obtained or made by the Selling
Shareholder, in connection with the execution, delivery or performance
of this Agreement or the consummation of the transactions contemplated
hereby.
(F) No Commission. The Selling Shareholder has not employed
any broker, agent, finder or advisor in connection with any transaction
contemplated by this Agreement. The Selling Shareholder hereby
indemnifies the Purchaser against any liability for a broker's
commission or agent or finder's fee of any description incurred by the
Selling Shareholder with respect to any transaction contemplated by
this Agreement.
(G) Litigation. As of the date hereof, no action, suit,
proceeding or governmental investigation is pending or, to the
knowledge of the Selling Shareholder, threatened that seeks to delay or
prevent the consummation of the transactions contemplated by this
Agreement.
(H) Disclosure. No representation or warranty by the Selling
Shareholder in this Agreement nor any certificate, schedule, statement,
document or instrument furnished or to be furnished to the Purchaser
pursuant hereto, or in connection with the execution or performance of
this Agreement, contains or will contain any untrue statement of a
material fact or, subject to any applicable qualifications contained in
such certificate, schedule, statement, document or instrument, omits or
will omit to state a material fact necessary in order to make any
statement herein or therein not misleading, in light of the
circumstances under which they were made.
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(I) Solvency. The Selling Shareholder is not now insolvent,
nor will it be rendered insolvent by the consummation of the
transactions contemplated by this Agreement. As used in this Section
2.1(I), "insolvent" means, for the Selling Shareholder, that the sum of
the present fair saleable value of its assets does not and/or will not
exceed its debts and other probable liabilities, and the term "debts"
includes any legal liability, whether matured or unmatured, liquidated
or unliquidated, absolute, fixed or contingent, disputed or secured or
unsecured.
(J) Institutional Accredited Investor Status. The Selling
Shareholder is an institutional "accredited investor" within the
meaning of subparagraph (3) of Rule 501(a) under the Securities Act.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to, and agrees with, the Selling Shareholder
as follows:
(A) Organization and Authority of the Purchaser. The Purchaser
has been duly incorporated, is validly existing and is in good standing
under the laws of the State of Georgia, has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and otherwise carry out its
obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Purchaser and constitutes a legal, valid
and binding agreement of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to bankruptcy, court or
regulatory agency order and the exercise of such equitable remedies as
may be applicable or available to the Purchaser.
(B) Litigation. As of the date hereof, no action, suit,
proceeding or governmental investigation is pending or, to the
knowledge of the Purchaser, threatened that seeks to delay or prevent
the consummation of the transactions contemplated by this Agreement.
(C) Non-Contravention. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby by the Purchaser will not result in a violation or breach of or
constitute a default under any term or provision of the articles of
incorporation or bylaws of the Purchaser.
(D) No Conflicts. The execution and delivery of this Agreement
by the Purchaser, and the consummation of the transactions contemplated
hereby and thereby, will not conflict with or violate any agreement,
law, rule, regulation, ordinance, order, writ, injunction, judgment or
decree applicable to or binding on the Purchaser.
(E) No Consents or Approvals. The Purchaser is not required to
submit any notice, report or other filing with any governmental or
regulatory authority or instrumentality, and no waiver, consent,
approval or authorization of any governmental or regulatory authority
or any other person is required to be obtained or made by the
Purchaser, in connection with the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated
hereby, other than (i) the filing of the Registration Statement with
the Securities and Exchange Commission (the "SEC"), (ii) the
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filing of a certificate of merger for EQK Realty Investors I ("EQK")
and ART Newco, L.L.C. with the Secretary of State of the Commonwealth
of Massachusetts, (iii) the filing of a Schedule 13D with the SEC, and
(iv) any such other filings, consents or approvals that may be
necessary or required solely by reason of EQK's (as opposed to any
other third party's) participation in the transactions contemplated
hereby.
(F) Purchase Price. The Purchaser has authorized the issuance
of the number of shares of Preferred Stock necessary to consummate the
transactions contemplated by this Agreement. The Preferred Stock will,
upon consummation of the transactions contemplated by this Agreement,
be owned of record and beneficially by the Selling Shareholder free and
clear of any Encumbrances. There are no Encumbrances whatsoever, fixed
or contingent, that directly or indirectly, (i) provide for the sale,
pledge or other transfer or disposition of any of the Preferred Stock,
any interest therein or any rights with respect thereto, or relate to
the voting, disposition, exercise, conversion or control of the
Preferred Stock or (ii) obligate the Purchaser to grant, offer or enter
into any of the foregoing. Except as provided for herein and except for
any restrictions on transfer under applicable state and federal
securities laws, upon the Closing, the Selling Shareholder will acquire
valid and indefeasible title to the Preferred Stock free and clear of
any Encumbrance.
(G) Commission. Purchaser hereby indemnifies the Selling
Shareholder against any liability for a broker's commission, finder's
fee or other fee of any description incurred by the Purchaser with
respect to any transaction contemplated by this Agreement.
(H) Disclosure. No representation or warranty by the Purchaser
in this Agreement nor any certificate, schedule, statement, document or
instrument furnished or to be furnished to the Selling Shareholder
pursuant hereto, or in connection with the negotiation, execution or
performance of this Agreement, contains or will contain any untrue
statement of a material fact or, subject to any applicable
qualifications contained in such certificate, schedule, statement,
document or instrument, omits or will omit to state a material fact
necessary in order to make any statement herein or therein not
misleading in light of the circumstances under which they were made.
(I) Registration and Listing of the Preferred Stock. Following
the execution of this Agreement by the Selling Shareholder, Purchaser
will promptly take such actions as are necessary and within its control
to cause the Preferred Stock to become (i) registered under the
Securities Act pursuant to the Registration Statement, and (ii) listed,
and thereafter to continue to be listed, for trading on the New York
Stock Exchange or another national securities exchange, including,
without limitation, the Nasdaq Stock Market (such securities exchange,
the "Securities Exchange").
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ARTICLE III
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 3.1. TRANSFER TAXES. The Purchaser will pay all transfer,
federal, state or local taxes, if any, payable in connection with the transfer
of the Shares to Purchaser pursuant to this Agreement. In addition, the
Purchaser will pay all transfer taxes, if any, payable in connection with the
transfer or issuance of the Preferred Stock to Selling Shareholder pursuant to
this Agreement. The Selling Shareholder will pay all federal, state and local
income taxes, if any, payable in connection with gains associated with the
transfer or issuance of the Preferred Stock to Selling Shareholder pursuant to
this Agreement.
Section 3.2. CONFIDENTIALITY. The Purchaser and the Selling
Shareholder, and each of their respective officers, directors, representatives
and agents ("Representatives"), if any, agree to treat all information exchanged
by the parties hereto and their Representatives in connection with the
transactions contemplated herein, as confidential, including all notes,
analyses, compilations, studies or other documents, whether prepared by any
party hereto or others, which contain or otherwise reflect such information
(collectively, the "Confidential Information"). Except as required by law, the
Purchaser and the Selling Shareholder agree that they shall not disclose any
Confidential Information to third parties without the express written consent of
each other party hereto. The obligations of the Purchaser and the Selling
Shareholder hereunder will continue in full force and effect until Closing, and,
if this Agreement is terminated, will remain in full force and effect. The
Purchaser and the Selling Shareholder further agree that they (and their
Representatives) will not use any of the Confidential Information for any reason
or purpose other than to evaluate the transactions contemplated by this
Agreement.
The term "Confidential Information" does not include
information which (i) is or becomes generally available to the public other than
as a result of disclosure in breach of this Section 3.2 by any party hereto or
any Representative, (ii) was available to any party hereto on a non-
confidential basis prior to its disclosure to such party by any other party
hereto or their respective Representatives, or (iii) was or is disclosed to any
party hereto on a non-confidential basis from a source other than any other
party hereto or their respective Representatives, provided that such source was
or is, to the best of such party's knowledge, at the time of such disclosure,
not prohibited from transmitting the information to such party or such party's
Representatives by a contractual, legal or fiduciary obligation.
Section 3.3. REGULATORY AND OTHER AUTHORIZATIONS. Each of the parties
hereto will use its commercially reasonable efforts to obtain the
authorizations, consents, orders and approvals of governmental authorities that
may be or become necessary for the performance of his, her or its obligations
pursuant to this Agreement and the consummation of the transactions contemplated
hereby and will cooperate fully with each other in promptly seeking to obtain
such authorizations, consents, orders and approvals as may be necessary for the
performance of their respective obligations pursuant to this Agreement. The
parties hereto will not take any action that will have the effect of delaying,
impairing or impeding the receipt of any required approvals and will use
reasonable efforts to secure such approvals as promptly as possible.
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Section 3.4. SATISFACTION OF CONDITIONS. Each of the parties hereto
will use his, her or its reasonable efforts to satisfy at or prior to the
Closing Date each of the conditions to the other party's obligations set forth
in Article IV hereof.
Section 3.5. FURTHER ASSURANCES. At any time and from time to time
after the Closing, the parties agree to cooperate with each other, to execute
and deliver such other documents, instruments of transfer or assignment, files,
books and records and do all such further acts and things as may be reasonably
required to carry out the transactions contemplated by this Agreement.
Section 3.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and covenants made pursuant to or in connection with
this Agreement shall survive (A) the execution and delivery of this Agreement,
(B) any investigation at any time made by or on behalf of the parties hereto and
(C) for a period of one year thereafter, the Closing. If the Closing does not
take place, each representation, warranty and covenant shall terminate upon the
termination of this Agreement pursuant to Section 5.1.
Section 3.7. COVENANT NOT TO PURCHASE ADDITIONAL COMMON STOCK. In
consideration for Purchaser's purchase of Shares from Selling Shareholder,
Selling Shareholder hereby covenants that it will not purchase or otherwise
acquire any additional shares of Common Stock for a period commencing on the
date hereof and ending 42 months after the Closing Date.
Section 3.8. RESTRICTIONS ON TRANSFER OF PREFERRED STOCK. Selling
Shareholder understands that the Preferred Stock shall be subject to transfer
restrictions under Rule 144 ("Rule 144") promulgated under the Securities Act
and the applicable regulations promulgated by the SEC, and that the Preferred
Stock may only be sold (i) pursuant to the Registration Statement or another
registration statement with respect to the Preferred Stock which has been
declared effective by the SEC, (ii) in transactions which comply with the
provisions of Rule 144, or (iii) in a transaction that is exempt from
registration under the Securities Act. Purchaser hereby covenants to maintain
the effectiveness of the Registration Statement for a period of two years after
the Closing Date and to provide the Selling Shareholder or the Securities
Exchange, as applicable, upon the request of the Selling Shareholder, with a
resale prospectus relating to the Preferred Stock during such two-year period.
Purchaser further covenants that, during such two year period, Purchaser shall
use all reasonable efforts to make all filings of the nature specified in
paragraph (c)(1) of Rule 144 of the Securities Act. On or before the Closing
Date, Purchaser shall deliver a copy of the prospectus constituting part of the
Registration Statement to the applicable Securities Exchange upon which the
Preferred Stock is to be listed.
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ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1. CONDITIONS TO OBLIGATION OF THE SELLING SHAREHOLDER TO
CLOSE. The obligation of the Selling Shareholder to consummate the Closing is
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions, unless waived in writing by the Selling Shareholder:
(A) Regulatory and Other Authorizations. All authorizations,
consents, approvals and orders of, and notices to, governmental
authorities or instrumentalities necessary for the performance by the
Selling Shareholder of this Agreement and the consummation by the
Selling Shareholder of the sale of the Shares and the other
transactions contemplated by this Agreement shall have been obtained or
made, and there shall be in effect no preliminary or permanent
injunction or other order of a court or governmental or regulatory
agency of competent jurisdiction directing that the transactions
contemplated herein, or any of them, not be consummated (collectively,
an "Order").
(B) Representations and Warranties. The representations and
warranties of the Purchaser contained in this Agreement shall be true
and correct in all material respects at the date hereof, and at and as
of the Closing Date, as if they were made at and as of the Closing
Date, except for any representations and warranties made or given as of
a specific date, which shall be true and correct in all material
respects as of such date; and the Purchaser shall have performed or
complied in all material respects with all obligations, agreements and
covenants required by this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(C) Certificate. The Purchaser shall have delivered to the
Selling Shareholder a certificate of the Purchaser, dated the Closing
Date, to the effect that the condition specified in paragraph (B) of
this Section 4.1 has been satisfied.
(D) Transfer of Preferred Stock. All legal instruments and
other documents required for the Purchaser to effect the transfer of
the Preferred Stock to the Selling Shareholder free and clear of all
liens and encumbrances shall have been duly executed.
(E) Approval of Merger Agreement. The Board of Trustees and
shareholders of EQK shall have approved the Amended and Restated
Agreement and Plan of Merger dated as of August 25, 1998 by and among
the Purchaser, ART Newco, L.L.C. ("ART Newco"), Basic Capital
Management, Inc., EQK and Lend Lease Portfolio Management, Inc. (the
"Merger Agreement") and the transactions contemplated thereby,
including without limitation the amendment and restatement of EQK's
Amended and Restated Declaration of Trust and the execution of the new
advisory agreement, identified in the Merger Agreement, between EQK and
Basic Capital Management, Inc.
(F) Effectiveness of Registration Statements. The Registration
Statement shall have been declared effective by the SEC and no stop
order suspending effectiveness of the
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Registration Statement shall have been issued by the SEC on or prior to
the Closing Date. In addition, the Purchaser's registration statement
on Form S-4 (the "Form S-4 Registration Statement") with respect to the
issuance of Preferred Shares in connection with the Merger Agreement
shall have been declared effective by the SEC and no stop order
suspending the effectiveness of the Form S-4 Registration Statement
shall have been issued by the SEC on or prior to the Closing Date.
(G) Sale of Harrisburg East Mall and Acquisition of Oak Tree
Village. EQK shall have (i) sold the real property known as the
"Harrisburg East Mall," paid off the related mortgages thereon and
distributed the net proceeds of such sale to the EQK shareholders,
including the Selling Shareholder, and (ii) acquired from the
Purchaser, upon terms and conditions mutually acceptable to EQK and the
Purchaser, that certain retail shopping center known as the "Oak Tree
Village" and located in Lubbock, Texas.
Section 4.2. CONDITIONS TO OBLIGATION OF THE PURCHASER TO CLOSE. The
obligation of the Purchaser to consummate the Closing is subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
unless waived in writing by the Purchaser:
(A) Regulatory and Other Authorizations. All authorizations,
consents, approvals and orders of, and notices to, governmental
authorities or instrumentalities necessary for the performance by the
Purchaser of this Agreement and the consummation by the Purchaser of
the purchase of the Shares and the other transactions contemplated
hereunder shall have been obtained or made and there shall be no Order
in effect.
(B) Representations and Warranties. The representations and
warranties of the Selling Shareholder contained in this Agreement shall
be true and correct in all material respects at the date hereof, and at
and as of the Closing Date, as if they were made at and as of the
Closing Date, except for any representations and warranties made or
given as of a specified date, which shall be true and correct in all
material respects as of such date.
(C) Certificate. The Selling Shareholder shall have delivered
to the Purchaser a certificate of the Selling Shareholder, dated the
Closing Date, to the effect that the condition specified in paragraph
(B) of this Section 4.2 has been satisfied.
(D) Transfer of Shares. All legal instruments and other
documents required for the Selling Shareholder to effect the transfer
of the Shares owned by the Selling Shareholder to the Purchaser free
and clear of all liens and encumbrances shall have been duly executed.
(E) Approval of Merger Agreement. The Board of Trustees and
shareholders of EQK shall have approved the Merger Agreement and the
transactions contemplated thereby (collectively, the "Merger-Related
Transactions"), including, without limitation, the amendment and
restatement of EQK's Amended and Restated Declaration of Trust, the
execution of a new advisory agreement between EQK and Basic Capital
Management, Inc., and the election of the new Board of Trustees. The
Selling Shareholder hereby agrees to vote in favor of the
Merger-Related Transactions.
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(F) Effectiveness of Registration Statements. The Registration
Statement and the Form S-4 Registration Statement shall each have been
declared effective by the SEC and no stop order suspending
effectiveness of the Registration Statement or the Form S-4
Registration Statement shall have been issued by the SEC on or prior to
the Closing Date.
(G) Sale of Harrisburg East Mall and Acquisition of Oak Tree
Village. EQK shall have (i) sold the real property known as the
"Harrisburg East Mall," paid off the related mortgages thereon and
distributed the net proceeds of such sale to the EQK shareholders,
including the Selling Shareholder, and (ii) acquired from the
Purchaser, upon terms and conditions mutually acceptable to EQK and the
Purchaser, that certain retail shopping center known as the "Oak Tree
Village" and located in Lubbock, Texas.
ARTICLE V
TERMINATION
Section 5.1. TERMINATION. Notwithstanding anything in this Agreement to
the contrary, this Agreement may be terminated only (A) by the mutual written
consent of the Purchaser and the Selling Shareholder, (B) by either the
Purchaser, on the one hand, or the Selling Shareholder, on the other hand, at
any time, in the event of a breach by the other party which breach remains
uncured for ten (10) calendar days after notice in writing of such breach is
delivered to the breaching party, or (C) by either the Purchaser, on the one
hand, or the Selling Shareholder, on the other hand, by written notice to the
other if the Closing has not occurred prior to December 15, 1998, unless the
Closing has not occurred solely by reason of the failure of the party seeking to
terminate this Agreement to perform or observe any of the covenants or
agreements hereof to be performed by such party prior thereto.
Section 5.2. EFFECT OF TERMINATION. In the event of the termination of
this Agreement pursuant to Section 5.1, this Agreement, other than with respect
to the parties' respective indemnification obligations under Sections 2.1(F) and
2.2(G), the parties' obligations under Section 3.2, and the parties' obligations
under Sections 7.1 and 7.2, will thereafter become void and have no effect, and
there will be no liability on the part of any party or its stockholders or
directors or officers in respect thereof, except that nothing herein will
relieve any party from liability for any breach of this Agreement occurring
prior to such termination.
ARTICLE VI
INDEMNIFICATION
Section 6.1. INDEMNIFICATION BY THE SELLING SHAREHOLDER. Subject to the
terms of this Article VI, the Selling Shareholder shall indemnify and hold
harmless the Purchaser and each of its officers, directors, employees and
controlling persons from any liability, damage, loss, penalty, cost or expense,
including reasonable attorneys' fees and costs of investigating and defending
lawsuits, complaints, actions or other pending or threatened litigation, after
receiving full credit for the amount of any payments actually received as a
result of insurance coverage ("Costs") arising from or attributable to any
breach of or inaccuracy in any representation, warranty, covenant or agreement
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made by the Selling Shareholder herein; provided, however, the Purchaser shall
give the Selling Shareholder written notice as soon as practicable after the
discovery thereof of any suspected breach of or inaccuracy in any
representation, warranty, covenant or agreement made by the Selling Shareholder,
and if the Selling Shareholder is able to cure such breach or inaccuracy within
ten days after receipt of such written notice, without any Costs being incurred
by the Purchaser, the indemnification provisions set forth in this Section 6.1
shall not apply with respect to such breach or inaccuracy.
Section 6.2. THE SELLING SHAREHOLDER'S LIMITATION ON LIABILITY.
Notwithstanding any other provision in this Agreement, the obligation of the
Selling Shareholder to indemnify the Purchaser and its officers, directors,
employees and controlling persons pursuant to Section 6.1 against any Costs
sustained by reason of any claim made under Section 6.1 shall be limited to
claims as to which the Purchaser has given to the Selling Shareholder written
notice thereof; provided, however, that any delay or failure to notify the
Selling Shareholder of any claim shall not relieve the Selling Shareholder from
any liability except to the extent that the Selling Shareholder demonstrates
that the defense of such action is materially prejudiced by such delay or
failure to notify.
Section 6.3. INDEMNIFICATION BY THE PURCHASER. The Purchaser shall
indemnify and hold harmless the Selling Shareholder and each of its officers,
directors, employees and controlling persons, if any, from any Costs arising
from or attributable to any breach of or inaccuracy in any representation,
warranty, covenant or agreement made by the Purchaser herein; provided, however,
the Selling Shareholder shall give the Purchaser written notice as soon as
practicable after the discovery thereof of any suspected breach of or inaccuracy
in any representation, warranty, covenant or agreement made by the Purchaser,
and if the Purchaser is able to cure such breach or inaccuracy within ten days
after receipt of such written notice, without any Costs being incurred by the
Selling Shareholder, the indemnification provisions set forth in this Section
6.3 shall not apply with respect to such breach or inaccuracy.
Section 6.4. THE PURCHASER'S LIMITATION ON LIABILITY. Notwithstanding
any other provision in this Agreement, the obligation of the Purchaser to
indemnify the Selling Shareholder pursuant to Section 6.3 against any Costs
sustained by reason of any claim made under Section 6.3 shall be limited to
claims as to which the Selling Shareholder has given to the Purchaser written
notice thereof; provided, however, that any delay or failure to notify the
Purchaser of any claim shall not relieve the Purchaser from any liability except
to the extent that the Purchaser demonstrates that the defense of such action is
materially prejudiced by such delay or failure to notify.
Section 6.5. PROCEDURES FOR THIRD PARTY CLAIMS. Within twenty (20) days
after the assertion by any third party of any claim against any indemnitee that,
in the judgment of such indemnitee, may result in the incurrence by such
indemnitee of Costs for which such indemnitee would be entitled to
indemnification pursuant to this Agreement, such indemnitee shall deliver to the
indemnitor a written notice (the "Indemnity Notice") describing in reasonable
detail such claim; provided, however, that any delay or failure to notify the
indemnitor of any claim shall not relieve it from any liability except to the
extent that the indemnitor demonstrates that the defense of such action is
materially prejudiced by such delay or failure to notify. In the case of third
party claims, the indemnitor shall, within ten (10) days of receipt of notice of
such claim, notify the indemnitee of its intention to assume the defense of such
claim. If the indemnitor shall assume the defense of
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the claim, the indemnitor shall have the right and obligation (A) to conduct any
proceedings or negotiations in connection therewith and necessary or appropriate
to defend the indemnitee, (B) to take all other required steps or proceedings to
settle or defend any such claims, and (C) to employ counsel to contest any such
claim or liability in the name of the indemnitee or otherwise. If defendants in
any action include the indemnitee and the indemnitor, and the indemnitee shall
have been advised by its counsel in writing that there may be legal defenses
available to the indemnitee which are different from or in addition to those
available to the indemnitor, the indemnitee shall have the right to employ its
own counsel in such action, and, in such event, the fees and expenses of such
counsel shall be borne by the indemnitor. If the indemnitor shall not assume the
defense of any such claim or litigation resulting therefrom, the indemnitee may
defend against any such claim or litigation in such manner as it may deem
appropriate and the indemnitee may settle such claim or litigation on such terms
as it may deem appropriate; provided, however, that any such settlement shall be
subject to the prior consent of the indemnitor, which consent shall not be
unreasonably withheld. Within ten (10) days after final determination with
respect to a third party claim, the indemnitor shall pay to the indemnitee the
Costs incurred by indemnitee in respect of which indemnity may be sought
pursuant to this Section 6.5. In the case of a non-third party claim, payment of
damages incurred by the indemnitee shall be made by the indemnitor within ten
(10) days after receipt of the Indemnity Notice by indemnitor.
A final determination of a disputed claim as to damages shall be (A) a
judgment of any court determining the validity of a disputed claim, if no appeal
is pending from such judgment or if the time to appeal therefrom has elapsed,
(B) an award of any arbitration determining the validity of such disputed claim,
if there is not pending any motion to set aside such award or if the time within
which to move to set such award aside has elapsed, (C) a written agreement as to
the termination of the dispute with respect to such claim signed by all of the
parties thereto or their attorneys, (D) a written acknowledgment of the
indemnitor that he, she or it no longer disputes the validity of such claim, or
(E) such other evidence of final determination of a disputed claim as shall be
acceptable to the parties.
ARTICLE VII
MISCELLANEOUS
Section 7.1. EXPENSES. Unless otherwise indicated, the parties will
bear their own respective expenses (including, but not limited to, all
compensation and expenses of counsel, financial advisers, finders, brokers,
consultants, actuaries and independent accountants) incurred in connection with
the negotiation, preparation and execution of this Agreement and consummation of
the transactions contemplated hereby.
Section 7.2. PUBLIC DISCLOSURE. Each of the parties to this Agreement
hereby agrees with each other party that, except as may be required to comply
with the requirements of applicable law, no press release or similar public
announcement or communication will be made or caused to be made concerning the
execution or performance of this Agreement unless specifically approved in
advance by all parties.
12
<PAGE> 14
Section 7.3. GOVERNING LAW. This Agreement will be deemed to be made in
and in all respects will be interpreted, construed and governed by and in
accordance with the internal, substantive law of the State of Georgia without
reference to principles of conflicts of laws.
Section 7.4. NOTICES. Any notices and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given when delivered to the appropriate party at the following
addresses:
(i) if to the Purchaser:
American Realty Trust, Inc.
c/o Basic Capital Management, Inc.
10670 North Central Expressway, Suite 400
Dallas, Texas 75231
Attention: Robert A. Waldman
(ii) if to the Selling Shareholder:
Summit Venture, L.P.
P.O. Box 47638
Phoenix, Arizona 85068
Attention: Barry Zemel
or at such other place or places or to such other persons as shall be designated
in writing by the parties to this Agreement in the manner herein provided.
Section 7.5. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and will not in any way affect
interpretation of this Agreement.
Section 7.6. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which, when taken together, shall constitute one and
the same agreement. Signatures on this Agreement may be communicated by
facsimile transmission and shall be binding upon the parties transmitting the
same by facsimile transmission. Counterparts with original signatures shall be
provided to the other party within five (5) days of the applicable facsimile
transmission, provided, however, that the failure to provide the original
counterpart shall have no effect on the validity or the binding nature of the
Agreement.
Section 7.7. ASSIGNMENT. Except as provided in the following sentence,
this Agreement may not be assigned, by operation of law or otherwise. The
Purchaser may assign its rights under this Agreement in whole or in part to a
wholly owned subsidiary of the Purchaser that will take title to the Shares and
will assume all obligations of the Purchaser hereunder; provided, however, in
such event, the Purchaser will remain fully liable for the fulfillment of all
such obligations. This Agreement will be binding upon and inure to the benefit
of successors and assigns of the parties hereto.
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<PAGE> 15
Section 7.8. MISCELLANEOUS. This Agreement (A) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties, with respect to the subject matter hereof; and (B)
is not intended to confer upon any other persons any rights or remedies
hereunder. If any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section 7.9. SPECIFIC PERFORMANCE. The parties hereto acknowledge and
agree that the breach of the provisions of this Agreement by the Selling
Shareholder or the Purchaser could not be adequately compensated with monetary
damages, and the parties hereto agree, accordingly, that injunctive relief and
specific performance shall be appropriate remedies to enforce the provisions of
this Agreement and waive any claim or defense that there is an adequate remedy
at law for such breach; provided, however, that nothing herein shall limit the
remedies available and all remedies herein are in addition to any remedies
available at law or otherwise.
Section 7.10. AMENDMENTS AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
each party to this Agreement. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
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<PAGE> 16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SELLING SHAREHOLDER:
SUMMIT VENTURE, L.P.
By /s/ BARRY ZEMEL
-----------------------------------------
Barry Zemel, General Partner
PURCHASER:
AMERICAN REALTY TRUST, INC.
By /s/ A. CAL ROSSI, JR.
-----------------------------------------
Name: A. Cal Rossi, Jr.
--------------------------------------
Title: Vice President / ART
-------------------------------------
<PAGE> 1
EXHIBIT 99.4
- --------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
BETWEEN
SUTTER OPPORTUNITY FUND, LLC
AS SELLING SHAREHOLDER
AND
AMERICAN REALTY TRUST, INC.,
AS PURCHASER
-------------------------
DATED AS OF AUGUST 26, 1998
-------------------------
-----------------------------------------------------
<PAGE> 2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into this
26th day of August, 1998, between Sutter Opportunity Fund, LLC (the "Selling
Shareholder") and American Realty Trust, Inc. (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Selling Shareholder owns 919,400 outstanding shares of
beneficial interest of EQK Realty Investors I ("EQK"), par value $0.01 per share
(the "Common Stock");
WHEREAS, the Selling Shareholder desires to sell to the Purchaser all
of the shares of Common Stock owned by such Selling Shareholder for the
consideration set forth herein; and
WHEREAS, the Purchaser desires to purchase from the Selling Shareholder
such shares of Common Stock on the terms and subject to the conditions set forth
herein; and
WHEREAS, immediately after the execution of this Agreement, the
Purchaser will file a Registration Statement on Form S-3 (the "Registration
Statement") for registration of 105,655 shares of its Preferred Stock (as
defined in Section 1.2) under the Securities Act of 1933, as amended (the
"Securities Act").
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and subject to and on the terms and conditions herein set forth, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
Section 1.1. PURCHASE AND SALE OF SHARES. On the Closing Date (as
defined in Section 1.3), pursuant to the terms and conditions of this Agreement,
the Selling Shareholder shall sell and transfer to the Purchaser, and the
Purchaser shall purchase and accept from the Selling Shareholder, 919,400 shares
of Common Stock (collectively, the "Shares") for the Purchase Price (as defined
in Section 1.2).
Section 1.2. PURCHASE PRICE. The aggregate purchase price payable by
the Purchaser to the Selling Shareholder for the Shares shall be $275,820.00
payable exclusively as 27,582 shares of Series F Cumulative Convertible
Preferred Stock, par value $2.00 per share, with a stated liquidation value of
$10.00 per share, of the Purchaser (such shares, the "Preferred Stock", and the
aggregate liquidation value of the Preferred Stock so delivered to the Selling
Shareholder, the "Purchase Price").
<PAGE> 3
Section 1.3. CLOSING. The closing of the purchase and sale of the
Shares contemplated hereby (the "Closing") will take place at the offices of
Andrews & Kurth L.L.P., in Dallas, Texas, at a mutually agreeable time,
following the satisfaction of each of the conditions described in Sections 4.1
and 4.2 hereof, or on such other day as may be mutually agreed upon in writing
by the Purchaser and the Selling Shareholder (the "Closing Date"). Prior to the
Closing Date, (i) the Selling Shareholder shall have delivered or caused to be
delivered to The Depository Trust Company ("DTC") or a participant thereof (a
"Participant") the certificate or certificates representing the Shares, along
with a duly executed stock power attached thereto and such other assignments or
instruments of conveyance and transfer, in form and substance reasonably
satisfactory to the Purchaser and its counsel, as shall be effective to vest in
the Purchaser all of the Selling Shareholder's right, title and interest in and
to the Shares, and (ii) the Purchaser shall have delivered or caused to be
delivered to DTC or a Participant the certificate or certificates representing
the Preferred Stock, registered in the name of "CEDE & CO.", as DTC's nominee,
along with an irrevocable instruction letter to DTC instructing DTC to release
the Preferred Stock to the Selling Shareholder upon delivery and release by the
Selling Shareholders of the Shares to Purchaser. Notwithstanding the foregoing,
the procedures for delivery of the Shares and the Preferred Stock set forth
above may be varied, if necessary, in order to comply with the standard
practices and procedures of DTC.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES BY THE SELLING
SHAREHOLDER. The Selling Shareholder hereby covenants with, represents and
warrants to the Purchaser as follows:
(A) Shares. The Shares are now, and on the Closing Date
will be, owned of record and beneficially by the Selling Shareholder
free and clear of any security interest, pledge, option, lien, claim,
commitment, proxy, equity, right, restriction on transfer or
encumbrance of any nature whatsoever (collectively, "Encumbrances").
The Shares constitute all of the Common Stock owned by the Selling
Shareholder. There are no Encumbrances whatsoever, fixed or contingent,
that directly or indirectly, (i) provide for the sale, pledge or other
transfer or disposition of any of the Shares held by the Selling
Shareholder, any interest therein or any rights with respect thereto,
or relate to the voting, disposition, exercise, conversion or control
of the Shares or (ii) obligate the Selling Shareholder to grant, offer
or enter into any of the foregoing. Except as provided for herein and
except for any restrictions on transfer under applicable state and
federal securities laws, upon the Closing, the Purchaser will acquire
valid and indefeasible title to the Shares free and clear of any
Encumbrance.
(B) Non-Contravention. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by the Selling Shareholder will not result in a
violation or breach of or constitute a default under any term or
provision of the Selling Shareholder's organizational documents.
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<PAGE> 4
(C) No Conflicts. The execution and delivery of this
Agreement by the Selling Shareholder, and the consummation of the
transactions contemplated hereby, will not conflict with or violate any
agreement, law, rule, regulation, ordinance, order, writ, injunction,
judgment or decree applicable to or binding on the Selling Shareholder.
(D) Organization, Qualification and Authority of the
Selling Shareholder. The Selling Shareholder is duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
formation. The Selling Shareholder has all requisite limited liability
company power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and otherwise perform
its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Selling Shareholder and constitutes a
legal, valid and binding agreement of the Selling Shareholder,
enforceable against the Selling Shareholder in accordance with its
terms, subject to bankruptcy, court or regulatory agency order and the
exercise of such equitable remedies as may be applicable or available
to the Selling Shareholder.
(E) No Consents or Approvals. Except such filings as may be
necessary under the Investment Company Act of 1940, as amended, and the
federal securities laws, the Selling Shareholder is not required to
submit any notice, report or other filing with any governmental or
regulatory authority or instrumentality, and no waiver, consent,
approval or authorization of any governmental or regulatory authority
or any other person is required to be obtained or made by the Selling
Shareholder, in connection with the execution, delivery or performance
of this Agreement or the consummation of the transactions contemplated
hereby.
(F) No Commission. The Selling Shareholder has not employed
any broker, agent, finder or advisor in connection with any transaction
contemplated by this Agreement. The Selling Shareholder hereby
indemnifies the Purchaser against any liability for a broker's
commission or agent or finder's fee of any description incurred by the
Selling Shareholder with respect to any transaction contemplated by
this Agreement.
(G) Litigation. As of the date hereof, no action, suit,
proceeding or governmental investigation is pending or, to the
knowledge of the Selling Shareholder, threatened that seeks to delay or
prevent the consummation of the transactions contemplated by this
Agreement.
(H) Disclosure. No representation or warranty by the
Selling Shareholder in this Agreement nor any certificate, schedule,
statement, document or instrument furnished or to be furnished to the
Purchaser pursuant hereto, or in connection with the execution or
performance of this Agreement, contains or will contain any untrue
statement of a material fact or, subject to any applicable
qualifications contained in such certificate, schedule, statement,
document or instrument, omits or will omit to state a material fact
necessary in order to make any statement herein or therein not
misleading, in light of the circumstances under which they were made.
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<PAGE> 5
(I) Solvency. The Selling Shareholder is not now insolvent,
nor will it be rendered insolvent by the consummation of the
transactions contemplated by this Agreement. As used in this Section
2.1(I), "insolvent" means, for the Selling Shareholder, that the sum of
the present fair saleable value of its assets does not and/or will not
exceed its debts and other probable liabilities, and the term "debts"
includes any legal liability, whether matured or unmatured, liquidated
or unliquidated, absolute, fixed or contingent, disputed or secured or
unsecured.
(J) Institutional Accredited Investor Status. The Selling
Shareholder is an institutional "accredited investor" within the
meaning of subparagraph (3) of Rule 501(a) under the Securities Act.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to, and agrees with, the Selling Shareholder
as follows:
(A) Organization and Authority of the Purchaser. The
Purchaser has been duly incorporated, is validly existing and is in
good standing under the laws of the State of Georgia, has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and otherwise carry out
its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Purchaser and constitutes a legal, valid
and binding agreement of the Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to bankruptcy, court or
regulatory agency order and the exercise of such equitable remedies as
may be applicable or available to the Purchaser.
(B) Litigation. As of the date hereof, no action, suit,
proceeding or governmental investigation is pending or, to the
knowledge of the Purchaser, threatened that seeks to delay or prevent
the consummation of the transactions contemplated by this Agreement.
(C) Non-Contravention. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by the Purchaser will not result in a violation or
breach of or constitute a default under any term or provision of the
articles of incorporation or bylaws of the Purchaser.
(D) No Conflicts. The execution and delivery of this
Agreement by the Purchaser, and the consummation of the transactions
contemplated hereby and thereby, will not conflict with or violate any
agreement, law, rule, regulation, ordinance, order, writ, injunction,
judgment or decree applicable to or binding on the Purchaser.
(E) No Consents or Approvals. The Purchaser is not required
to submit any notice, report or other filing with any governmental or
regulatory authority or instrumentality, and no waiver, consent,
approval or authorization of any governmental or regulatory authority
or any other person is required to be obtained or made by the
Purchaser, in connection with the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated
hereby, other than (i) the filing of the Registration Statement with
the Securities and Exchange Commission (the "SEC"), (ii) the
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<PAGE> 6
filing of a certificate of merger for EQK Realty Investors I ("EQK")
and ART Newco, L.L.C. with the Secretary of State of the Commonwealth
of Massachusetts, (iii) the filing of a Schedule 13D with the SEC, and
(iv) any such other filings, consents or approvals that may be
necessary or required solely by reason of EQK's (as opposed to any
other third party's) participation in the transactions contemplated
hereby.
(F) Purchase Price. The Purchaser has authorized the
issuance of the number of shares of Preferred Stock necessary to
consummate the transactions contemplated by this Agreement. The
Preferred Stock will, upon consummation of the transactions
contemplated by this Agreement, be owned of record and beneficially by
the Selling Shareholder free and clear of any Encumbrances. There are
no Encumbrances whatsoever, fixed or contingent, that directly or
indirectly, (i) provide for the sale, pledge or other transfer or
disposition of any of the Preferred Stock, any interest therein or any
rights with respect thereto, or relate to the voting, disposition,
exercise, conversion or control of the Preferred Stock or (ii) obligate
the Purchaser to grant, offer or enter into any of the foregoing.
Except as provided for herein and except for any restrictions on
transfer under applicable state and federal securities laws, upon the
Closing, the Selling Shareholder will acquire valid and indefeasible
title to the Preferred Stock free and clear of any Encumbrance.
(G) Commission. Purchaser hereby indemnifies the Selling
Shareholder against any liability for a broker's commission, finder's
fee or other fee of any description incurred by the Purchaser with
respect to any transaction contemplated by this Agreement.
(H) Disclosure. No representation or warranty by the
Purchaser in this Agreement nor any certificate, schedule, statement,
document or instrument furnished or to be furnished to the Selling
Shareholder pursuant hereto, or in connection with the negotiation,
execution or performance of this Agreement, contains or will contain
any untrue statement of a material fact or, subject to any applicable
qualifications contained in such certificate, schedule, statement,
document or instrument, omits or will omit to state a material fact
necessary in order to make any statement herein or therein not
misleading in light of the circumstances under which they were made.
(I) Registration and Listing of the Preferred Stock.
Following the execution of this Agreement by the Selling Shareholder,
Purchaser will promptly take such actions as are necessary and within
its control to cause the Preferred Stock to become (i) registered under
the Securities Act pursuant to the Registration Statement, and (ii)
listed, and thereafter to continue to be listed, for trading on the New
York Stock Exchange or another national securities exchange, including,
without limitation, the Nasdaq Stock Market (such securities exchange,
the "Securities Exchange").
5
<PAGE> 7
ARTICLE III
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 3.1. TRANSFER TAXES. The Purchaser will pay all transfer,
federal, state or local taxes, if any, payable in connection with the transfer
of the Shares to Purchaser pursuant to this Agreement. In addition, the
Purchaser will pay all transfer taxes, if any, payable in connection with the
transfer or issuance of the Preferred Stock to Selling Shareholder pursuant to
this Agreement. The Selling Shareholder will pay all federal, state and local
income taxes, if any, payable in connection with gains associated with the
transfer or issuance of the Preferred Stock to Selling Shareholder pursuant to
this Agreement.
Section 3.2. CONFIDENTIALITY. The Purchaser and the Selling
Shareholder, and each of their respective officers, directors, representatives
and agents ("Representatives"), if any, agree to treat all information exchanged
by the parties hereto and their Representatives in connection with the
transactions contemplated herein, as confidential, including all notes,
analyses, compilations, studies or other documents, whether prepared by any
party hereto or others, which contain or otherwise reflect such information
(collectively, the "Confidential Information"). Except as required by law, the
Purchaser and the Selling Shareholder agree that they shall not disclose any
Confidential Information to third parties without the express written consent of
each other party hereto. The obligations of the Purchaser and the Selling
Shareholder hereunder will continue in full force and effect until Closing, and,
if this Agreement is terminated, will remain in full force and effect. The
Purchaser and the Selling Shareholder further agree that they (and their
Representatives) will not use any of the Confidential Information for any reason
or purpose other than to evaluate the transactions contemplated by this
Agreement.
The term "Confidential Information" does not include information
which (i) is or becomes generally available to the public other than as a result
of disclosure in breach of this Section 3.2 by any party hereto or any
Representative, (ii) was available to any party hereto on a non-confidential
basis prior to its disclosure to such party by any other party hereto or their
respective Representatives, or (iii) was or is disclosed to any party hereto on
a non-confidential basis from a source other than any other party hereto or
their respective Representatives, provided that such source was or is, to the
best of such party's knowledge, at the time of such disclosure, not prohibited
from transmitting the information to such party or such party's Representatives
by a contractual, legal or fiduciary obligation.
Section 3.3. REGULATORY AND OTHER AUTHORIZATIONS. Each of the
parties hereto will use its commercially reasonable efforts to obtain the
authorizations, consents, orders and approvals of governmental authorities that
may be or become necessary for the performance of his, her or its obligations
pursuant to this Agreement and the consummation of the transactions contemplated
hereby and will cooperate fully with each other in promptly seeking to obtain
such authorizations, consents, orders and approvals as may be necessary for the
performance of their respective obligations pursuant to this Agreement. The
parties hereto will not take any action that will have the effect of delaying,
impairing or impeding the receipt of any required approvals and will use
reasonable efforts to secure such approvals as promptly as possible.
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<PAGE> 8
Section 3.4. SATISFACTION OF CONDITIONS. Each of the parties hereto
will use his, her or its reasonable efforts to satisfy at or prior to the
Closing Date each of the conditions to the other party's obligations set forth
in Article IV hereof.
Section 3.5. FURTHER ASSURANCES. At any time and from time to time
after the Closing, the parties agree to cooperate with each other, to execute
and deliver such other documents, instruments of transfer or assignment, files,
books and records and do all such further acts and things as may be reasonably
required to carry out the transactions contemplated by this Agreement.
Section 3.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties and covenants made pursuant to or in connection with
this Agreement shall survive (A) the execution and delivery of this Agreement,
(B) any investigation at any time made by or on behalf of the parties hereto and
(C) for a period of one year thereafter, the Closing. If the Closing does not
take place, each representation, warranty and covenant shall terminate upon the
termination of this Agreement pursuant to Section 5.1.
Section 3.7. COVENANT NOT TO PURCHASE ADDITIONAL COMMON STOCK. In
consideration for Purchaser's purchase of Shares from Selling Shareholder,
Selling Shareholder hereby covenants that it will not purchase or otherwise
acquire any additional shares of Common Stock for a period commencing on the
date hereof and ending 42 months after the Closing Date.
Section 3.8. RESTRICTIONS ON TRANSFER OF PREFERRED STOCK. Selling
Shareholder understands that the Preferred Stock shall be subject to transfer
restrictions under Rule 144 ("Rule 144") promulgated under the Securities Act
and the applicable regulations promulgated by the SEC, and that the Preferred
Stock may only be sold (i) pursuant to the Registration Statement or another
registration statement with respect to the Preferred Stock which has been
declared effective by the SEC, (ii) in transactions which comply with the
provisions of Rule 144, or (iii) in a transaction that is exempt from
registration under the Securities Act. Purchaser hereby covenants to maintain
the effectiveness of the Registration Statement for a period of two years after
the Closing Date and to provide the Selling Shareholder or the Securities
Exchange, as applicable, upon the request of the Selling Shareholder, with a
resale prospectus relating to the Preferred Stock during such two-year period.
Purchaser further covenants that, during such two year period, Purchaser shall
use all reasonable efforts to make all filings of the nature specified in
paragraph (c)(1) of Rule 144 of the Securities Act. On or before the Closing
Date, Purchaser shall deliver a copy of the prospectus constituting part of the
Registration Statement to the applicable Securities Exchange upon which the
Preferred Stock is to be listed.
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<PAGE> 9
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1. CONDITIONS TO OBLIGATION OF THE SELLING SHAREHOLDER TO
CLOSE. The obligation of the Selling Shareholder to consummate the Closing is
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions, unless waived in writing by the Selling Shareholder:
(A) Regulatory and Other Authorizations. All
authorizations, consents, approvals and orders of, and notices to,
governmental authorities or instrumentalities necessary for the
performance by the Selling Shareholder of this Agreement and the
consummation by the Selling Shareholder of the sale of the Shares and
the other transactions contemplated by this Agreement shall have been
obtained or made, and there shall be in effect no preliminary or
permanent injunction or other order of a court or governmental or
regulatory agency of competent jurisdiction directing that the
transactions contemplated herein, or any of them, not be consummated
(collectively, an "Order").
(B) Representations and Warranties. The representations and
warranties of the Purchaser contained in this Agreement shall be true
and correct in all material respects at the date hereof, and at and as
of the Closing Date, as if they were made at and as of the Closing
Date, except for any representations and warranties made or given as of
a specific date, which shall be true and correct in all material
respects as of such date; and the Purchaser shall have performed or
complied in all material respects with all obligations, agreements and
covenants required by this Agreement to be performed or complied with
by it on or prior to the Closing Date.
(C) Certificate. The Purchaser shall have delivered to the
Selling Shareholder a certificate of the Purchaser, dated the Closing
Date, to the effect that the condition specified in paragraph (B) of
this Section 4.1 has been satisfied.
(D) Transfer of Preferred Stock. All legal instruments and
other documents required for the Purchaser to effect the transfer of
the Preferred Stock to the Selling Shareholder free and clear of all
liens and encumbrances shall have been duly executed.
(E) Approval of Merger Agreement. The Board of Trustees and
shareholders of EQK shall have approved the Amended and Restated
Agreement and Plan of Merger dated as of August 25, 1998 by and among
the Purchaser, ART Newco, L.L.C. ("ART Newco"), Basic Capital
Management, Inc., EQK and Lend Lease Portfolio Management, Inc. (the
"Merger Agreement") and the transactions contemplated thereby,
including without limitation the amendment and restatement of EQK's
Amended and Restated Declaration of Trust and the execution of the new
advisory agreement, identified in the Merger Agreement, between EQK and
Basic Capital Management, Inc.
(F) Effectiveness of Registration Statements. The
Registration Statement shall have been declared effective by the SEC
and no stop order suspending effectiveness of the
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<PAGE> 10
Registration Statement shall have been issued by the SEC on or prior to
the Closing Date. In addition, the Purchaser's registration statement
on Form S-4 (the "Form S-4 Registration Statement") with respect to the
issuance of Preferred Shares in connection with the Merger Agreement
shall have been declared effective by the SEC and no stop order
suspending the effectiveness of the Form S-4 Registration Statement
shall have been issued by the SEC on or prior to the Closing Date.
(G) Sale of Harrisburg East Mall and Acquisition of Oak
Tree Village. EQK shall have (i) sold the real property known as the
"Harrisburg East Mall," paid off the related mortgages thereon and
distributed the net proceeds of such sale to the EQK shareholders,
including the Selling Shareholder, and (ii) acquired from the
Purchaser, upon terms and conditions mutually acceptable to EQK and the
Purchaser, that certain retail shopping center known as the "Oak Tree
Village" and located in Lubbock, Texas.
Section 4.2. CONDITIONS TO OBLIGATION OF THE PURCHASER TO CLOSE. The
obligation of the Purchaser to consummate the Closing is subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
unless waived in writing by the Purchaser:
(A) Regulatory and Other Authorizations. All
authorizations, consents, approvals and orders of, and notices to,
governmental authorities or instrumentalities necessary for the
performance by the Purchaser of this Agreement and the consummation by
the Purchaser of the purchase of the Shares and the other transactions
contemplated hereunder shall have been obtained or made and there shall
be no Order in effect.
(B) Representations and Warranties. The representations and
warranties of the Selling Shareholder contained in this Agreement shall
be true and correct in all material respects at the date hereof, and at
and as of the Closing Date, as if they were made at and as of the
Closing Date, except for any representations and warranties made or
given as of a specified date, which shall be true and correct in all
material respects as of such date.
(C) Certificate. The Selling Shareholder shall have
delivered to the Purchaser a certificate of the Selling Shareholder,
dated the Closing Date, to the effect that the condition specified in
paragraph (B) of this Section 4.2 has been satisfied.
(D) Transfer of Shares. All legal instruments and other
documents required for the Selling Shareholder to effect the transfer
of the Shares owned by the Selling Shareholder to the Purchaser free
and clear of all liens and encumbrances shall have been duly executed.
(E) Approval of Merger Agreement. The Board of Trustees and
shareholders of EQK shall have approved the Merger Agreement and the
transactions contemplated thereby (collectively, the "Merger-Related
Transactions"), including, without limitation, the amendment and
restatement of EQK's Amended and Restated Declaration of Trust, the
execution of a new advisory agreement between EQK and Basic Capital
Management, Inc., and the election of the new Board of Trustees. The
Selling Shareholder hereby agrees to vote in favor of the
Merger-Related Transactions.
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(F) Effectiveness of Registration Statements. The
Registration Statement and the Form S-4 Registration Statement shall
each have been declared effective by the SEC and no stop order
suspending effectiveness of the Registration Statement or the Form S-4
Registration Statement shall have been issued by the SEC on or prior to
the Closing Date.
(G) Sale of Harrisburg East Mall and Acquisition of Oak
Tree Village. EQK shall have (i) sold the real property known as the
"Harrisburg East Mall," paid off the related mortgages thereon and
distributed the net proceeds of such sale to the EQK shareholders,
including the Selling Shareholder, and (ii) acquired from the
Purchaser, upon terms and conditions mutually acceptable to EQK and the
Purchaser, that certain retail shopping center known as the "Oak Tree
Village" and located in Lubbock, Texas.
ARTICLE V
TERMINATION
Section 5.1. TERMINATION. Notwithstanding anything in this Agreement
to the contrary, this Agreement may be terminated only (A) by the mutual written
consent of the Purchaser and the Selling Shareholder, (B) by either the
Purchaser, on the one hand, or the Selling Shareholder, on the other hand, at
any time, in the event of a breach by the other party which breach remains
uncured for ten (10) calendar days after notice in writing of such breach is
delivered to the breaching party, or (C) by either the Purchaser, on the one
hand, or the Selling Shareholder, on the other hand, by written notice to the
other if the Closing has not occurred prior to December 15, 1998, unless the
Closing has not occurred solely by reason of the failure of the party seeking to
terminate this Agreement to perform or observe any of the covenants or
agreements hereof to be performed by such party prior thereto.
Section 5.2. EFFECT OF TERMINATION. In the event of the termination
of this Agreement pursuant to Section 5.1, this Agreement, other than with
respect to the parties' respective indemnification obligations under Sections
2.1(F) and 2.2(G), the parties' obligations under Section 3.2, and the parties'
obligations under Sections 7.1 and 7.2, will thereafter become void and have no
effect, and there will be no liability on the part of any party or its
stockholders or directors or officers in respect thereof, except that nothing
herein will relieve any party from liability for any breach of this Agreement
occurring prior to such termination.
ARTICLE VI
INDEMNIFICATION
Section 6.1. INDEMNIFICATION BY THE SELLING SHAREHOLDER. Subject to
the terms of this Article VI, the Selling Shareholder shall indemnify and hold
harmless the Purchaser and each of its officers, directors, employees and
controlling persons from any liability, damage, loss, penalty, cost or expense,
including reasonable attorneys' fees and costs of investigating and defending
lawsuits, complaints, actions or other pending or threatened litigation, after
receiving full credit for the amount of any payments actually received as a
result of insurance coverage ("Costs") arising from or attributable to any
breach of or inaccuracy in any representation, warranty, covenant or agreement
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made by the Selling Shareholder herein; provided, however, the Purchaser shall
give the Selling Shareholder written notice as soon as practicable after the
discovery thereof of any suspected breach of or inaccuracy in any
representation, warranty, covenant or agreement made by the Selling Shareholder,
and if the Selling Shareholder is able to cure such breach or inaccuracy within
ten days after receipt of such written notice, without any Costs being incurred
by the Purchaser, the indemnification provisions set forth in this Section 6.1
shall not apply with respect to such breach or inaccuracy.
Section 6.2. THE SELLING SHAREHOLDER'S LIMITATION ON LIABILITY.
Notwithstanding any other provision in this Agreement, the obligation of the
Selling Shareholder to indemnify the Purchaser and its officers, directors,
employees and controlling persons pursuant to Section 6.1 against any Costs
sustained by reason of any claim made under Section 6.1 shall be limited to
claims as to which the Purchaser has given to the Selling Shareholder written
notice thereof; provided, however, that any delay or failure to notify the
Selling Shareholder of any claim shall not relieve the Selling Shareholder from
any liability except to the extent that the Selling Shareholder demonstrates
that the defense of such action is materially prejudiced by such delay or
failure to notify.
Section 6.3. INDEMNIFICATION BY THE PURCHASER. The Purchaser shall
indemnify and hold harmless the Selling Shareholder and each of its officers,
directors, employees and controlling persons, if any, from any Costs arising
from or attributable to any breach of or inaccuracy in any representation,
warranty, covenant or agreement made by the Purchaser herein; provided, however,
the Selling Shareholder shall give the Purchaser written notice as soon as
practicable after the discovery thereof of any suspected breach of or inaccuracy
in any representation, warranty, covenant or agreement made by the Purchaser,
and if the Purchaser is able to cure such breach or inaccuracy within ten days
after receipt of such written notice, without any Costs being incurred by the
Selling Shareholder, the indemnification provisions set forth in this Section
6.3 shall not apply with respect to such breach or inaccuracy.
Section 6.4. THE PURCHASER'S LIMITATION ON LIABILITY.
Notwithstanding any other provision in this Agreement, the obligation of the
Purchaser to indemnify the Selling Shareholder pursuant to Section 6.3 against
any Costs sustained by reason of any claim made under Section 6.3 shall be
limited to claims as to which the Selling Shareholder has given to the Purchaser
written notice thereof; provided, however, that any delay or failure to notify
the Purchaser of any claim shall not relieve the Purchaser from any liability
except to the extent that the Purchaser demonstrates that the defense of such
action is materially prejudiced by such delay or failure to notify.
Section 6.5. PROCEDURES FOR THIRD PARTY CLAIMS. Within twenty (20)
days after the assertion by any third party of any claim against any indemnitee
that, in the judgment of such indemnitee, may result in the incurrence by such
indemnitee of Costs for which such indemnitee would be entitled to
indemnification pursuant to this Agreement, such indemnitee shall deliver to the
indemnitor a written notice (the "Indemnity Notice") describing in reasonable
detail such claim; provided, however, that any delay or failure to notify the
indemnitor of any claim shall not relieve it from any liability except to the
extent that the indemnitor demonstrates that the defense of such action is
materially prejudiced by such delay or failure to notify. In the case of third
party claims, the indemnitor shall, within ten (10) days of receipt of notice of
such claim, notify the indemnitee of its intention to assume the defense of such
claim. If the indemnitor shall assume the defense of
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the claim, the indemnitor shall have the right and obligation (A) to conduct any
proceedings or negotiations in connection therewith and necessary or appropriate
to defend the indemnitee, (B) to take all other required steps or proceedings to
settle or defend any such claims, and (C) to employ counsel to contest any such
claim or liability in the name of the indemnitee or otherwise. If defendants in
any action include the indemnitee and the indemnitor, and the indemnitee shall
have been advised by its counsel in writing that there may be legal defenses
available to the indemnitee which are different from or in addition to those
available to the indemnitor, the indemnitee shall have the right to employ its
own counsel in such action, and, in such event, the fees and expenses of such
counsel shall be borne by the indemnitor. If the indemnitor shall not assume the
defense of any such claim or litigation resulting therefrom, the indemnitee may
defend against any such claim or litigation in such manner as it may deem
appropriate and the indemnitee may settle such claim or litigation on such terms
as it may deem appropriate; provided, however, that any such settlement shall be
subject to the prior consent of the indemnitor, which consent shall not be
unreasonably withheld. Within ten (10) days after final determination with
respect to a third party claim, the indemnitor shall pay to the indemnitee the
Costs incurred by indemnitee in respect of which indemnity may be sought
pursuant to this Section 6.5. In the case of a non-third party claim, payment of
damages incurred by the indemnitee shall be made by the indemnitor within ten
(10) days after receipt of the Indemnity Notice by indemnitor.
A final determination of a disputed claim as to damages shall be (A) a
judgment of any court determining the validity of a disputed claim, if no appeal
is pending from such judgment or if the time to appeal therefrom has elapsed,
(B) an award of any arbitration determining the validity of such disputed claim,
if there is not pending any motion to set aside such award or if the time within
which to move to set such award aside has elapsed, (C) a written agreement as to
the termination of the dispute with respect to such claim signed by all of the
parties thereto or their attorneys, (D) a written acknowledgment of the
indemnitor that he, she or it no longer disputes the validity of such claim, or
(E) such other evidence of final determination of a disputed claim as shall be
acceptable to the parties.
ARTICLE VII
MISCELLANEOUS
Section 7.1. EXPENSES. Unless otherwise indicated, the parties will
bear their own respective expenses (including, but not limited to, all
compensation and expenses of counsel, financial advisers, finders, brokers,
consultants, actuaries and independent accountants) incurred in connection with
the negotiation, preparation and execution of this Agreement and consummation of
the transactions contemplated hereby.
Section 7.2. PUBLIC DISCLOSURE. Each of the parties to this
Agreement hereby agrees with each other party that, except as may be required to
comply with the requirements of applicable law, no press release or similar
public announcement or communication will be made or caused to be made
concerning the execution or performance of this Agreement unless specifically
approved in advance by all parties.
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Section 7.3. GOVERNING LAW. This Agreement will be deemed to be made
in and in all respects will be interpreted, construed and governed by and in
accordance with the internal, substantive law of the State of Georgia without
reference to principles of conflicts of laws.
Section 7.4. NOTICES. Any notices and other communications required
or permitted under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered to the appropriate party at the following
addresses:
(i) if to the Purchaser:
American Realty Trust, Inc.
c/o Basic Capital Management, Inc.
10670 North Central Expressway, Suite 400
Dallas, Texas 75231
Attention: Robert A. Waldman
(ii) if to the Selling Shareholder:
Sutter Opportunity Fund, LLC
595 Market Street, Suite 2100
San Francisco, California 94105
Attention: Robert E. Dixon
or at such other place or places or to such other persons as shall be designated
in writing by the parties to this Agreement in the manner herein provided.
Section 7.5. SECTION HEADINGS. The section headings contained in
this Agreement are for reference purposes only and will not in any way affect
interpretation of this Agreement.
Section 7.6. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original and all of which, when taken together, shall constitute one and
the same agreement. Signatures on this Agreement may be communicated by
facsimile transmission and shall be binding upon the parties transmitting the
same by facsimile transmission. Counterparts with original signatures shall be
provided to the other party within five (5) days of the applicable facsimile
transmission, provided, however, that the failure to provide the original
counterpart shall have no effect on the validity or the binding nature of the
Agreement.
Section 7.7. ASSIGNMENT. Except as provided in the following
sentence, this Agreement may not be assigned, by operation of law or otherwise.
The Purchaser may assign its rights under this Agreement in whole or in part to
a wholly owned subsidiary of the Purchaser that will take title to the Shares
and will assume all obligations of the Purchaser hereunder; provided, however,
in such event, the Purchaser will remain fully liable for the fulfillment of all
such obligations. This Agreement will be binding upon and inure to the benefit
of successors and assigns of the parties hereto.
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Section 7.8. MISCELLANEOUS. This Agreement (A) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties, with respect to the subject matter hereof;
and (B) is not intended to confer upon any other persons any rights or remedies
hereunder. If any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section 7.9. SPECIFIC PERFORMANCE. The parties hereto acknowledge
and agree that the breach of the provisions of this Agreement by the Selling
Shareholder or the Purchaser could not be adequately compensated with monetary
damages, and the parties hereto agree, accordingly, that injunctive relief and
specific performance shall be appropriate remedies to enforce the provisions of
this Agreement and waive any claim or defense that there is an adequate remedy
at law for such breach; provided, however, that nothing herein shall limit the
remedies available and all remedies herein are in addition to any remedies
available at law or otherwise.
Section 7.10. AMENDMENTS AND WAIVERS. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing and signed
by each party to this Agreement. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SELLING SHAREHOLDER:
SUTTER OPPORTUNITY FUND, LLC
By: Sutter Capital Management, LLC,
as Manager
By /s/ Robert E. Dixon
-------------------------------------
Robert E. Dixon, as Manager
PURCHASER:
AMERICAN REALTY TRUST, INC.
By /s/ A. Cal Rossi, Jr.
-------------------------------------
Name: A. Cal Rossi, Jr.
-----------------------------------
Title: Vice President / ART
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