10-K 1 empdocu.txt 10-K DOCUMENT 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. -2- 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. -3- 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 -4- 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. -5- 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. -7- 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 -9- 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. -10- 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 -11- 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. -12- 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. -13- 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. -45- 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. -46- 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. -47- 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 -48- 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. -49- 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. -50- 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. -51-