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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2000
[] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission file number 0-827
EMPIRE STATE BUILDING ASSOCIATES
(Exact name of registrant as specified in its charter)
New York 13-6084254
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
60 East 42nd Street, New York, New York 10165
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 687-8700
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to section 12(g) of the Act:
$33,000,000 of Participations in Partnership Interests
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes [x] No [ ]
The aggregate market of the voting stock held by non-affiliates of
the Registrant: Not applicable, but see Items 5 and 10 of this
report.
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will
not be contained, to the best of Registrant's knowledge, in
definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K. ___
An Exhibit Index is located on pages 50 through 51 of this report.
Number of pages (including exhibits) in this filing: 62
PART I
Item 1. Business.
(a) General
Registrant is a partnership which was organized on July
11, 1961. Registrant holds the tenant's interest in a master
operating leasehold of the Empire State Building (the "Building")
and of the land thereunder, located at 350 Fifth Avenue, New York,
New York (collectively, the "Property"). The fee owner of the
Property is Trump Empire State Partners.
The master lease (the "Master Lease"), which commenced
on December 27, 1961, currently expires on January 5, 2013. The
Lease contains three 21-year renewal options, which have not been
exercised. If all of the options are exercised, the Lease will
expire on January 5, 2076. Registrant previously exercised an
option to renew the Lease for the term ending January 5, 2013.
Registrant does not operate the Property. It subleases
the Building to Empire State Building Company (the "Sublessee")
pursuant to a net operating sublease (the "Sublease") with a term
and renewal options essentially coextensive with those contained
in the Master Lease. On January 30, 1989, Sublessee exercised its
option to renew the Sublease for the first renewal term from
January 4, 1992 to January 4, 2013.
Registrant's partners are Peter L. Malkin, Thomas N.
Keltner, Jr. and Richard A. Shapiro (individually, a "Partner"
and, collectively, the "Partners") each of whom also acts as an
agent for holders of participations in their respective partner-
ship interests in Registrant (each holder of a participation,
individually, a "Participant" and, collectively, the
"Participants").
Sublessee is a partnership in which Peter L. Malkin is a
partner. The partners in Registrant are also members of Wien &
Malkin LLP, 60 East 42nd Street, New York, New York, which
provides supervisory and other services to Registrant and to
Sublessee (the "Supervisor"). See Items 10, 11, 12 and 13 hereof
for a description of the ongoing services rendered by, and
compensation paid to, Supervisor and for a discussion of certain
relationships which may pose potential conflicts of interest among
Registrant, Sublessee and certain of their respective affiliates.
As of December 31, 2000, the Building was 95.2% occupied
by approximately 943 tenants who engage in various businesses,
including the Boy Scouts, the YMCA, the practice of law and
accounting, ladies' and men's apparel, and ladies' and men's
shoes. Registrant does not maintain a full-time staff. See Item
2 hereof for additional information concerning the Property.
(b) The Lease and Sublease
The annual rent payable by Registrant under the Lease is
$1,970,000 from January 5, 1992 through January 5, 2013 and
$1,723,750 annually during the term of each renewal period
thereafter.
Sublessee is required to pay annual basic rent (the
"Basic Rent") equal to $6,018,750 from January 5, 1992 through
January 4, 2013, and $5,895,625 from January 5, 2013 through the
expiration of all renewal terms. Sublessee is also required to
pay overage rent (the "Overage Rent") equal to 50% of its net
operating profit in excess of $1,000,000 in any year.
Overage Rent income is recognized when earned from the
Sublessee, at the close of the year ending December 31; such
income is not determinable until the Sublessee, pursuant to the
Sublease, renders to Registrant a certified report on the
Sublessee's operation of the Property. The Sublease requires that
this report be delivered to Registrant annually within 60 days
after the end of each such fiscal year. Accordingly, all Overage
Rent income and certain supervisory services expense are reflected
in the fourth quarter of each year. The Sublease does not provide
for the Sublessee to render interim reports to Registrant. See
Note 3 of Notes to Financial Statements filed under Item 8 hereof
(the "Notes") regarding Overage Rent payments by Sublessee for the
fiscal years ended December 31, 2000, 1999 and 1998. There was
Overage Rent of $14,583,762 for the year ended December 31, 2000.
(c) Competition
Pursuant to tenant space leases at the Building, the
average annual base rental payable to Sublessee is approximately
$35.26 per square foot (exclusive of electricity charges and
escalation). The asking rents for the building range from $39 to
$55 per square foot.
(d) Tenant Leases
Sublessee operates the Building free from any federal,
state or local government restrictions involving rent control or
other similar rent regulations which may be imposed upon
residential real estate in Manhattan. Any increase or decrease in
the amount of rent payable by a tenant is governed by the
provisions of the tenant's lease.
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Item 2. Property.
Registrant owns the tenant's interest in a master
operating leasehold on the Building known as the Empire State
Building and on the land thereunder located at 350 Fifth Avenue in
New York City. See Item 1 hereof. The Building, erected in 1931
and containing 102 stories, a concourse and a lower lobby,
occupies the entire blockfront from 33rd Street to 34th Street on
Fifth Avenue. The Building has 72 passenger elevators and 4
freight elevators and is equipped with air conditioning and
individual air handling units. The Building is subleased to
Sublessee under the Sublease which expires on January 4, 2013 and
contains three 21-year renewal options. See Item 1 hereof for a
description of the terms of the Lease and Sublease.
Item 3. Legal Proceedings.
The Property of Registrant is the subject of the
following pending litigation:
Studley v. Empire State Building Associates: On October
21, 1991, in an action entitled Studley v. Empire State Building
Associates et al., the holder of a $20,000 original participation
in Registrant brought suit in New York Supreme Court, New York
County against the Agents for Registrant (Peter L. Malkin, Donald
A. Bettex and Alvin Silverman) in their individual capacities and
Wien, Malkin & Bettex (currently "Wien & Malkin LLP"), Supervisor
to Registrant. The suit claimed that the defendants had engaged
in breaches of fiduciary duty and acts of self-dealing in relation
to the Agents' solicitation of consents and authorizations from
the participants in Registrant in September 1991 and in relation
to other unrelated acts of the Agents and the sublessee. By order
dated July 14, 1997, and entered July 29, 1997, the Supreme Court
granted defendants' motion for summary judgment and dismissal of
the action. The plaintiff filed an appeal with respect to the
foregoing order. By decision and order entered April 2, 1998, the
Appellate Division of the Supreme Court unanimously affirmed the
order dismissing the action. The plaintiff was denied permission
to appeal the Appellate Division's ruling to the New York Court of
Appeals. In October 1997, the plaintiff has filed a further
Complaint in New York Supreme Court alleging similar claims,
purportedly as a class action. Defendants' counsel filed a motion
to dismiss the new complaint based upon the courts' prior rulings
and on other grounds. The Court granted the motion to dismiss the
new complaint in its entirety. By order dated October 17, 2000,
the Appellate Division affirmed dismissal of the new complaint. By
order dated January 23, 2001, the Appellate Division denied
plaintiff permission to appeal to the Court of Appeals.
Plaintiff's motion to the Court of Appeals for permission to
appeal is pending.
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Proceedings involving Trump Empire State Partners: In
December 1994, Registrant received a notice of default from Trump.
The Trump default notice to Registrant claimed that Registrant was
in violation of its master lease because of extensive work which
Sublessee had undertaken as part of an improvement program that
commenced before Trump reportedly acquired its interest in the
property in 1994. Trump's notice also complained that the
Building was in need of repairs. On February 14, 1995, Registrant
and Sublessee filed an action ("Action No. 1") in New York State
Supreme Court against Trump for a declaratory judgment that none
of the matters set forth in the notice of default constitutes a
violation of the master lease or sublease and that the notice of
default is entirely without merit. Registrant's and Sublessee's
suit also seeks an injunction to prevent Trump from implementing
the notice of default. On March 24, 1995, the Court granted
Registrant a preliminary injunction against Trump. In 1996 the
Court granted two additional preliminary injunctions against Trump
with respect to two additional default notices. The preliminary
injunctions prohibit Trump from acting on its notices of default
to Registrant at any time, pending the prosecution of claims by
Registrant and Sublessee for a final declaratory judgment and an
injunction and other relief against the Trump defendants. The
Appellate Court has upheld and affirmed the granting of such
preliminary injunctions against the Trump defendants.
On February 15, 1995, Trump filed an action ("Action No.
2") against Registrant, Sublessee, Supervisor, Harry B. Helmsley,
a partner in Sublessee, Helmsley-Spear, Inc. (the management
company of the Empire State Building), and the Agents for
Registrant in New York State Supreme Court, alleging that the
notice of default is valid and seeking damages and related relief
based thereon. On October 24, 1996 the Court dismissed all of
Trump's claims in their entirety against all defendants in Action
No. 2. Trump appealed this Order. The Appellate Court has
unanimously affirmed the dismissal of Trump's claims.
In May, 1995, Registrant and Sublessee filed a separate
legal action ("Action No. 3") against Trump and various affiliated
persons for breach of the master lease and sublease and
disparagement of the property in violation of Registrant' and
Sublessee's leasehold rights. The action was amended to include
additional claims by Registrant and Sublessee (the "Ownership
Claim") seeking a declaratory judgment that they may act as an
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owner of the Property for purposes of making applications and
related activities pursuant to the New York City Building Code.
By decision and order dated October 24, 1996, the Court sustained
Registrant's and Sublessee's claims concerning the parties who may
act as owner of the Property under the Building Code, but
dismissed Registrant's and Sublessee's claims against Trump and
co-defendants for money damages. Registrant and Sublessee
appealed that portion of the Court's order dismissing their claims
for money damages. The Appellate Court has affirmed that part of
the Court's order dismissing the claims for money damages.
By orders dated March 10 and December 16, 1999, the New
York Supreme Court granted partial and then final summary
judgement in Action Nos. 1 and 3 in favor of Registrant and the
Sublessee and against the Trump defendants, rejecting all of the
claims of default asserted by Trump and declaring that Registrant
and the Sublessee were entitled to act as owner for Buildings
Department purposes.
On June 6, 2000, the Appellate Division affirmed the
lower court's summary judgement orders.
New York Skyline Inc.: Registrant is a defendant in an
action instituted in the Supreme Court of the State of New York,
County of New York, entitled New York Skyline Inc. v. Empire State
Building Company, Empire State Building Associates, Nell H.
Kessner, Helmsley-Spear, Inc. and Stephen A. Tole. This lawsuit,
which was brought by a tenant in the Building and was filed on
December 23, 1997, seeks at least $205,000,000 in damages. In its
complaint, plaintiff-tenant asserts thirteen causes of action
(twelve of which are against Sublessee) in connection with its
leases and license agreements of space in the Building and alleges
that it is entitled to, among other things, specific performance
as to its alleged rights under its leases and licensing agreements
with Sublessee, a declaratory judgment as to the rights of the
parties under the leases and licensing agreements, any monies
allegedly due plaintiff under those agreements, as well as
injunctive relief and additional money damages. While the
complaint includes Registrant as a named defendant, it does not
allege or identify any agreement between plaintiff and Registrant
or any other basis of liability on Registrant's part to plaintiff.
On or about February 5, 1998, plaintiff served an amended
complaint which, among other things, added Kessner & Cyruli, f/k/a
Nell H. Kessner & Associates, former landlord-tenant counsel for
the Building, and Eileen Aluska, a former Helmsley-Spear, Inc.
employee, as party defendants. The amended complaint asserts
eleven causes of action, similar to those asserted in the original
complaint. On March 16, 1998, Registrant filed an answer to the
amended complaint denying all allegations of liability. On
December 30, 1999 the action was settled and discontinued without
any payment or other contribution by Registrant to the settlement.
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Wien & Malkin LLP, et. al. v. Helmsley-Spear, Inc., et.
al. On June 19, 1997 Wien & Malkin LLP and Peter L. Malkin filed
an action in the Supreme Court of the State of New York, against
Helmsley-Spear, Inc. and Leona Helmsley concerning various
partnerships which own, lease or operate buildings managed by
Helmsley-Spear, Inc., including Registrant's property. In their
complaint, plaintiffs sought the removal of Helmsley-Spear, Inc.
as managing and leasing agent for all of the buildings.
Plaintiffs also sought an order precluding Leona Helmsley from
exercising any partner management powers in the partnerships. In
August, 1997, the Supreme Court directed that the foregoing claims
proceed to arbitration. As a result, Mr. Malkin and Wien & Malkin
LLP filed an arbitration complaint against Helmsley-Spear, Inc.
and Mrs. Helmsley before the American Arbitration Association.
Helmsley-Spear, Inc. and Mrs. Helmsley served answers denying
liability and asserting various affirmative defenses and
counterclaims; and Mr. Malkin and Wien & Malkin LLP filed a reply
denying the counterclaims. By agreement dated December 16, 1997,
Mr. Malkin and Wien & Malkin LLP (each for their own account and
not in any representative capacity) reached a settlement with Mrs.
Helmsley of the claims and counterclaims in the arbitration and
litigation between them. Mr. Malkin and Wien & Malkin LLP then
continued their prosecution of claims in the arbitration for
relief against Helmsley-Spear, Inc., including its termination as
the leasing and managing agent for various entities and
properties, including the Registrant's Lessee. The arbitration
hearings were concluded in June 2000, and the arbitrators issued
their decision on March 30, 2001, ordering that the termination of
Helmsley-Spear, Inc. would require a new vote by the partners in
the Lessee, setting forth procedures for such a vote, and denying
the other claims of all parties. Following the decision, Mr.
Malkin and Wien & Malkin LLP are evaluating with counsel possible
court review of the decision appeal and other action.
PART II
Item 5. Market for Registrant's Common Equity
and Related Security Holder Matters.
Registrant is a partnership organized pursuant to a
partnership agreement dated as of July 11, 1961.
Registrant has not issued any common stock. The securi-
ties registered by it under the Securities Exchange Act of 1934,
as amended, consist of participations in the partnership interests
-6-
of the Partners in Registrant (the "Participations") and are not
shares of common stock nor their equivalent. The Participations
represent each Participant's fractional share in a Partner's
undivided interest in Registrant and are divided approximately
equally among the Partners. A full unit of the Participations was
offered originally at a purchase price of $10,000; fractional
units were also offered at proportionate purchase prices.
Registrant has not repurchased Participations in the past and is
not likely to change that policy in the future.
(a) The Participations neither are traded on an
established securities market nor are readily tradable on a
secondary market or the substantial equivalent thereof. Based on
Registrant's transfer records, Participations are sold by the
holders thereof from time to time in privately negotiated
transactions and, in many instances, Registrant is not aware of
the prices at which such transactions occur. During the past year
there were 227 transfers. In four instances, the indicated
purchase price was equal to three times the face amount of the
Participation transferred, i.e., $15,000 for a $5,000
Participation. In eighteen instances, the indicated purchase price
was equal to 2.5 times the face amount of the Participation
transferred. In six instances, the indicated purchase price was
equal to 2.25 times the face amount of the Participation
transferred. In five instances, the indicated purchase price was
equal two times the face amount of the participation transferred.
In all other cases, no consideration was indicated.
(b) As of December 31, 2000, there were 2,648 holders
of Participations of record.
(c) Registrant does not pay dividends. During the year
ended December 31, 2000, Registrant made regular monthly
distributions of $98.21 for each $10,000 Participation. There was
Overage Rent payable of $14,583,762 for the year ended December
31, 2000 and Registrant made additional distributions for each
$10,000 Participation of $4,003.59 on March 2, 2001. See Item 1
hereof. There are no restrictions on Registrant's present or
future ability to make distributions; however, the amount of such
distributions, particularly distributions of Overage Rent, depends
solely on Sublessee's ability to make payments of Basic Rent and
Overage Rent to Registrant. See Item 1 hereof. Registrant
expects to make monthly distributions in the future so long as it
receives the payments provided for under the Sublease. See Item 7
hereof.
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Item 6.
EMPIRE STATE BUILDING ASSOCIATES
SELECTED FINANCIAL DATA
Year ended December 31,
2000 1999 1998 1997 1996
Basic rent income........ $ 6,018,750 $ 6,018,750 $ 6,018,750 $6,018,750 $6,018,750
Overage rent income...... 14,583,762 7,582,109 4,109,852 2,401,300 0
Dividend income.......... 256,963 144,690 84,615 10,377 8,647
Total revenues........ $20,859,475 $13,745,549 $10,213,217 $8,430,427 $6,027,397
Net income............... $17,315,601 $10,901,065 $ 7,507,228 $4,752,560 $3,689,511
Earnings per $10,000
participation unit,
based on 3,300
participation units
outstanding during
the year...............$ 5,247 $ 3,303 $ 2,275 $ 1,440 $ 1,118
Total assets............. $20,842,972 $13,253,481 $ 8,787,638 $5,930,702 $3,727,494
Long-term obligations....$ - 0 - $ - 0- $ - 0 - $ -0- $ -0-
Distributions per $10,000
participation unit, based
on 3,300 participation
units outstanding
during the year:
Income.................$ 3,185 $ 2,033 $ 1,500 $ 1,179 $ 1,118
Return of capital...... - 0 - - 0 - - 0 - -0- 61
Total distributions....$ 3,185 $ 2,033 $ 1,500 $ 1,179 $ 1,179
-8-
Item 7.
EMPIRE STATE BUILDING ASSOCIATES
QUARTERLY RESULTS OF OPERATIONS
The following table presents the Company's operating results for each of the
eight fiscal quarters in the period ended December 31, 2000. The
information for each of these quarters is unaudited and has been prepared on
the same basis as the audited financial statements included in this Annual
Report on Form 10-K. In the opinion of management, all necessary
adjustments, which consist only of normal and recurring accruals, have been
included to present fairly the unaudited quarterly results. This data
should be read together with the financial statements and the notes thereto
included in this Annual Report on Form 10-K.
Three Months Ended
March 31, June 30, September 30, December 31,
1999 1999 1999 1999
Statement of Income Data:
Minimum net, basic
rent income $1,504,687 $1,504,688 $1,504,688 $1,504,687
Additional rent
income - - - 7,582,109
Dividend income 47,158 30,410 31,990 35,132
Total revenues 1,551,845 1,535,098 1,536,678 9,121,928
Leasehold rent 492,500 492,500 492,500 492,500
Supervisory services 39,854 39,854 39,854 462,421
Amortization of
leasehold 52,117 52,117 52,117 52,117
Legal fees - - 44,363 39,670
Total expenses 584,471 584,471 628,834 1,046,708
Net income $ 967,374 $ 950,627 $ 907,844 $8,075,220
Earnings per $10,000
participation unit, based
on 3,300 participation
units outstanding during
each period $ 293 $ 288 $ 275 $ 2,447
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Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations.
Registrant was organized solely for the purposes of
owning the Property described in Item 2 hereof subject to the
Sublease. Registrant is required to pay from Basic Rent the
amounts due for supervisory services and to distribute the balance
of such rental payments to Participants. Registrant is required
to pay from Overage Rent additional amounts for supervisory
services and then to distribute the balance of such Overage Rent
to the Participants. Pursuant to the Sublease, Sublessee has
assumed sole responsibility for the condition, operation, repair,
maintenance and management of the Building. Registrant need not
maintain substantial reserves or otherwise maintain liquid assets
to defray any operating expenses of the Property.
The supervisory services provided to Registrant by
Supervisor include real estate supervisory, legal, administrative
and financial services. The services include, but are not limited
to, providing or coordinating with counsel to Registrant,
maintaining all of its partnership records, performing physical
inspections of the Building, reviewing insurance coverage and
conducting annual partnership meetings. Financial services
include monthly receipt of rent from the Sublessee, payment of
monthly rent to the fee owner, payment of monthly and additional
distributions to the Participants, payment of all other
disbursements, confirmation of the payment of real estate taxes,
and active review of financial statements submitted to Registrant
by the Sublessee and financial statements audited by and tax
information prepared by Registrants' independent certified public
accountant, and distribution of such materials to the
Participants. Supervisor also prepares quarterly, annual and other
periodic filings with the Securities and Exchange Commission and
applicable state authorities and distributes to the Participants
quarterly source of distribution reports.
Registrant's results of operations are affected
primarily by the amount of rent payable to it under the Sublease.
The amount of Overage Rent payable to Registrant is affected by
(i) the New York City economy and real estate rental market and
(ii) the cost of the Property improvement program described herein
under Other Information. It is difficult for management to
forecast the New York City economy and real estate market over the
next few years.
As compared with the prior year, a decrease in Overage
Rent in any year reduces the distributions made to the
Participants and the expenditure for supervisory services.
Reductions in the amount of Overage Rent paid to Registrant in the
future will not have any other impact on Registrant. See
paragraph 1 of Item 7 hereof and Notes 3, 4, 5, and 7 of the
Notes.
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The following summarizes the material factors affecting
Registrant's results of operations for the three preceding years:
(a) Total income increased for the year ended December 31, 2000
as compared with the year ended December 31, 1999. Such
increase resulted from an increase in Overage Rent in the
year 2000 and an increase in dividend income earned as
compared with the year ended December 31, 1999. Total income
increased for the year ended December 31, 1999 as compared
with the year ended December 31, 1998. Such increase
resulted from an increase in Overage Rent in the year 1999
and an increase in dividend income earned as compared with
the year ended December 31, 1998. See Note 3 of the Notes.
(b) Total expenses increased for the year ended December 31, 2000
as compared with the year ended December 31, 1999. Such
increase is the result of an increase in additional payment
for supervisory services and an increase in legal fees.
Total expenses increased for the year ended December 31, 1999
as compared with the year ended December 31, 1998. Such
increase was the net result of an increase in additional
payment for supervisory services and a decrease in legal
fees. See Notes 3, 5 and 9 of the Notes.
The State of New York has asserted utility tax
deficiencies through December 31, 1992 in connection with water,
steam and non-metered electricity rent inclusion charges to
tenants, plus estimated accrued interest. The Supreme Court, New
York County, granted summary judgment in favor of the State, which
ruling was affirmed by the Appellate Division, First Department,
holding that the State utility tax applies to such inclusion
charges. Pursuant to the terms of the settlement agreement,
Sublessee agreed to pay the State's assessed tax in the sum of
$979,109, plus interest of approximately $605,000 through July 31,
1996. The State had agreed to payment of the aforesaid liability
over a period of four years, commencing August, 1996, in equal
monthly installments of $40,000, including interest on the unpaid
balance at the statutory rate. Final payment was made in June
2000. The State has asserted additional tax for the years 1993
through 1995 of $243,270 plus accrued interest of $138,100 through
December 31, 2000. The foregoing proposed assessment has not yet
been finalized. The City of New York had asserted a utility tax
deficiency in the amount of $277,125 against Sublessee, through
December 31, 1994, in connection with water, steam and non-metered
electricity rent inclusion charges to tenants, plus accrued
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interest of approximately $345,603 through April 30, 2000.
Sublessee was also liable for an undetermined amount of additional
New York City Utility Tax for periods after December 31, 1994.
Under a settlement proposed by New York City to all taxpayers,
Sublessee agreed to settle utility taxes for all years by paying
the tax only for the year 1997. The city reviewed the records of
Company for 1997 and determined that no additional utility tax is
payable for periods prior to January 1, 1998. Accordingly, the
prior proposed assessment of $277,125 plus interest thereon has
been cancelled. New York City and New York State repealed the
utility tax, as it applies to Sublessee, effective January 1,
1998.
Liquidity and Capital Resources
There has been no significant change in Registrant's
liquidity or capital resources for the fiscal year ended December
31, 2000 as compared with the fiscal year ended December 31, 1999.
Inflation
Inflationary trends in the economy do not directly
impact Registrant's operations. As noted above, Registrant does
not actively engage in the operation of the Property. Inflation
may impact the operations of the Sublessee. The Sublessee is
required to pay the Basic Rent regardless of the results of its
operations. Inflation and other operating factors affect the
amount of Overage Rent payable by the Sublessee, which is based on
the Sublessee's net operating profit.
Other Information
The Sublessee maintains the Building as a high-class
office building as required by the terms of the Sublease.
In 1990, the Sublessee commenced its latest improvement
program which is estimated to be completed at a total cost of
approximately $68,000,000. Under this program, approximately
6,400 windows are being replaced and this portion of the program
is completed. In addition, the elevators have been upgraded
through installation of a computerized control system and the
replacement of all electrical and mechanical equipment. The
elevator modernization program has increased elevator speed from
800 to 950 feet per minute to 1200 feet per minute. Also included
is waterproofing the Building's exterior, resetting and repairing
the limestone facade, upgrading the Building's security system,
upgrading and replacing the Building's fire safety system and
making substantial further improvement to the air-conditioning,
domestic pump and water systems, waterproofing the mooring mast
and installing a new observation deck ticket office.
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The Sublessee anticipates that the costs of improvements
to be incurred will reduce Overage Rent during the year 2001 but
should have no effect on the payment of Basic Rent.
Under Sublessee's management, the Building recently won
three awards from the Building Owners and Management Association
("BOMA") (BOMA/NY Award 1989; BOMA Middle Atlantic Region Award
1990/91 and the BOMA International Award for excellence 1992/93).
The New York Landmarks Conservancy recently awarded a Merit
Citation to the Building. In 1994, Metaloptics recognized the
Building for excellence in lighting efficiency. In December 1994,
Energy User News, a national publication, awarded a Certificate of
Merit in the lighting category for excellence and innovation in
energy efficiency and management of the Building.
Item 8. Financial Statements and Supplementary Data.
The financial statements, together with the accompanying
reports by, and the consents to the use thereof by J.H. Cohn LLP
and McGrath, Doyle & Phair, immediately following, are being filed
in response to this item.
Item 9. Disagreements on Accounting and Financial Disclosure.
Not applicable.
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PART III
Item 10.Directors and Executive Officers of Registrant.
Registrant has no directors or officers or any other
centralization of management. There is no specific term of office
for any Partner. The table below sets forth as to each Partner as
of December 31, 2000 the following: name, age, nature of any
family relationship with any other Partner, business experience
during the past five years and principal occupation and employment
during such period, including the name and principal business of
any corporation or any organization in which such occupation and
employment was carried on and the date such individual became a
Partner:
Principal Date
Nature of Occupation Individual
Family Business and became
Name Age Relationship Experience Employment Partner
Peter L. Malkin 67 None Real Estate Senior Partner 1961
Supervision and Chairman
and Law Wien & Malkin
LLP
Thomas N. Keltner,
Jr. 54 None Real Estate Partner 1998
Supervision Wien & Malkin
and Law LLP
Richard A. Shapiro 55 None Real Estate Partner 1998
Supervision Wien & Malkin
and Law LLP
As stated above, all three of the Partners are members
of Supervisor. See Items 1, 11, 12 and 13 hereof for a
description of the services rendered by, and the compensation paid
to, Supervisor and for a discussion of certain relationships which
may pose actual or potential conflicts of interest among
Registrant, Sublessee and certain of their respective affiliates.
The names of entities which have a class of securities
registered pursuant to Section 12 of the Securities Exchange Act
of 1934 or are subject to the requirements of Section 15(d) of
that Act, and in which the Partners are either a director, joint
venturer or general partner are as follows:
-14-
Peter L. Malkin is a joint venturer in 250 West 57th St.
Associates and Navarre-500 Building Associates and a
general partner in Garment Capitol Associates and 60
East 42nd St. Associates.
Thomas N. Keltner, Jr. is a joint venturer in Navarre-
500 Building Associates; and a general partner in
Garment Capitol Associates and 60 East 42nd St.
Associates.
Richard A. Shapiro is a general partner in Garment
Capitol Associates and 60 East 42nd St. Associates.
Item 11. Executive Compensation.
As stated in Item 10 hereof, Registrant has no directors
or officers or any other centralization of management.
No remuneration was paid during the current fiscal year
ended December 31, 2000 by Registrant to any of the Partners as
such. Registrant pays Supervisor, for supervisory services and
disbursements, fees of $100,000 per annum plus 6% of all sums
distributed to the Participants in excess of 9% per annum on their
original cash investment. Pursuant to such arrangements described
herein, Registrant paid Supervisor a total of $1,002,727
(consisting of $100,000 as an annual basic payment for supervisory
services and $902,727 as an additional payment for supervisory
services) for supervisory services rendered during the fiscal year
ended December 31, 2000. The supervisory services include, among
other items, the preparation of certain reports required by the
Securities and Exchange Commission, the monitoring or coordination
of certain other areas of legal compliance, the preparation of
certain financial reports, as well as the supervision of
accounting and other documentation related to the administration
of Registrant's business. See Item 7 hereof. Out of its fees,
Supervisor paid all disbursements and costs of regular accounting
services. As noted in Items 1 and 10 of this report, the Partners
are also members of Supervisor.
Item 12. Security Ownership of Certain Beneficial Owners
and Management.
(a) Registrant has no voting securities. See Item
5 hereof. At December 31, 2000, no person owned of record or was
known by Registrant to own beneficially more than 5% of the
outstanding Participations.
-15-
(b) At December 31, 2000, the Partners (see Item
10 hereof) beneficially owned, directly or indirectly, the
following Participations:
Name & Address Amount of
of Beneficial Beneficial Percent
Title of Class Owners Ownership of Class
Participations Thomas N. Keltner, Jr. $ 5,000 .0152%
in Partnership 60 East 42nd Street
Interests New York, NY 10165
Richard A. Shapiro $ 5,000 .0152%
60 East 42nd Street
New York, NY 10165
At such date, certain of the Partners (or their
respective spouses) held additional Participations as follows:
Peter L. Malkin owned of record as trustee or co-trustee
but not beneficially, $255,000 of Participations. Mr.
Malkin disclaims any beneficial ownership of such
Participations.
Entities for the benefit of members of Peter L. Malkin's
family owned of record and beneficially $546,250 of
Participations. Mr. Malkin disclaims any beneficial
ownership of such Participations, except that related
Trusts are required to complete scheduled payments to
Mr. Malkin.
(c) Not applicable.
Item 13. Certain Relationships and Related Transactions.
(a) As stated in Item 1 hereof, Mr. Peter L.
Malkin, Mr. Keltner and Mr. Shapiro are the three Partners of
Registrant and also act as agents for the Participants in their
respective partnership interests. Mr. Malkin is also a partner in
Sublessee. As a consequence of one of the three Partners being a
partner in Sublessee, and all of the Partners being current
members of Supervisor (which supervises Registrant and Sublessee),
certain actual and potential conflicts of interest may arise with
respect to the management and administration of the business of
Registrant. However, under the respective participating
agreements pursuant to which the Partners act as agents for the
Participants, certain transactions require the prior consent from
Participants owning a specified interest under the agreement in
order for the agents to act on their behalf. Such transactions
include modifications and extensions of the Sublease, or a sale or
other disposition of the Property or substantially all of
Registrant's other assets.
-16-
Reference is made to Items 1 and 2 hereof for a
description of the terms of the Sublease between Registrant and
Sublessee. The respective interests of the Partners in Registrant
and in the Sublease arise solely from ownership of their
respective participations in Registrant and, in the case of Mr.
Malkin, his ownership of a partnership interest in Sublessee. The
Partners receive no extra or special benefit not shared on a pro
rata basis with all other security holders of Registrant or
partners in Sublessee. However, the Partners, by reason of their
respective interest in Supervisor, are entitled to receive their
pro rata share of any supervisory, service, legal or other
remuneration paid to Supervisor for services rendered to
Registrant and Sublessee. See Item 11 hereof for a description of
the remuneration arrangements between Registrant and Supervisor
relating to supervisory services provided by Supervisor.
Reference is also made to Items 1 and 10 hereof for
a description of the relationship between Registrant and
Supervisor, of which two of the Partners are among its current
members. The interest of each Partner in any remuneration paid or
given by Registrant to Supervisor arise solely from the ownership
of such Partner's interest in Supervisor. See Item 11 hereof for
a description of the remuneration arrangements between Registrant
and Supervisor relating to supervisory services provided by
Supervisor.
(b) Reference is made to Paragraph (a) above.
(c) Not applicable.
(d) Not applicable.
-17-
PART IV
Item 14. Exhibits, Financial Statement Schedules and
Reports on Form 8-K.
(a)(1) Financial Statements:
Consent of J.H. Cohn LLP, Certified Public Accountants,
dated March 16, 2001.
Accountant's Report of J.H. Cohn LLP, Certified Public
Accountants, dated March 15, 2001.
Balance Sheets at December 31, 2000 and at December 31,
1999 (Exhibit A).
Statements of Income for the fiscal years ended December
31, 2000, 1999 and 1998 (Exhibit B).
Statement of Partners' Capital for the fiscal year ended
December 31, 2000 (Exhibit C-1).
Statement of Partners' Capital for the fiscal year ended
December 31, 1999 (Exhibit C-2).
Statement of Partners' Capital for the fiscal year ended
December 31, 1998 (Exhibit C-3).
Statements of Cash Flows for the fiscal years ended
December 31, 2000, 1999 and 1998 (Exhibit D).
Notes to Financial Statements for the fiscal years ended
December 31, 2000, 1999 and 1998.
Consent of McGrath, Doyle & Phair, Certified Public
Accountants, dated March 14, 2001.
Accountant's Comparative Combined Statement of Income
(Sublessee) of McGrath, Doyle & Phair, Certified Public
Accountants, dated March 14, 2001.
(2) Financial Statement Schedules:
List of Omitted Schedules.
Real Estate and Accumulated Depreciation - December
31, 2000 (Schedule III).
(3) Exhibits: See Exhibit Index.
(b) No Form 8-K was filed by Registrant for the final
quarter of 2000.
-18-
[LETTERHEAD OF J.H. COHN
ACCOUNTANTS & CONSULTANTS]
March 16, 2001
Empire State Building Associates
New York, N. Y.
We consent to the use of our independent accountants' report dated
March 15, 2001 covering our audits of the accompanying financial
statements of Empire State Building Associates in connection with and
as part of your December 31, 2000 annual report (Form 10-K) to the
Securities and Exchange Commission.
J.H. Cohn LLP
New York, N.Y.
-19-
[LETTERHEAD OF J.H. COHN
ACCOUNTANTS & CONSULTANTS]
INDEPENDENT ACCOUNTANTS' REPORT
To the participants in Empire State Building Associates
(a Partnership)
New York, N. Y.
We have audited the accompanying balance sheets of Empire State
Building Associates ("Associates") as of December 31, 2000 and 1999,
and the related statements of income, partners' capital and cash
flows for each of the three years in the period ended December 31,
2000, and the supporting financial statement schedule as contained in
Item 14(a)(2) of this Form 10-K. These financial statements and
schedule are the responsibility of Associates' management. Our
responsibility is to express an opinion on these financial statements
and financial statement schedule based on our audits.
We conducted our audits in accordance with auditing standards
generally accepted in the United States of America. Those standards
require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Empire
State Building Associates as of December 31, 2000 and 1999, and the
results of its operations and its cash flows for each of the three
years in the period ended December 31, 2000 in conformity with
accounting principles generally accepted in the United States of
America, and the related financial statement schedule, when
considered in relation to the basic financial statements, presents
fairly, in all material respects, the information set forth therein.
J.H. Cohn LLP
New York, N. Y.
March 15, 2001
-20-
EXHIBIT A
EMPIRE STATE BUILDING ASSOCIATES
BALANCE SHEETS
A S S E T S
December 31,
2000 1999
Current assets:
Cash and cash equivalents (Note 12):
The Chase Manhattan Bank............................... $ 1,418 $ 4,249
Distribution account held by
Wien & Malkin LLP..................................... 324,111 324,111
Fidelity U.S. Treasury Income Portfolio................ 15,408,212 9,209,075
15,733,741 9,537,435
Additional rent due from Empire State
Building Company, a related party....................... 2,583,762 982,109
Prepaid rent............................................. 23,831 23,831
TOTAL CURRENT ASSETS............................... 18,341,334 10,543,375
Real estate (Note 2):
Leasehold on Empire State Building,
350 Fifth Avenue, New York, N. Y........................ 39,000,000 39,000,000
Less: Accumulated amortization........................ 36,498,362 36,289,894
2,501,638 2,710,106
TOTAL ASSETS....................................... $20,842,972 $13,253,481
LIABILITIES AND PARTNERS' CAPITAL
Current liabilities:
Accrued legal fees, to a related party (Note 10)......... $ 1,854,565 $ 1,491,886
Accrued supervisory services, to a related party (Note 5) 843,310 422,566
TOTAL LIABILITIES.................................. 2,697,875 1,914,452
Contingencies (Notes 9 and 11).............................
Partners' capital (Exhibit C).............................. 18,145,097 11,339,029
TOTAL LIABILITIES AND PARTNERS' CAPITAL............ $20,842,972 $13,253,481
See accompanying notes to financial statements.
-21-
EXHIBIT B
EMPIRE STATE BUILDING ASSOCIATES
STATEMENTS OF INCOME
Year ended December 31,
2000 1999 1998
Revenues:
Rent income, from a related party (Note 3).... $20,602,512 $13,600,859 $10,128,602
Dividend income............................... 256,963 144,690 84,615
20,859,475 13,745,549 10,213,217
Expenses:
Leasehold rent (Note 4)....................... 1,970,000 1,970,000 1,970,000
Supervisory services, to a related
party (Note 5)............................... 1,002,727 581,983 339,417
Legal fees, to a related party (Note 10)...... 362,679 84,033 188,104
Amortization of leasehold (Note 2)............ 208,468 208,468 208,468
3,543,874 2,844,484 2,705,989
NET INCOME, CARRIED TO PARTNERS'
CAPITAL (NOTE 8)................... $17,315,601 $10,901,065 $ 7,507,228
Earnings per $10,000 participation unit, based
on 3,300 participation units outstanding
during each year............................... $ 5,247 $ 3,303 $ 2,275
See accompanying notes to financial statements.
-22-
EXHIBIT C-2
EMPIRE STATE BUILDING ASSOCIATES
STATEMENT OF PARTNERS' CAPITAL
YEAR ENDED DECEMBER 31, 1999
Capital Capital
January 1, Share of December 31,
1999 net income Distributions 1999
Richard A. Shapiro Group.. $2,382,433 $ 3,633,688 $2,236,444 $ 3,779,677
Thomas N. Keltner Group... 2,382,432 3,633,689 2,236,445 3,779,676
Peter L. Malkin Group..... 2,382,432 3,633,688 2,236,444 3,779,676
$7,147,297 $10,901,065 $6,709,333 $11,339,029
See accompanying notes to financial statements.
-23-
EXHIBIT C-3
EMPIRE STATE BUILDING ASSOCIATES
STATEMENT OF PARTNERS' CAPITAL
YEAR ENDED DECEMBER 31, 1998
Capital Capital
January 1, Share of December 31,
1998 net income Distributions 1998
Richard A. Shapiro Group
(formerly
John L. Loehr Group).... $1,530,241 $2,502,409 $1,650,217 $2,382,433
Thomas N. Keltner Group
(formerly Stanley
Katzman Group).......... 1,530,240 2,502,410 1,650,218 2,382,432
Peter L. Malkin Group..... 1,530,240 2,502,409 1,650,217 2,382,432
$4,590,721 $7,507,228 $4,950,652 $7,147,297
See accompanying notes to financial statements.
-24-
EXHIBIT C-1
EMPIRE STATE BUILDING ASSOCIATES
STATEMENT OF PARTNERS' CAPITAL
YEAR ENDED DECEMBER 31, 2000
Capital Capital
January 1, Share of December 31,
2000 net income Distributions 2000
Richard A. Shapiro Group.. $ 3,779,677 $ 5,771,867 $3,503,178 $ 6,048,366
Thomas N. Keltner Group... 3,779,676 5,771,867 3,503,178 6,048,365
Peter L. Malkin Group..... 3,779,676 5,771,867 3,503,177 6,048,366
$11,339,029 $17,315,601 $10,509,533 $18,145,097
See accompanying notes to financial statements.
-25-
EXHIBIT D
EMPIRE STATE BUILDING ASSOCIATES
STATEMENTS OF CASH FLOWS
Year ended December 31,
2000 1999 1998
Cash flows from operating activities:
Net income.................................... $ 17,315,601 $10,901,065 $ 7,507,228
Adjustments to reconcile net income to net
cash provided by operating activities:
Amortization of leasehold.................. 208,468 208,468 208,468
Changes in operating assets
and liabilities:
Additional rent due from Empire State
Building Company, a related party...... (1,601,653) (372,257) (608,552)
Accrued supervisory services,
to a related party..................... 420,744 242,566 112,256
Accrued legal fees, to a related party.. 362,679 31,545 188,104
Net cash provided by
operating activities................. 16,705,839 11,011,387 7,407,504
Cash flows from financing activities:
Cash distributions............................ (10,509,533) (6,709,333) (4,950,652)
Net cash used in financing
activities............................ (10,509,533) (6,709,333) (4,950,652)
Net increase in cash
and cash equivalents.................. 6,196,306 4,302,054 2,456,852
Cash and cash equivalents, beginning of year.... 9,537,435 5,235,381 2,778,529
CASH AND CASH EQUIVALENTS, END OF YEAR. $ 15,733,741 $ 9,537,435 $ 5,235,381
See accompanying notes to financial statements.
-26-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
1. Business Activity
Empire State Building Associates ("Associates") is a general partnership
which holds the tenant's position in the master leasehold of the Empire
State Building (the "Building"), located at 350 Fifth Avenue, New York
City. Associates subleases the property to Empire State Building Company
("Company").
2. Summary of Significant Accounting Policies
a. Cash and Cash Equivalents:
Cash and cash equivalents include investments in money market funds
and all highly liquid debt instruments purchased with a maturity of
three months or less.
b. Real Estate and Amortization of Leasehold:
Real estate, consisting of a leasehold, is stated at cost.
Amortization of the leasehold is being computed through its first
renewal term by the straight-line method over its estimated useful
life of 25 years, from January 1, 1988 to January 5, 2013 (see Note
4).
c. Use of Estimates:
In preparing financial statements in conformity with accounting
principles generally accepted in the United States of America,
management makes estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosures of contingent
assets and liabilities at the date of the financial statements, as
well as the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
3. Related Party Transactions - Rent Income
Rent income for the years ended December 31, 2000, 1999 and 1998 totaling
$20,602,512, $13,600,859 and $10,128,602, respectively, consists of the
minimum annual rent plus additional rent under an operating sublease
dated December 27, 1961, as modified February 15, 1965, with Company (the
"Sublessee"), as follows:
Year ended December 31,
2000 1999 1998
Minimum net basic rent...... $ 6,018,750 $6,018,750 $ 6,018,750
Additional rent earned...... 14,583,762 7,582,109 4,109,852
$20,602,512 $13,600,859 $10,128,602
-27-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
3. Related Party Transactions - Rent Income (continued)
The sublease provides for the same initial term and renewal options as
the leasehold (see Note 4), less one day. In January 1989, the Sublessee
exercised its option to renew the sublease for the first renewal period
from January 4, 1992 to January 4, 2013. The annual minimum net basic
rent during the first renewal term was reduced to $6,018,750, and is to
be further reduced to $5,895,625 during each of three remaining renewal
terms.
Additional rent earned is equal to fifty percent of the Sublessee's
annual net income (as defined in the sublease) in excess of $1,000,000.
A partner in Associates is also a partner in the Sublessee.
4. Leasehold Rent
Leasehold rent represents the net basic rent of $1,970,000 per annum
under an operating lease dated December 27, 1961, as modified February
15, 1965, with The Prudential Insurance Company of America
("Prudential"). Associates exercised its first renewal option in 1988,
and the current leasehold rent remains unchanged throughout the first
renewal term of the lease, which ends on January 5, 2013.
The lease contains options for Associates to renew the leasehold for an
additional 3 successive periods of 21 years each. The basic rent is to
be further reduced to $1,723,750 per annum during each of the remaining
three renewal terms.
On November 27, 1991, Prudential sold the property to E.G. Holding Co.,
Inc. which, through merger and conveyance, transferred its interest as
lessor to Trump Empire State Partners (see Note 9b). Associates' rights
under the master leasehold remain unchanged.
5. Related Party Transactions - Supervisory Services
Supervisory services (including disbursements and cost of regular
accounting services) during the years ended December 31, 2000, 1999 and
1998, totaling $1,002,727, $581,983 and $339,417, respectively, represent
fees incurred by the firm of Wien & Malkin LLP. Some members of that
firm are partners in Associates.
Fees for supervisory services are paid pursuant to an agreement, which
amount is based on a rate of return of investment achieved by the
participants in Associates each year.
-28-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
6. Number of Participants
There were approximately 2,640 participants in the participating groups at
December 31, 2000, 1999 and 1998.
7. Determination of Distributions to Participants
Distributions to participants in 2000, 1999 and 1998 of $10,509,533,
$6,709,333 and $4,950,652, respectively, represented the following:
2000 1999 1998
Minimum annual rent.. $ 6,018,750 $ 6,018,750 $ 6,018,750
Additional rent,
earned in
previous year,
distributed in
current year........ 7,582,109 4,109,852 2,401,300
Dividend income
earned in previous
year, distributed
in current year...... 144,690 84,615 10,377
13,745,549 10,213,217 8,430,427
Less:
Leasehold rent
expense............ $1,970,000 $1,970,000 $1,970,000
Supervisory
services incurred
in previous year... 581,983 339,417 227,161
Legal fees incurred
in previous year... 84,033 188,104 1,272,237
Amount held in
reserve to fund
payment of accrued
legal fees......... 600,000 1,006,363 10,377
3,236,016 3,503,884 3,479,775
Distributions
to participants.....$10,509,533 $ 6,709,333 $ 4,950,652
-29-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
8. Distributions and Amount of Income per $10,000 Participation Unit
Distributions per $10,000 participation unit during the years 2000, 1999
and 1998 based on 3,300 participation units outstanding during each
year, consisted of the following:
Year ended December 31,
2000 1999 1998
Income........................ $3,185 $2,033 $1,500
Return of capital............. - - -
TOTAL DISTRIBUTIONS....... $3,185 $2,033 $1,500
Net income is computed without regard to income tax expense since
Associates does not itself pay a tax on its income; instead, any such
taxes are paid by the participants in their individual capacities.
9. Litigation and Subsequent Events
a. On October 21, 1991, in an action entitled Studley v. Empire State
Building Associates et al., the holder of a $20,000 original participation in
Associates brought suit in New York Supreme Court, New York County against
the Agents for Associates (Peter L. Malkin, Donald A. Bettex and Alvin
Silverman) in their individual capacities and Wien, Malkin & Bettex (currently
"Wien & Malkin LLP"), supervisor to Associates. The suit claims that the
defendants had engaged in breaches of fiduciary duty and acts of self-dealing
in relation to the Agents' solicitation of consents and authorizations from
the participants in Associates in September 1991 and in relation to other
unrelated acts of the Agents and the sublessee. By order dated July 14, 1997,
the Court granted defendants' application for summary judgment and dismissal
of the action. The Plaintiff applied for permission to appeal the Appellate
Division's determination to the New York Court of Appeals, and that application
was denied by both the Appellate Division and the Court of Appeals. Thereafter,
the Plaintiff filed a second complaint, which alleges claims similar to those
asserted in the previously dismissed complaint. The defendants applied for
dismissal of the second complaint based on the prior dismissal orders and on
other grounds. The Court dismissed the second complaint, and Plaintiff has
appealed that dismissal to the Appellate Division. On October 17, 2000, the
Appellate Division of the Supreme Court unanimously affirmed the dismissal of
the Plaintiff's complaint. In January 2001, the Appellate Division denied
Plaintiff's request to appeal the dismissal to the Court of Appeals.
On February 21, 2001, Plaintiff submitted an application requesting
permission to appeal the dismissal to the Court of Appeals. It is not
possible at this time to predict the outcome or range of potential loss, if
any, which might result from this action. No provision for any liability that
may result upon adjudication has been made in the accompanying financial
statements.
-30-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
9. Litigation and Subsequent Events (continued)
b. In December 1994, Associates received a notice of default from Trump
Empire State Partners ("Trump"). The Trump default notice to Associates claims
that Associates was in violation of its master lease because of extensive work
which Company, the sublessee, had undertaken as part of an improvement program
that commenced before Trump reportedly acquired its interest in the property in
1994. Trump's notice also complains that the building is in need of repairs.
On February 14, 1995, Associates and Company filed an action (the "Action") in
New York State Supreme Court against Trump for a declaratory judgment that none
of the matters set forth in the notice of default constitutes a violation of
the master lease or sublease and that the notice of default is entirely without
merit. Associates' and Company's suit also seeks an injunction to prevent Trump
from implementing the notice of default ("Notice I"). On March 24, 1995, the
Court granted Associates a preliminary injunction against Trump. In 1996 the
Court granted two additional injunctions against Trump with respect to two
additional default notices ("Notices II and III"). The preliminary injunctions
prohibit Trump from acting on its notices of default to Associates at any time,
pending theprosecution of claims by Associates and Company for a final
declaratory judgment and an injunction and other relief against the Trump
defendants. The Appellate Court has upheld and affirmed the granting of such
preliminary injunctions against the Trump defendants.
On June 5, 1998, Company and Associates filed a motion for summary
judgment in the Action in a companion action (the "Companion Action") entitled
Empire State Building Associates and Empire State Building Company v. Donald
Trump et. al., in which plaintiffs seek related declaratory and injunctive
relief against Trump and its affiliates with respect to plaintiffs' rights to
act as owner of the Building in dealings with the New York City Department of
Buildings.
In a decision and order dated March 10, 1999, the Court awarded partial
summary judgment to Associates and Company in the Action, declaring that Notices
II and III were invalid and of no force and effect, and further declaring that
there was no legal or factual basis for many of the defaults alleged in Notice
I. The Court also awarded summary judgment to Associates in the Companion
Action, declaring that Associates is entitled to act as "owner" of the Building
for purposes of dealing with the New York City Department of Buildings and
enjoining Trump from interfering with such right.
In May 1999, plaintiffs renewed their motion for summary judgment in the
Action. At that time, the Trump defendants also filed notices of appeal from
the Court's March 10, 1999 decision and order in the Action and Companion
Action.
In a further decision dated December 16, 1999 and entered as final
judgment on January 12, 2000, the Court granted plaintiffs' renewed motion for
summary judgment in the Action, declaring that the remaining claims of default
asserted by Trump were without merit and that plaintiffs were not in default
under the master lease.
On January 31, 2000, the Trump defendants filed a notice of appeal from
the January 12, 2000 final judgment entered in the Action, and in June 2000, the
Appellate Division affirmed the judgement in favor of Associates and Company and
against Trump.
-31-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
9. Litigation and Subsequent Events (continued)
Plaintiffs intend to challenge any future claims of default by Trump
and, if appropriate, to renew their motion for summary judgment. No provision
for any liability that may result upon adjudication has been made in the
accompanying financial statements.
10. Related Party Transactions - Legal Fees
The accompanying statements of income reflect legal fees paid or owed
to Wien & Malkin LLP, a related party (Note 5), as follows:
2000 1999 1998
Reimbursement owing to Agents
of their legal and accounting
expenses relating to the
Studley suit (Note 9a) $219,386 $39,670 $179,979
Other payments made or accrued 143,293 44,363 8,125
$362,679 $84,033 $188,104
Accrued legal fees at December 31, 2000 and 1999 consist of amounts owing for
services and expenses relating to the Trump (Note 9b) and Studley lawsuits.
Of the amounts accrued at December 31, 2000, $312,172 was paid to Wien &
Malkin LLP in February 2001 for legal expenses relating to the successfully
concluded Trump suits.
Substantial legal and accounting expenses have been accrued in
connection with the Studley litigation. As of December 31, 2000,
such fees and expenses aggregated $1,542,393, of which Wien &
Malkin LLP has advanced $1,086,796 to third-party professional
firms, and the balance represents the total time-charges and
related disbursements to date for litigation services of Wien &
Malkin LLP. Associates may be entitled to reimbursement from
Company for some or all of such expenses as finally computed. The
determination of the allocable share of Associates' legal and
accounting costs and disbursements which are chargeable to Company
involves complex issues of fact and law. Because of uncertainties
concerning these issues, the amount of professional fees required
to be borne by Company cannot be estimated and has not been
provided for, except that Associates maintains general cash
reserves in excess of the total amount of all unpaid professional
fees related to the defense of the Studley litigation.
-32-
EMPIRE STATE BUILDING ASSOCIATES
NOTES TO FINANCIAL STATEMENTS
(Continued)
11. Contingencies
Wien & Malkin LLP and Peter L. Malkin are engaged in a dispute
with Helmsley-Spear, Inc., the building manager of the Empire
State Building, concerning the management, leasing and supervision
of the property net leased to the Sublessee. In this connection,
certain legal and professional fees and other expenses have been
paid and incurred and additional costs are expected to be
incurred. Associates' allocable share of such costs cannot as yet
be determined. Accordingly, Associates has not provided for the
expense and related liability with respect to such costs in the
accompanying financial statements.
12. Concentration of Credit Risk
Associates maintains cash balances in a bank, money market funds
(Fidelity U.S. Treasury Income Portfolio) and a distribution
account held by Wien & Malkin LLP. The bank balance is insured by
the Federal Deposit Insurance Corporation up to $100,000, and at
December 31, 2000 was completely insured. The cash in the money
market funds and the account held by Wien & Malkin LLP are not
insured. The funds held in the distribution account were paid to
the participants on January 1, 2001.
13. Receipt of Warrants and Stock in Telecommunications Companies
In 2000, Associates received 15,614 shares of common stock of Broadband
Office, Inc., and warrants to acquire 40,150 shares and 36,000 shares
of common stock of Gillette Global Network, Inc. ("Gillette") and ENN
Providers, Inc. ("Narrowcast"), respectively, (each of the
aforementioned companies collectively referred to as the
"Corporations"). The stock and warrants were provided to Associates
for allowing the Corporations, at little or no cost to Associates, to
wire the Building to provide high speed internet access and other
telecommunications services, the installation of monitors in the
building's elevator cabs to display current news and weather reports,
advertisements and building information messages. Company received an
equal amount of shares and warrants. In addition, Company will receive
from 5% to 10% of the revenues generated by such services from
advertising and subscriptions with tenants of the building. No income
from these sources was earned in 2000. The warrants are exercisable,
generally, following an initial public offering ("IPO") of each of the
Corporations. There is no expectation that such an IPO will occur at
anytime soon. The Gillette and Narrowcast warrants expire on August
29, 2003 and August 17, 2005, respectively. There are restrictions as
to the transfer of stock and there is no current market for the
warrants or the stock. Since they did not have an ascertainable value
as of the date they were granted or at December 31, 2000, no amounts
have been recorded in the accompanying financial statements for such
warrants or shares.
-33-
[LETTERHEAD OF MCGRATH, DOYLE & PHAIR
CERTIFIED PUBLIC ACCOUNTANTS]
March 26, 2001
Empire State Building Company
New York, N.Y.
We consent to the use of our independent accountants' report dated March 14,
2001 covering our audits of the Comparative Combined Statement of Income of
Empire State Building and Observatory in connection with and as part of your
December 31, 2000 annual report (Form 10-K) to the Securities and Exchange
Commission.
McGrath, Doyle & Phair
New York, N.Y.
-34-
[LETTERHEAD OF MCGRATH, DOYLE & PHAIR
CERTIFIED PUBLIC ACCOUNTANTS]
Empire State Building Company
60 East 42nd Street
New York, NY 10165
We have audited the accompanying Comparative Combined Statement of
Income of Empire State Building and Observatory for the years ended December
31, 2000 and 1999 for the purpose of determining "Net Operating Profit" and
"Overage Rent" as those terms are defined in Section 2.05 of Agreement of
Sublease dated December 27, 1961. During the years ended December 31, 2000 and
1999, the entire building, with the exception of the Observatory, was operated
by Empire State Building Company and the Observatory was operated by Empire
State Building, Inc. The Combined Statement of Income is the responsibility of
the management of Empire State Building Company and Empire State Building,
Inc. Our responsibility is to express an opinion on the Combined Statement of
Income based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the Combined Statement of Income is
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the statement. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall presentation
of the Combined Statement of Income. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the accompanying Comparative Combined Statement of
Income of Empire State Building and Observatory presents fairly, in all
material respects, the Net Operating Profit and Overage Rent for the years
ended December 31, 2000 and 1999, in conformity with Section 2.05 of the
aforementioned Agreement dated December 27, 1961.
As discussed in Note 3 to the Combined Statement of Income, the Empire
State Building Company and other related parties have been named as defendants
in legal actions. All defendants have denied all material allegations. It is
not possible at this time to predict the outcome or range of potential loss,
if any, which might result from those actions. No provision for any loss has
been made in the accompanying Combined Statement of Income.
McGrath, Doyle & Phair
New York, NY
March 14, 2001
-35-
Empire State Building and Observatory
COMPARATIVE COMBINED STATEMENT OF INCOME
Increase
2000 1999 (Decrease)
INCOME
Rent, including electricity $69,461,218 $59,755,165 $9,706,053
Observatory admissions 23,654,368 18,420,734 5,233,634
Other observatory income 2,624,108 1,149,970 1,474,138
Antenna rent 5,077,548 5,334,395 (256,847)
Lease cancellation 67,760 - 67,760
Percentage rent 328,434 691,441 (363,007)
Utility tax reduction (Note 5) 602,434 - 602,434
Other 1,033,768 840,707 193,061
Total income 102,849,638 86,192,412 16,657,226
OPERATING EXPENSES
Rent 6,018,750 6,018,750 -
Real estate taxes 19,523,532 19,542,337 (18,805)
Wages, contract cleaning and
protection service 13,165,323 12,625,802 539,521
Electricity 7,029,324 5,101,519 1,927,805
Tenants' and building
alterations, repairs and supplies 6,823,452 10,555,096 (3,731,644)
Management fees and leasing
commissions (Note 1) 4,687,457 2,872,316 1,815,141
Observatory:
Wages 2,278,651 1,863,183 415,468
Contracted labor 2,145,304 2,179,869 (34,565)
Advertising and public relations 402,858 187,103 215,755
Payroll taxes and other labor cost 810,417 656,856 153,561
Other taxes and expenses 348,276 188,767 159,509
Steam 1,545,921 1,172,078 373,843
Professional fees (Note 2) 1,502,321 1,423,216 79,105
Payroll taxes and other labor costs 3,792,167 3,560,811 231,356
Insurance 408,345 334,288 74,057
Water 464,299 453,032 11,267
Rubbish removal 175,057 189,003 (13,946)
Advertising 678,149 430,427 247,722
Telephone 113,263 56,730 56,533
Sprinkler alarm service 93,662 102,558 (8,896)
Directory service 25,934 17,235 8,699
Interest on NYS utility tax 6,953 50,192 (43,239)
Sales and use tax 158,601 - 158,601
Interest on sales and use tax 72,655 4,758 67,897
Paging and other intercommunication 137,704 110,028 27,676
Dues 48,691 44,478 4,213
Utility tax (refund) (55,467) - (55,467)
Other expenses 280,516 287,762 (7,246)
Total expenses before overage rent 72,682,115 70,028,194 2,653,921
NET OPERATING PROFIT $30,167,523 $16,164,218 $14,003,305
OVERAGE RENT, 50% OF NET OPERATING PROFIT
IN EXCESS OF $1,000,000 $14,583,762 $7,582,109 $7,001,653
-36-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
1. During 2000 a leasing commission was paid to a company in which a partner
in Empire State Building Company ("Company") has a controlling interest.
2. Professional fees include payments to Wien & Malkin LLP. A partner in
Wien & Malkin LLP is a partner in Company.
3. Litigation
(a) On October 21, 1991, Julien J. Studley ("Studley"), the holder of a
$20,000 original participation in Empire State Building Associates
("Associates"), the master lessee of the Empire State Building, brought suit
against the Agents for Associates (Peter L. Malkin, Donald A. Bettex and Alvin
Silverman); Company; Harry B. Helmsley, a partner in Company; and Wien, Malkin
& Bettex, supervisor to Associates. The suit claimed that the defendants
engaged in breaches of fiduciary duty and acts of self-dealing in relation to
the Agents' solicitation of consents and authorizations of the Participants in
Associates in September, 1991, and in relation to other unrelated acts of the
Agents and the Sublessee. The suit is styled as a class action, but the Court
was not asked to grant class certification. The suit seeks relief including an
injunction and an accounting. In 1994, the action was dismissed against
Company and Mr. Helmsley. In 1995, the plaintiff amended the complaint to
allege, amongst other things, the underpayment by Company of overage rent due
to Associates. In June 1996, plaintiff applied for partial summary judgment.
In September 1996, defendants applied for summary judgment and dismissal of
the action in its entirety. By order and decision dated July 14, 1997, the
Court denied the plaintiff's motion for partial summary judgment, granted the
defendants' motion for summary judgment, and dismissed the action. The
plaintiff filed an appeal with respect to the foregoing order. By decision and
order entered April 2, 1998, the Appellate Division of the Supreme Court
unanimously affirmed the order dismissing the action. The plaintiff applied
for permission to appeal the Appellate Division's determination to the New
York Court of Appeals, and that application was denied by both the Appellate
Division and the Court of Appeals. The plaintiff filed a new complaint, which
alleges claims similar to those asserted in the previously dismissed
complaint. The defendants have applied for dismissal of the new complaint
based on the prior dismissal orders and on other grounds. In April 1999, the
Court granted defendants motion to dismiss the complaint. In May 1999, the
plaintiff filed a Notice of Appeal. On October 17, 2000, the Appellate
Division of the Supreme Court unanimously affirmed the dismissal of the
plaintiff's complaint. In January 2001, the Appellate Division denied
plaintiff's request to appeal to the Court of Appeals. On February 21, 2001,
plaintiff submitted an application requesting permission to appeal the
dismissal to the Court of Appeals. It is not possible at this time to predict
the outcome or range of potential loss, if any, which results from this
action. No provision for any liability that may result upon adjudication has
been made in the accompanying financial statements.
(b) In December 1994, Empire State Building Associates ("Associates") received
a notice of default ("Notice I") from Trump Empire State Partners ("Trump").
The Trump default notice to Associates claims that Associates is in violation
of its master lease because of extensive work Company has undertaken as part
of an improvement program that commenced before Trump reportedly acquired its
interest in the property in 1994. Trump's notice also complains that the
building is in need of repairs.
-37-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Litigation - Continued
On February 14, 1995, Associates and Company filed an action in the New York
State Supreme Court against Trump for a declaratory judgment that none of the
matters set forth in the notice of default constitutes a violation of the
master lease or sublease, and that the notice of default is without merit.
Associates' and Company's suit also seeks an injunction to prevent Trump from
implementing the notice of default.
On March 24, 1995, the New York State Supreme Court, in the foregoing action,
granted Associates a preliminary injunction against Trump. Trump, thereafter,
served two additional default notices ("Notices II and III") for which the
Court had granted additional injunctions against Trump.
The injunctions prohibit Trump from acting on its notices of default to
Associates, at any time, pending the prosecution of claims by Associates and
Company for a final judgment granting a permanent injunction and other relief
against the Trump defendants. On April 8, 1996, the Court granted Associates
additional injunctions against Trump, which further prohibit Trump from
seeking to terminate Associates' Master Lease. On August 19, 1996, the Court
denied a motion by Trump to set aside the injunction granted in favor of
Associates and against Trump on March 24, 1995. The Court has directed the
parties in the foregoing action to proceed with pretrial discovery. Trump has
appealed the Court's injunction orders, and the Appellate Court has
unanimously affirmed the appealed orders.
On February 15, 1995, Trump filed an action against Associates, Company, Wien
& Malkin LLP, Harry B. Helmsley, Helmsley Spear, Inc. (the management company
of the Building engaged by Company), and the Partners, in New York State
Supreme Court, alleging that the notice of default is valid and seeking
damages and related relief based thereon. On October 24, 1996, the Court
dismissed all of Trump's claims in their entirety as against Associates and
all other defendants in the foregoing action. Trump appealed this ruling and
the Appellate Court unanimously affirmed dismissal of Trump's claims.
In May 1995, Associates and Company filed a separate legal action against
Trump and various affiliated persons for breach of the Master Lease and
Sublease and for disparagement of the property in violation of Associates' and
Company's leasehold rights. The action was amended to include additional
claims by Associates and Company seeking a declaratory judgment that they may
act as an owner of the Property for purposes of making applications and
related activities pursuant to the New York City Building Code. Trump moved to
dismiss the claims concerning the Building Code. By decision and order of
October 24, 1996, the Court rejected Trump's motion and sustained Associates'
and Company's claims concerning the parties who may act as owner of the
Property under the Building Code. The Court directed that the claims should
proceed to trial. At the same time, the Court dismissed Associates' and
Company's claims against Trump and co-defendants for money damages. The
Appellate Court has affirmed that portion of the Court's order dismissing the
claims for money damages.
-39-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Litigation - Continued
On June 5, 1998, Associates and Company filed a motion for summary judgment
against Trump and various affiliates that they may act as owner of the
Property in dealing with the New York City Department of Buildings.
In a decision and order dated March 10, 1999, the court awarded partial
summary judgment to Associates and Company in the action, declaring that
Notices II and III were invalid and of no force and effect, and further
declaring that there was no legal or factual basis for many of the defaults
alleged in Notice I. The court also stated that Trump appeared to concede that
many of the remaining defaults alleged in Notice I had been corrected, and
that Trump would be permitted to inspect the Building within 30 days of the
date of the order to determine whether these claimed violations had in fact
been corrected. Finally, the court directed Trump to notify plaintiffs, within
30 days of the completion of its inspection, as to which defaults it claims
still exist, and the court granted plaintiffs' permission to renew their
motion for summary judgment with respect to any such remaining claims of
default within 30 days of the receipt of Trump's notice. Plaintiffs intend to
challenge any such claims of default by Trump and, if appropriate, to renew
their motion for summary judgment.
In its March 10, 1999 decision and order, the Court also awarded summary
judgment to Associates in the Companion Action, declaring that Associates is
entitled to act as "owner" of the Building for purposes of dealing with the
Buildings Department and enjoining Trump from interfering with such right.
On December 16, 1999, the New York State Supreme Court dismissed entirely the
attempt by Trump to terminate the leasehold. The dismissal order was entered
on January 12, 2000. Trump has appealed the Supreme Court's decision. On April
26, 2000, the appeal was dismissed. In June 2000, the Appellate Division
affirmed the judgement in favor of Associates and Company and against Trump.
In connection with the Studley litigation, Associates may be entitled to
reimbursement of its legal and accounting expenses from Company. Through
December 31, 2000, such legal and accounting expenses in connection with the
Studley suit have amounted to $1,542,393, of which $1,086,796 has been
advanced by Wien & Malkin LLP (a related party) to third-party professional
firms, and the balance represents the updated total of time - charges and
related disbursements for litigation services of Wien & Malkin LLP, all based
upon review of litigation records from inception.
The determination of the allocable share of the net legal and accounting costs
and disbursements chargeable to Company involve complex issues of fact and
law. Because of uncertainties concerning these issues, an amount for
professional fees payable by Company cannot be estimated, and therefore, have
not been provided for. Resolutions unfavorable to Company could result in
material liabilities and charges which have not been reflected in the
accompanying financial statements.
-40-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Litigation - Continued
(c) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled Robert D. Gould P.C. v.
Empire State Building Company, et al. This lawsuit, which is brought by a
tenant in the building, seeks $5,000,000 in damages for an alleged breach of
lease and tortious conduct. The Supreme Court entered an order precluding
plaintiff from proving damages by reason of its failure to serve an adequate
bill of particulars. Plaintiff's motion to vacate the order of preclusion was
denied, and its time to appeal from the order of preclusion expired. The
action has been transferred to the New York City Civil Court. Plaintiff has
taken no step to prosecute the case subsequent to the transfer. The case has
been dormant since 1996.
(d) Company is a defendant in an action pending in the United States District
Court for the Southern District of New York, entitled R. Gene Smith and Turbo
Vision Limited Partnership vs. Neil H. Kessner, Richard C. O'Conor, Neil H.
Kessner and Associates, Steven M. Durels, The Empire State Building Company
and Stephen A. Tole. This lawsuit, which is brought by the principals of a
tenant in the Empire State Building, alleges various claims for damages
against the six named defendants in connection with plaintiffs' alleged
construction and operation of an entertainment facility in the building. As
against the Company, plaintiffs allege fraudulent inducement in connection
with matters pertaining to the making of a lease agreement in connection with
the foregoing entertainment facility, and to the construction and operation of
the foregoing entertainment facility; and breach of the covenant of quiet
enjoyment contained in the lease, which was entered into in connection with
the foregoing entertainment facility. Plaintiffs allege that they expended
funds and incurred future liabilities in connection with the construction and
operation of the foregoing entertainment facility, and on each of their claims
against the Company, plaintiffs allege damages in an amount not less than
$5,000,000 and punitive damages in an amount not less that $10,000,000
(together with interest, attorney's fees, and the costs and disbursements of
the action).
The Company has denied the material allegations of the complaint against it
and has asserted various affirmative defenses. The Company has also asserted a
cross-claim against defendant Stephen A. Tole for indemnification and/or
contribution for the entire amount of any damages awarded in plaintiffs' favor
against the Company, as well as a cross-claim against defendants Tole, Neil H.
Kessner, Richard C. O'Conor, Steven M. Durels and Neil H. Kessner and
Associates, jointly and severally, for contribution and/or indemnification for
part or all of any such damages. The Company has furthermore filed a third-
party complaint against Helmsley-Spear, Inc., as an agent of the Company and
the employer of defendant Tole, asserting claims for indemnification,
contribution and/or respondeat superior for the entire amount, or part
thereof, of any damages awarded in plaintiffs' favor against the Company. The
co-defendants and the third-party defendant have denied the material
allegations of the cross-claims and third-party complaint.
By a Stipulation and Order of Dismissal filed April 10, 1998, the Federal
Court Action was dismissed, without prejudice, as against Company. (Because of
that dismissal, certain cross-claims and a third-party complaint asserted by
Company were also dismissed without prejudice.) Accordingly, the Federal Court
Action is no longer pending against Company.
-41-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Litigation - Continued
On April 23, 1998, certain of the plaintiffs in the Federal Court Action
(together with other parties) filed a new complaint in New York State court
against Company, which was principally the same as the complaint originally
filed in the Federal Court Action. Plaintiffs never served that state court
complaint on Company and have not prosecuted that action.
In August 1999, Company moved to dismiss the complaint as against it in its
entirety. By order dated November 9, 1999, the Supreme Court granted Company's
motion and dismissed the complaint. On December 8, 1999, plaintiffs filed a
Notice of Appeal of the dismissal order. The plaintiffs have failed to perfect
their appeal within the time allowed by law. Accordingly, no provision for any
liability that may result has been made in the accompanying financial
statements.
(e) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled New York Skyline Inc. v.
Empire State Building Company, Empire State Building Associates, Neil H.
Kessner, Helmsley-Spear, Inc. and Stephen A. Tole. This lawsuit which is
brought by a tenant in the building and commenced on December 23, 1997 seeks
at least $205,000,000 in damages. In its complaint, plaintiff-tenant asserts
thirteen causes of action (twelve of which are against the Company) in
connection with its leases and license agreements of space in the Building and
alleges that it is entitled to, among other things, specific performance as to
its alleged rights under its leases and licensing agreements with the Company,
a declaratory judgment as to the rights of the parties under the leases and
licensing agreements as well as any monies allegedly due plaintiff under those
agreements, as well as injunctive relief and additional money damages.
On or about February 5, 1998, plaintiff served an amended complaint which,
among other things, added Kessner & Cyruli, f/n/a Neil H. Kessner &
Associates, former landlord-tenant counsel for the building, and Eileen
Aluska, a former Helmsley-Spear, Inc. employee and Peter L. Malkin, as third
party-defendants. The amended complaint asserted eleven causes of action
against the Company, similar to those asserted in the original complaint.
By order and decision dated April 3, 1998 (the "April 3, 1998 Order"), the
Court granted plaintiff a Yellowstone injunction on the condition that
plaintiff pay $878,000 in back rent to the Company and ordered that a hearing
be held to determine the amount due on disputed rent and license fees.
Plaintiff made timely payment of the $878,000 to the Company. The hearing to
determine the amount due on disputed rent and license fees has not yet been
held.
On March 16, 1998 the Company moved to dismiss the second, third, fifth,
sixth, eighth, ninth and eleventh causes of action with respect to the amended
complaint. By decision and order dated February 25, 1999, the Court granted
the Company's motion to dismiss the second, fifth, sixth, eighth, ninth and
eleventh causes of action, and denied the Company's motion to dismiss the
third cause of action.
-42-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Litigation - Continued
By order to show cause dated December 22, 1998, plaintiff moved for a
temporary restraining order and preliminary injunction preventing the Company
from seeking to enforce a Notice of Default that the Company had served on
plaintiff with respect to certain space leased to plaintiff under the lease
dated as of March 1996 covering Rooms 209-214, 233-250 and 340-346 in the
Building. The Company has opposed the motion and oral argument on the motion
has not yet taken place.
Company and plaintiff entered into a settlement agreement (the "Settlement
Agreement") dated as of December 30, 1999. Pursuant to the Settlement
Agreement, the parties entered into a stipulation dismissing with prejudice
the plaintiff's action against Company and all of the other defendants.
Under the Settlement Agreement, plaintiff and each of the defendants in the
Action exchanged mutual general releases. In particular, the release from
Company released plaintiff from, among other things, "any and all claims for
rent, additional rent and/or license fees due through December 1999 under
[Skyline's] leases and license agreements with Company". The amount Company
claimed was owed from plaintiff through December 1999 exceeded $1.5 million.
The Company release to plaintiff does not cover plaintiff 's rent and license
obligations on a going forward basis under plaintiff 's remaining leases and
license agreement with Company. Those obligations continue.
Simultaneously with entering into the Settlement Agreement, Company and
plaintiff entered into a Surrender Agreement (dated as of December 30, 1999)
pursuant to which plaintiff surrendered to Company space it had leased on the
2nd and 3rd floor of the Empire State Building under a lease running through
July 2016.
As a further part of the Settlement Agreement, Company and plaintiff entered
into a Second Modification of License Agreement which changed certain of the
parties' obligations to each other under the existing license agreement and
may, under certain circumstances, lead to additional license fees being paid
to Company.
Finally, as part of the Settlement Agreement, Company and plaintiff entered
into a Third Amendment of Lease which changed an additional rent escalation
clause from an operating expense calculation to one using the Consumer Price
Index.
-43-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Litigation - Continued
(f) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled Magnifique Parfumes And
Cosmetics, Inc. d/b/a Perfumania v. Empire State Building Inc.
This is an action commenced on or about October 15, 1998 against Company
(incorrectly named in the action as "Empire State Building, Inc.").
This lawsuit which is brought by a tenant in the building seeks at least
$700,000 in damages. In its complaint, plaintiff-tenant alleges that the
Company breached its lease with plaintiff by, among other things, charging
plaintiff for electricity on a submetering basis at a rate which far exceeds
the rate permissable under the lease.
On or about February 2, 1999, the Company served an answer to the
complaint. The answer denied the material allegations of the complaint and
asserted eight affirmative defenses.
On or about February 22, 1999, the Company served an amended answer and
counterclaim. The amended answer denied the material allegations of the
complaint and asserted nine affirmative defenses.
The counterclaim against plaintiff and Perfumania, Inc. (as guarantor)
alleges that plaintiff breached certain obligations under the lease to pay
certain rent, electricity and operating expense charges and owes the Company
$37,312.11 in arrears under the lease.
In or about the Fall of 1999, the parties exchanged discovery demands.
Thereafter, the parties began engaging in settlement discussions and it was
agreed to hold discovery in abeyance. The settlement discussions were never
concluded and nothing further has occurred in the case to date.
In the event plaintiff revives this matter, Company intends to contest
the case vigorously while continuing settlement negotiations.
(g) Company is a defendant in an action instituted in the Supreme Court of
the State of New York, County of New York, entitled Duane Reade v. Walgreen
Co. and Empire State Building. This is an action which is brought by a tenant
in the building and commenced on February 14, 2000.
Plaintiff alleges, among other things, that Company misled plaintiff in
negotiations for a renewal of its current lease that expired on April 30,
2000, and wrongfully entered into a lease with Walgreen for the space
currently occupied by plaintiff.
The complaint seeks no money damages, but instead seeks a judgment
declaring that the lease between Walgreen and Company be deemed a renewal of
the lease between Company and plaintiff, and that plaintiff be substituted for
Walgreen as the tenant under the Walgreen lease. Alternatively, the complaint
seeks a judgment declaring that the Walgreen lease is a graft upon plaintiff's
existing lease for it's use and benefit and that plaintiff have all rights of
the tenant under the Walgreen lease.
-44-
Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
3. Litigation - Continued
(g) On March 20, 2000, Company and Walgreen each moved to dismiss the
Supreme Court Action as against them. While that motion was pending, on May 2,
2000, Company commenced a holdover proceeding against plaintiff in the Civil
Court of the City of New York, County of New York, seeking, among other
things, a judgment of possession of the premises and the issuance of a warrant
to remove plaintiff (the "Holdover Proceeding").
By order to show cause dated May 10, 2000, plaintiff moved in the
Supreme Court Action to remove and consolidate the Holdover Proceeding with
the Supreme Court Action.
By order dated June 6, 2000, the Supreme Court (i) denied plaintiff's
motion to remove and consolidate, (ii) stayed the Supreme Court Action pending
the determination of the Holdover Proceeding, and (iii) denied Company's and
Walgreen's motions to dismiss, without prejudice to renewal of such motions
after the determination of the Holdover Proceeding.
On June 23, 2000, plaintiff moved in the Holdover Proceeding for a
summary determination in its favor, or, in the alternative, for a stay of the
proceedings so that discovery could take place. Company cross-moved on August
4, 2000 for a summary determination in its favor. By decision and order dated
January 3, 2001 the Court (i) denied plaintiff's motion in its entirety and
(ii) denied Company's cross-motion.
On February 1, 2001, Company moved in the Holdover Proceeding to
reargue/renew its cross-motion for summary determination in its favor. On
February 12, 2001, plaintiff cross-moved for reargument of its June 23, 2000
motion. The motion and the cross-motion are currently sub judice.
4. Liabilities
The State of New York had asserted utility tax deficiencies of $1,528,816
through December 31, 1992 in connection with water, steam and non-metered
electricity rent inclusion charges to tenants, plus estimated accrued interest
of $797,713.
The Supreme Court, New York County granted summary judgment in favor of the
State, holding that the State utility tax applies to such rent inclusion
charges. The ruling was affirmed by the Appellate Division. Company sought
permission to appeal the Appellate Division's decision and order to the Court
of Appeals. The Court of Appeals denied Company's motion. In May, 1996,
Company entered into a settlement agreement with the State. Pursuant to the
terms of the settlement agreement, Company agreed to pay the State $979,109,
plus interest of approximately $605,000 through July 31, 1996. The State had
agreed to payment of the aforesaid liability over a period of four years,
commencing August, 1996, in equal monthly installments of $40,000, including
interest on the unpaid balance at the statutory rate. Final payment was made
in June 2000. The State has proposed a tax assessment for the years 1993
through 1995 in the sum of $243,270 plus accrued interest of approximately
$138,100 through December 31, 2000. The foregoing proposed assessment has not
yet been finalized.
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Empire State Building and Observatory
NOTES TO COMBINED STATEMENT OF INCOME
NOTE
4. Liabilities - Continued
The City of New York had asserted a utility tax deficiency in the amount of
$277,125 against Company, through December 31, 1994, in connection with water,
steam and non-metered electricity rent inclusion charges to tenants, plus
accrued interest or approximately $345,603 through April 30, 2000. Company was
also liable for an undetermined amount of additional New York City Utility Tax
for periods after December 31, 1994. Under a settlement proposed by New York
City to all taxpayers, Company agreed to settle utility taxes for all years by
paying the tax only for the year 1997. The City reviewed the records of
Company for 1997 and determined that no additional utility tax is payable for
periods prior to January 1, 1998. Accordingly, the prior proposed assessment
of $277,125 plus interest thereon has been cancelled.
The imposition of both New York State and New York City utility taxes on non-
metered electricity rent inclusion charges was repealed effective January 1,
1998.
Wien & Malkin LLP and Peter L. Malkin are engaged in a dispute with Helmsley
Spear, Inc. concerning the management, leasing and supervision of the
Company's property. In this connection, certain legal and professional fees
and other expenses have been paid and incurred and additional costs are
expected to be incurred. The Company's allocable share of such costs is as yet
undetermined. Accordingly, the Company has not provided for the expense and
related liability with respect to such cost in these financial statements.
5. Utility tax reduction
The reduction in utility tax of $602,434 represents the difference between the
amount of New York State utility tax that had been accrued as opposed to the
proposed tax for the years 1993 through 1995. The reduction in utility tax is
attributable to a settlement negotiated by Wien & Malkin LLP, which has not
yet been finalized.
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EMPIRE STATE BUILDING ASSOCIATES
OMITTED SCHEDULES
The following schedules have been omitted as not applicable in the
present instance:
SCHEDULE I - Condensed financial information of registrant.
SCHEDULE II - Valuation and qualifying accounts.
SCHEDULE IV - Mortgage loans on real estate.
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SCHEDULE III
EMPIRE STATE BUILDING ASSOCIATES
Real Estate and Accumulated Depreciation
December 31, 2000
Column
A Description Leasehold on Empire State Building
located at 350 Fifth Avenue,
New York, New York.
B Encumbrances................................................ None
C Initial cost to company
Leasehold................................................. $39,000,000
D Cost capitalized subsequent to acquisition.................. None
E Gross amount at which carried at
close of period
Leasehold................................................ $39,000,000(a)
F Accumulated amortization.................................... $36,498,362(b)
G Date of construction 1931
H Date acquired December 27, 1961
I Life on which leasehold amortization in
latest income statements is computed 25 years from January 1,
1988 (see
Note 2 of Notes to Financial
Statements).
(a) There have been no changes in the carrying values of real estate for the
years ended December 31, 2000, December 31, 1999 and December 31, 1998.
The costs for federal income tax purposes are the same as for financial
statement purposes.
(b) Accumulated amortization
Balance at January 1, 1998 $35,872,958
Amortization:
F/Y/E 12/31/98 $208,468
12/31/99 208,468
12/31/00 208,468 625,404
Balance at December 31, 2000 $36,498,362
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SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934, Registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
The individual signing this report on behalf of
Registrant is Attorney-in-Fact for Registrant and each of the
Partners in Registrant, pursuant to Powers of Attorney, dated
August 6, 1996 and May 14, 1998 (collectively, the "Power").
EMPIRE STATE BUILDING REGISTRANT
(Registrant)
By /s/Stanley Katzman
Stanley Katzman, Attorney-in-Fact
Date: April 16, 2001
Pursuant to the requirements of the Securities Exchange
Act of 1934, this report has been signed below by the following
person as Attorney-in-Fact for each of the Partners in Registrant,
pursuant to the Power, on behalf of Registrant and as a Partner in
Registrant on the date indicated.
By /s/ Stanley Katzman
Stanley Katzman, Attorney-in-Fact*
Date: April 16, 2001
_________________________________
* Mr. Katzman supervises accounting functions for Registrant.
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EXHIBIT INDEX
Number Document Page*
3(a) Registrant's Partnership Agreement dated July
11, 1961, filed as Exhibit No. 1 to
Registrant's Registration Statement on Form
S-1 as amended (the "Registration Statement")
by letter dated August 8, 1962 and assigned
File No. 2-18741, is incorporated by reference
as an exhibit hereto.
3(b) Amended Business Certificate of Registrant
filed with the Clerk of New York County on
August 7, 1998 reflecting a change in the
Partners of Registrant which was filed as
Exhibit 3(b) to Registrant's 10-Q-A for the
quarter ended September 30, 1998 and is
incorporated by reference as an exhibit
hereto.
4 Registrant's form of Participating Agreement,
filed as Exhibit No. 6 to the Registration
Statement by letter dated August 8, 1962 and
assigned File No. 2-18741, is incorporated by
reference as an exhibit hereto.
10(a) Mortgage dated December 21, 1951 from Imperium
Corporation to Prudential Insurance Company of
America ("Prudential"), filed by letter dated
March 31, 1981 (Commission File No. 0-827) as
Exhibit 10(a) to Registrant's Form 10-K for
the fiscal year ended December 31, 1980, is
incorporated by reference as an exhibit
hereto.
10(b) Modification of Indenture of Lease dated
December 27, 1961 between Prudential and
Registrant filed by letter dated March 31,
1981 (Commission File No. 0-827) as Exhibit
10(b) to Registrant's Form 10-K for the fiscal
year ended December 31, 1980, is incorporated
by reference as an exhibit hereto.
____________________________________________
* Page references are based on sequential numbering
system.
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10(e) Modification and Extension Agreement, dated
October 26, 1964 between The Bowery Savings
Bank and Celeritas Realty Corp., filed by
letter dated March 31, 1981 (Commission File
No. 0-827) as Exhibit 10(e) to Registrant's
Form 10-K for the fiscal year ended December
31, 1980, is incorporated by reference as an
exhibit hereto.
13(a) Letter to Participants dated April 16, 2001
and supplementary financial reports for the
fiscal year ended December 31, 2000. The
foregoing material shall not be deemed "filed"
with the Commission or otherwise subject to
the liabilities of Section 18 of the
Securities Exchange Act of 1934.
24 Powers of Attorney dated August 6,1996 and May
14, 1998, between the Partners of Registrant
and Richard A. Shapiro and Stanley Katzman,
filed as Exhibit 24 to Registrant's 10-Q for
the quarter ended March 31, 1998 and is
incorporated by reference as an exhibit
hereto.
____________________________________________
* Page references are based on sequential numbering
system.
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