As filed with the Securities and Exchange Commission on February 13, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EMPIRE STATE REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland | 6798 | 37-1645259 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
One Grand Central Place
60 East 42nd Street
New York, New York 10165
(212) 953-0888
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Anthony E. Malkin
Chairman, Chief Executive Officer and President
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With copies to:
Arnold S. Jacobs, Esq. Steven A. Fishman, Esq. Proskauer Rose LLP Eleven Times Square New York, New York 10036 (212) 969-3000 |
Larry P. Medvinsky, Esq. Jason D. Myers, Esq. Clifford Chance US LLP 31 West 52nd Street New York, New York 10019 (212) 878-8000 |
Approximate date of commencement of the proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
CALCULATION OF REGISTRATION FEE
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Title of each Class of Securities to be Registered |
Proposed Maximum Aggregate Offering Price(1)(2)(3) |
Amount of Registration Fee | ||
Class A Common Stock, par value $.01 per share |
$1,362,135,000 | $156,101 | ||
Total |
$156,101 | |||
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(1) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o), promulgated under the Securities Act of 1933, as amended. |
(2) | Represents the maximum aggregate offering price of shares of Class A common stock issuable upon consummation of the transactions described herein assuming the aggregate purchase price equals the aggregate exchange value of such shares. |
(3) | Represents the shares of Class A common stock that will be issued to participants in the three subject LLCs pursuant to this Registration Statement. Participants also may elect at their option to receive cash, to the extent available, subject to a cap. To the extent cash is paid to certain participants in lieu of Class A common stock, the proposed maximum aggregate offering price of the Class A common stock will be proportionately reduced. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Empire State Building Associates L.L.C. |
60 East 42nd St. Associates L.L.C. | 250 West 57th St. Associates L.L.C. |
One Grand Central Place
60 East 42nd Street
New York, New York 10165
NOTICE OF CONSENT SOLICITATION TO PARTICIPANTS
, 2012
Malkin Holdings LLC, the supervisor of each limited liability company listed above, requests that you consent to the following:
Proposed consolidation of your subject LLC into Empire State Realty Trust, Inc. As described in the attached Prospectus/Consent Solicitation Statement, Malkin Holdings LLC, as supervisor, proposes a consolidation of certain office and retail properties in Manhattan and the greater New York metropolitan area owned by Empire State Building Associates L.L.C., 60 East 42nd St. Associates L.L.C. and 250 West 57th St. Associates L.L.C., or the subject LLCs, and certain private entities supervised by the supervisor, and certain related management businesses into Empire State Realty Trust, Inc., or the company. The consolidation is conditioned, among other things, upon the closing of the initial public offering of the companys Class A common stock. The company will issue to each of the participants in the subject LLCs a specified number of shares of Class A common stock that the company expects to be listed on the New York Stock Exchange or, at each participants option, cash for up to [12-15]% of the shares of Class A common stock issuable to a participant, as described herein. After the series of transactions in which the subject LLCs will be consolidated into the company, the company will own, through direct and indirect subsidiaries, the assets of the subject LLCs and the assets of the private entities, along with certain related management businesses. There are 22 private entities involved in the consolidation, including the operating lessees of each of the subject LLCs, from which all required consents to the consolidation have previously been obtained. Attached to the supplement for each subject LLC as Appendix B is the contribution agreement for each subject LLC, which describes the terms of the consolidation in detail. Only the participants holding participation interests in a subject LLC during the consent solicitation period are entitled to notice of, and to vote FOR or AGAINST, the proposed consolidation. For the reasons the supervisor believes this proposal is fair and reasonable, see Background of and Reasons for the Consolidation.
Proposal to authorize the supervisor to sell or contribute the property interests in a third-party portfolio transaction. As a potential alternative to the consolidation, the supervisor requests that the participants consent to the sale or contribution of the subject LLCs property interests as part of a sale or contribution of the properties owned by the subject LLCs and the private entities as a portfolio to a third party. The third-party portfolio transaction would be undertaken only if the supervisor determines that the offer price includes what the supervisor believes is an adequate premium above the value that is expected to be realized over time from the consolidation and certain other conditions are met. For the reasons the supervisor believes this proposal is fair and reasonable, see Third-Party Portfolio Proposal.
Voluntary pro rata reimbursement program for expenses of legal proceedings with former property manager and leasing agent. In addition, the participants are being asked to consent to a voluntary pro rata reimbursement to the supervisor and Peter L. Malkin for the prior advances of all costs, plus interest, incurred in connection with litigations and arbitrations with the former property manager and leasing agent of the properties owned by the subject LLCs. For the reasons the supervisor believes this proposal is reasonable, see Voluntary Pro Rata Reimbursement Program for Expenses of Legal Proceedings with Former Property Manager and Leasing Agent.
The supervisor invites you to vote using the enclosed consent form because it is important that your participation interest in your subject LLC be represented. Please sign, date and return the enclosed consent form in the accompanying postage-paid envelope. You also may revoke your consent to the consolidation, the third-party portfolio proposal, or both, at any time in writing before the later of the date that consents from participants equal
to the percentage required to approve the consolidation and the third-party portfolio proposal, as applicable, as set forth later in the attached Prospectus/Consent Solicitation Statement are received by your subject LLC and the 60th day after the date of the attached Prospectus/Consent Solicitation Statement.
Malkin Holdings LLC
By: Peter L. Malkin Chairman |
Anthony E. Malkin President |
The attached Prospectus/Consent Solicitation Statement is dated , 2012 and is being mailed to participants on or about , 2012.
The information in this Prospectus/Consent Solicitation Statement is not complete and may be changed. A registration statement relating to the securities has been filed with the Securities and Exchange Commission. Empire State Realty Trust, Inc. may not sell the securities offered by this Prospectus/Consent Solicitation Statement until the registration statement filed with the Securities and Exchange Commission becomes effective. This Prospectus/Consent Solicitation Statement is not an offer to sell these securities and Empire State Realty Trust, Inc. is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED FEBRUARY 13, 2012
PROSPECTUS/CONSENT SOLICITATION STATEMENT
shares of Class A common stock, par value $.01 per share
If you are a participant in any of the following subject LLCs, your vote is very important:
Empire State Building Associates L.L.C. |
60 East 42nd St. Associates L.L.C. |
250 West 57th St. Associates L.L.C. |
Malkin Holdings LLC, the supervisor of three publicly-registered entities, Empire State Building Associates L.L.C., 60 East 42nd St. Associates L.L.C. and 250 West 57th St. Associates L.L.C., or the subject LLCs, requests that you, as a holder of a participation interest in one or more of the subject LLCs, vote on whether to approve the proposed consolidation of the subject LLC in which you are a participant into Empire State Realty Trust, Inc., or the company, as part of a consolidation of office and retail properties in Manhattan and the greater New York metropolitan area owned by the subject LLCs and the private entities supervised by the supervisor, along with certain related management businesses, into the company, as described in more detail herein. Such transaction is referred to herein as the consolidation. The principals of the supervisor include Peter L. Malkin and Anthony E. Malkin.
The supervisor believes you will benefit from this consolidation through newly created opportunities for liquidity, enhanced operating and financing abilities and efficiencies, combined balance sheets, increased growth opportunities, enhanced property diversification, and continued leadership by the principals of the supervisor under the accountability of the governance structure of a reporting company with the U.S. Securities and Exchange Commission, or the SEC, with a board of directors consisting predominantly of independent directors. Anthony E. Malkin will be the only management member of the board of directors.
The supervisor believes that the consolidation is the best way for participants to achieve liquidity and maximize the value of their investment in their subject LLC. Following the consolidation, participants may liquidate their investments and realize current values in cash as and when they desire (subject to the restrictions of the applicable U.S. federal and state securities laws and after expiration of the lock-up period as described in this prospectus/consent solicitation) or may hold shares of Class A common stock they receive in the company in which certain executives of the supervisor will be members of the senior management team and Anthony E. Malkin, an executive and principal of the supervisor, will be Chairman, Chief Executive Officer, President and a director of the company.
The supervisor recommends that you vote FOR the consolidation. The Malkin Holdings group, (as defined herein) will receive substantial benefits from the consolidation and have conflicts of interest making this recommendation. See Conflicts of Interest.
As a potential alternative to the consolidation, the supervisor also requests that the participants consent to the sale or contribution of the subject LLCs property interests as part of a sale or contribution of the properties owned by the subject LLCs and the private entities as a portfolio to an unaffiliated third party. While the supervisor believes the consolidation represents the best opportunity for participants to achieve liquidity and to maximize the value of their investment, the supervisor believes it also is in the best interest of all participants for the supervisor to have the flexibility and discretion, subject to certain conditions, to accept an offer for the portfolio of properties from an unaffiliated third party if the supervisor determines that the offer price includes what the supervisor believes is an adequate premium above the value that is expected to be realized over time from the consolidation.
The supervisor recommends that you vote FOR the third-party portfolio transaction proposal. The Malkin Holdings group will receive substantial benefits from the consolidation and have conflicts of interest making this recommendation. See Conflicts of Interest.
Participants also are being asked to consent to a voluntary pro rata reimbursement program pursuant to which the supervisor and Peter L. Malkin, a principal of the supervisor, will be reimbursed for the prior advances of all costs, plus interest, incurred in connection with the legal proceedings required to remove and replace the former property manager and leasing agent. The supervisor believes that the voluntary pro rata reimbursement program is fair and reasonable because the successful resolution of the legal proceedings allowed the properties owned by the subject LLCs and certain of the private entities to participate in a renovation and repositioning turnaround program conceived and implemented by the supervisor. The estate of Leona M. Helmsley, or the Helmsley estate, as part of an agreement with the supervisor covering this and other matters, has paid the voluntary pro rata reimbursement to the supervisor for its pro rata share of costs advanced, plus interest, which totaled $5,021,048.
This solicitation of consents expires at 5:00 p.m., Eastern time on , 2012, unless the supervisor extends the solicitation period for one or more proposals.
The Wien group, which consists of each of the lineal descendants of Lawrence A. Wien, including Peter L. Malkin and Anthony E. Malkin (including spouses of such descendants), any estates of any of the foregoing, any trusts now or hereafter established for the benefit of any of the foregoing, or any corporation, partnership, limited liability company or other legal entity controlled by Anthony E. Malkin for the benefit of any of the foregoing, collectively owns participation interests in the subject LLCs and has advised that it will vote in favor of the consolidation and the third-party portfolio proposal. These participation interests represent the following percentage ownership for each subject LLC: 8.5921% for Empire State Building Associates L.L.C., 8.7684% for 60 East 42nd St. Associates L.L.C. and 7.3148% for 250 West 57th St. Associates L.L.C.
The supervisor and the Malkin Holdings group receive substantial benefits and from inception have had conflicts of interest in connection with the subject LLCs, including in connection with the consolidation or a third-party portfolio transaction. There are material risks and potential disadvantages associated with the consolidation or a third-party portfolio transaction. The supervisor and the Malkin Holdings group will receive substantial benefits in connection with the consolidation or a third-party portfolio transaction. See Risk Factors beginning on page 60 and Conflicts of Interest beginning on page 184.
THE SUPERVISOR BELIEVES THAT THE CONSOLIDATION PROVIDES SUBSTANTIAL BENEFITS AND IS FAIR TO THE PARTICIPANTS IN EACH SUBJECT LLC AND RECOMMENDS THAT ALL PARTICIPANTS VOTE FOR THE CONSOLIDATION. SEE BACKGROUND OF AND REASONS FOR THE CONSOLIDATIONTHE SUPERVISORS REASONS FOR PROPOSING THE CONSOLIDATION.
THE SUPERVISOR BELIEVES IT IS IN THE BEST INTERESTS OF THE PARTICIPANTS TO PROVIDE THE SUPERVISOR WITH THE AUTHORITY TO APPROVE A THIRD-PARTY PORTFOLIO TRANSACTION AS AN ALTERNATIVE TO THE CONSOLIDATION AND RECOMMENDS THAT ALL PARTICIPANTS VOTE FOR THE THIRD-PARTY PORTFOLIO PROPOSAL. SEE THIRD PARTY PORTFOLIO PROPOSAL FOR THE SUPERVISORS REASONS FOR RECOMMENDING APPROVAL OF THE PROPOSAL.
THE SUPERVISOR BELIEVES THAT THE VOLUNTARY PRO RATA REIMBURSEMENT PROGRAM IS FAIR AND REASONABLE AND RECOMMENDS THAT ALL PARTICIPANTS WHO HAVE NOT PREVIOUSLY CONSENTED TO THE VOLUNTARY PRO RATA REIMBURSEMENT PROGRAM CONSENT TO THE PROPOSAL. SEE VOLUNTARY PRO RATA REIMBURSEMENT PROGRAM FOR EXPENSES OF LEGAL PROCEEDINGS WITH FORMER PROPERTY MANAGER AND LEASING AGENT FOR A DISCUSSION OF THE SUPERVISORS REASONS FOR RECOMMENDING APPROVAL OF THE PROPOSAL AND THE BENEFITS TO THE SUPERVISOR.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the Class A common stock or passed upon the accuracy or adequacy of this Prospectus/Consent Solicitation Statement. Any representation to the contrary is a criminal offense.
After you read this Prospectus/Consent Solicitation Statement, the company and the supervisor urge you to read the accompanying supplement for your subject LLC. The supplement contains information particular to your subject LLC. This information is material in your decision whether to vote FOR or AGAINST the consolidation.
THIS PROSPECTUS/CONSENT SOLICITATION IS AUTHORIZED FOR DELIVERY TO PARTICIPANTS ONLY WHEN ACCOMPANIED BY ONE OR MORE SUPPLEMENTS RELATING TO THE SUBJECT LLCS IN WHICH SUCH PARTICIPANTS HOLD PARTICIPATION INTERESTS. SEE WHERE YOU CAN FIND MORE INFORMATION.
WHO CAN HELP ANSWER YOUR QUESTIONS?
If you have more questions about the proposed consolidation or would like additional copies of this Prospectus/Consent Solicitation Statement or the supplement relating to your subject LLC(s) (which will be provided at no cost), you should contact the person designated on the consent form sent to you.
To obtain timely delivery, you should request this information no later than , 2012.
The date of this Prospectus/Consent Solicitation Statement is , 2012.
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EXPLANATORY NOTE: The information concerning the appraisal by Duff & Phelps LLC, the independent valuer, contained in this Registration Statement on Form S-4 is based on the preliminary appraisal by the independent valuer as of July 1, 2011 and the information concerning the fairness opinion of Duff & Phelps LLC is based on the draft form of fairness opinion provided by the independent valuer. The valuation will be updated as of a date in closer proximity to the effective date of this Registration Statement on Form S-4, and the fairness opinion is expected to be delivered as of a date in closer proximity to such effective date.
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IMPORTANT NOTICE: The contents of this Prospectus/Consent Solicitation Statement were not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding U.S. federal income tax penalties that may be imposed on the taxpayer. The following was written to support the promotion or marketing of the transactions addressed by this prospectus/consent solicitation. Each taxpayer should seek advice based on the taxpayers particular circumstances from an independent tax advisor.
The company uses market data and industry forecasts and projections throughout this Prospectus/Consent Solicitation Statement, and in particular in the section entitled Business of the Subject LLCs. The company has obtained substantially all of this information from a market study prepared for the company by Rosen Consulting Group, or RCG, a nationally recognized real estate consulting firm in January 2012. The company has paid RCG a fee for such services. Such information is included herein in reliance on RCGs authority as an expert on such matters. See Experts. In addition, the company has obtained certain market data from publicly available information and industry publications. These sources generally state that the information they provide has been obtained from sources believed to be reliable. Forecasts are based on industry surveys and the preparers expertise in the industry and there is no assurance that any of the projected amounts will be achieved. The company believes this data others have compiled are reliable, but it has not independently verified this information. Any forecasts prepared by RCG are based on data (including third party data), models and experience of various professionals, and are based on various assumptions, all of which are subject to change without notice.
The term greater New York metropolitan area is used herein to refer only to Fairfield County, Connecticut and Westchester County, New York. The manner in which the company defines its property markets and submarkets differs from how RCG has done so in its market study included herein. Further, RCGs definition of the New York metropolitan area differs from the companys definition of the greater New York metropolitan area. RCGs definition includes Putnam County and Rockland County in New York and Bergen County, Hudson County, and Passaic County in Northern New Jersey and excludes Fairfield County in Connecticut.
Unless the context otherwise requires or indicates, references in this Prospectus/Consent Solicitation Statement, which is referred to herein as the prospectus/consent solicitation, to:
(i) | the subject LLCs refers to Empire State Building Associates L.L.C., 60 East 42nd St. Associates L.L.C. and 250 West 57th St. Associates L.L.C., |
(ii) | the private entities refer to the privately-held entities supervised by the supervisor, which are all of the entities, other than the subject LLCs, listed in the chart under the section SummaryThe Subject LLCs, the Private Entities and the Management Companies, which will be included in the consolidation, |
(iii) | the company refers to Empire State Realty Trust, Inc. (formerly known as Empire Realty Trust, Inc.), a Maryland corporation, together with its consolidated subsidiaries, including Empire State Realty OP, L.P. (formerly known as Empire Realty Trust, L.P.), a Delaware limited partnership, which is referred to herein as the operating partnership, after giving effect to the series of transactions involving the consolidation of the subject LLCs and the private entities described in this prospectus/consent solicitation that have consented to the consolidation and a combination of (a) Malkin Holdings LLC, a New York limited liability company that acts as the supervisor of, and performs various asset management services and routine administration with respect to, the subject LLCs and certain of the private entities (as discussed in this prospectus/consent solicitation), which is referred to herein as the supervisor; (b) Malkin Properties, L.L.C., a New York limited liability company that serves as the manager and leasing agent to certain of the private entities in Manhattan, (c) Malkin Properties of New York, L.L.C., a New York limited liability company that serves as the manager and leasing agent to certain of the private entities located in Westchester County, New York, (d) Malkin Properties of |
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Connecticut, Inc. a Connecticut corporation that serves as the manager and leasing agent to certain of the private entities in the State of Connecticut and (e) Malkin Construction Corp., a Connecticut corporation that is a general contractor and provides services to the private entities and third parties (including certain tenants at the properties owned by the private entities), which collectively are referred to herein as the management companies, |
(iv) | the properties refers to the subject LLCs direct or indirect fee ownership interests in the Empire State Building, One Grand Central Place and 250 West 57th Street, respectively, |
(v) | the properties of the company and the portfolio refer to the properties, the other assets of the subject LLCs, the ownership interests of the private entities in their properties and the other assets of the private entities, |
(vi) | the agents refer to holders of the membership interests in the subject LLCs for the benefit of participants in the agents participating group; each of the agents is an affiliate of the supervisor, |
(vii) | the participants refer to the holders of participation interests in the membership interests held by the agents and, as applicable, investors in the private entities, |
(viii) | the participation interests refer to the beneficial ownership interests of participants in the membership interest of the subject LLCs held by an agent for the benefit of participants and, as applicable, membership or partnership interests or the beneficial interests therein held by investors in the private entities, |
(ix) | common stock and shares of common stock refer to both shares of the companys Class A common stock, par value $0.01, and Class B common stock, par value $0.01 per share, unless otherwise indicated, |
(x) | the IPO refers to the initial public offering of the Class A common stock of the company, and IPO price refers to the price per share of Class A common stock in the IPO, |
(xi) | operating partnership units refer to the operating partnerships limited partnership interests, and |
(xii) | organizational documents refer to the limited liability company agreement, the participation agreements and the terms of any voluntary capital transaction override program and voluntary pro rata reimbursement programs for each subject LLC, to the extent applicable. |
All references to the enterprise value refer to the value of the company after completion of the consolidation determined in connection with the IPO by the company in consultation with the investment banking firms managing the IPO and prior to the issuance of Class A common stock in the IPO and any issuance of Class A common stock pursuant to equity incentive plans.
All references to the aggregate exchange value refer to the aggregate exchange value of the subject LLCs, the private entities and the management companies based on the appraisal by Duff & Phelps, LLC, the independent valuer.
All references (other than information labeled as pro forma information, including the pro forma financial statements) to the number of shares of common stock, on a fully-diluted basis, issued in the consolidation refer to the number of shares of Class A common stock and Class B common stock issued or received in the consolidation, prior to the issuance of Class A common stock in the IPO and pursuant to any incentive plans, assuming that (i) the enterprise value in connection with the IPO equals the aggregate exchange value, (ii) the offering price per share in the IPO used herein which is used solely for illustrative purposes equals a hypothetical $10 per share, (iii) all of the subject LLCs, the private entities and the management companies participate in the consolidation, (iv) no cash is paid to the participants in the subject LLCs, the private entities or the management companies in the consolidation, (v) no shares of Class A common stock are issued to the supervisor pursuant to the voluntary pro rata reimbursement program, (vi) no fractional shares are issued and (vii) all operating partnership units issued in the consolidation are redeemed on a one-for-one basis and all shares of Class B common stock issued in the consolidation are converted on a one-for one basis for shares of Class A common stock.
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The enterprise value will be determined by the market conditions and the performance of the portfolio at the time of the IPO. The enterprise value may be higher or lower than the aggregate exchange value. The aggregate exchange value used herein is based on the appraisal prepared by the independent valuer. Historically, in a typical initial public offering of a REIT, the enterprise value and initial public offering price are at a discount to the net asset value of the REITs portfolio of properties, which in turn may be above or below the aggregate exchange value.
All references to distributions to participants assume that all amounts payable under the voluntary pro rata reimbursement program are paid out of cash distributions from the subject LLCs and the private entities, as applicable and that no shares of Class A common stock are issued to the supervisor for amounts due under the voluntary pro rata reimbursement program.
The supervisor has made certain of these assumptions to permit the presentation of information in tables in this prospectus/consent solicitation on a consistent basis. For example, while throughout this prospectus/consent solicitation the supervisor has assumed for purposes of this presentation of information that no cash is paid, cash will be paid to non-accredited investors in the private entities and to participants in the subject LLCs and to certain investors in the private entities that are charitable organizations and exempt from New York City real property transfer tax and elect to receive cash pursuant to the cash option described herein.
All references to the stockholders refer to the holders of Class A common stock and Class B common stock of the company.
All references to the Malkin Family refer to Anthony E. Malkin, Peter L. Malkin, each of their lineal descendants (including spouses of any of the foregoing), any estates of any of the foregoing, any trusts now or hereafter established for the benefit of any of the foregoing, or any corporation, partnership, limited liability company or other legal entity controlled by Anthony E. Malkin for the benefit of any of the foregoing.
All references to the Malkin Holdings group refer to the Malkin Family and Thomas N. Keltner, Jr., and his spouse.
All references to the Wien group refer to each of the lineal descendants of Lawrence A. Wien, including Peter L. Malkin and Anthony E. Malkin (including spouses of such descendants), any estates of any of the foregoing, any trusts now or hereafter established for the benefit of any of the foregoing, or any corporation, partnership, limited liability company or other legal entity controlled by Anthony E. Malkin for the benefit of any of the foregoing.
For demonstrative purposes, the supervisor has assigned a hypothetical IPO offering price of $10 per share. That value is strictly hypothetical and is for illustrative purposes only.
All references to the property and assets owned by the company upon completion of the consolidation refer to the company upon completion of the consolidation, without giving effect to the IPO, and assuming that all required consents of the participants in the subject LLCs have been obtained and all of the properties and assets to be acquired from the subject LLCs, the private entities and the management companies pursuant to the consolidation have been acquired.
All references to a third-party portfolio transaction refer to the sale or contribution of the subject LLCs property interests and other assets as part of a sale or contribution of the properties owned by the subject LLCs and the private entities as a portfolio to a third party. The description of the company in this prospectus/consent solicitation assumes that all of the properties and assets to be acquired from the subject LLCs, the private entities and the management companies pursuant to the consolidation have been acquired by the company rather than a third party pursuant to a third-party portfolio transaction.
Certain terms and provisions of various agreements are summarized in this prospectus/consent solicitation. These summaries are qualified in their entirety by reference to the complete text of any such agreements, which
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are either attached as exhibits or appendices to this prospectus/consent solicitation or the supplement for your subject LLC in the form in which they are expected to be signed (but subject to change, including potentially significant changes, as described below) or filed as an exhibit to the Registration Statement on Form S-4 of which this prospectus/consent solicitation is a part. The parties to such agreements may make changes (including changes that may be deemed material) to the forms of the agreements attached as appendices or exhibits hereto, contained in the applicable supplement or filed as exhibits to the Registration Statement on Form S-4.
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THE CONSOLIDATION
Q: | What am I being asked to approve? |
A: The supervisor, which is an affiliate of Peter L. Malkin and Anthony E. Malkin, is submitting the following proposals for your approval:
| A consolidation of your subject LLC and certain office and retail properties in Manhattan and the greater New York metropolitan area owned by the subject LLCs and the private entities, all of which are supervised by the supervisor, and certain related management businesses, into the company, which is intended to qualify for taxation as a real estate investment trust for U.S. federal income tax purposes, which is referred to herein as a REIT. |
| As a potential alternative to the consolidation, the sale or contribution of the subject LLCs property interests as part of a sale or contribution of the properties owned by the subject LLCs and the private entities as a portfolio to a third party if the supervisor determines that the offer price includes what the supervisor believes is an adequate premium above the value that is expected to be realized over time from the consolidation and certain other conditions are met. |
| Voluntary pro rata reimbursement to the supervisor and Peter L. Malkin for the prior advances of all costs, plus interest, incurred in connection with litigations and arbitrations with the former property manager and leasing agent of the property. |
Each of these proposals is subject to a separate consent, and approval of each proposal is not dependent on approval of any other proposal.
Q: | Who is the supervisor? |
A: The supervisor of the subject LLCs, Malkin Holdings LLC, provides asset management services for, and supervises the operations of, the subject LLCs. Anthony E. Malkin and Peter L. Malkin are principals of the supervisor. The supervisor also provides similar services to the private entities, including the private entities that hold operating lease interests in the properties owned by the subject LLCs.
Q: | Why is the supervisor proposing the consolidation? |
A: The supervisor believes this transaction represents the logical next step of value creation after years of action under the supervisors leadership to preserve, restore, and enhance your investment in the subject LLC. Included in that history is a challenging time, which began with litigation commenced in 1997 by Peter L. Malkin and the supervisor to remove Helmsley-Spear, Inc., which is referred to herein as the former property manager and leasing agent (after it was sold by entities controlled by Leona M. Helmsley) as property manager and leasing agent of the properties owned by the subject LLCs and other properties which are now included in the plans for this consolidation.
Since the successful resolution of that litigation, the supervisor has overseen the engagement by the subject LLCs of independent property management and leasing agents and the transformation of the Empire State Building to a self management structure, retaining a third party agent for leasing only; developed and is in the process of effecting a comprehensive renovation and repositioning program for improving the physical condition of and upgrading the credit quality of tenants at the property, and raised the properties profile as part of a well regarded portfolio brand. The supervisor believes that it is an opportune time for the subject LLCs to take advantage of the opportunity to participate in the consolidation which will afford participants administrative and operating efficiencies, as well as better value protection through diversification.
Additionally, the supervisor believes the consolidation provides value enhancement through better access to capital and options for liquidity for investors who so desire.
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The supervisor has reviewed this transaction carefully and believes that current and anticipated property results provide favorable prospects for the consolidation. The supervisor will consider the capital market conditions at the time the IPO is ready to commence, but the supervisor is confident that a well located, well run, well capitalized portfolio of office and retail properties in Manhattan and in the greater New York metropolitan area is a desirable portfolio for an IPO. The consolidation and IPO will launch the company as a public company with its Class A common stock expected to be listed on the New York Stock Exchange, which is referred to herein as the NYSE, upon completion of the IPO.
The supervisor believes that the consolidation is the best way for participants to achieve liquidity and to maximize the value of their investment in the subject LLCs. The supervisor believes that benefits to participants from the consolidation include:
| Liquidity for participants that elect to receive shares of Class A common stock expected to be listed on the NYSE, which investors may sell from time to time as and when they so desire (subject to the restrictions of applicable U.S. federal and state securities laws and after expiration of the lock-up period as described in this prospectus/consent solicitation). Presently there is no active trading market for the participation interest you hold in your subject LLC, which is only an indirect interest in real property subject to an operating lease, which is not under the operational control of your subject LLC; |
| Anticipated regular quarterly cash distributions on their shares of Class A common stock, which will include distributions of at least 90% of the companys annual net taxable income, determined without regard to the deduction for dividends paid and excluding any net capital gains, which is required for REIT qualification as described below; |
| Conversion of the current governance structure which is inefficient and costly in general and in which participants do not share in the same economic benefit that they would receive through ownership and operation of the properties by a single entity into a modern, centralized and efficient governance structure; |
| The opportunity to continue to hold interests in an entity operating under the brand developed by the supervisor and to participate in any future growth of the company, while removing obstacles to obtaining true synergies and realization of value, such as combining financings, movements of tenants from one building to another, sharing of employees and management and oversight; |
| Anticipated value enhancement through operating and capital structure efficiencies and the benefit of property diversification; |
| The opportunity to continue to hold interests in an entity in which certain executives of the supervisor will be members of the senior management team and Anthony E. Malkin will be Chairman, Chief Executive Officer, President and a director of the company; |
| The governance structure of an SEC reporting company with its Class A common stock expected to be listed on the NYSE, which provides accountability through the oversight of the company by a board of directors consisting predominantly of independent directors and |
| Immediate liquidity for those participants that receive cash upon exercise of the cash option. |
Q: | What is the proposed consolidation upon which I am being asked to vote? |
A: You are being requested to approve the consolidation in which your subject LLC will contribute its assets to the operating partnership in exchange for Class A common stock of the company and/or cash. All of the subject LLCs together represent 41.5% of the aggregate exchange value. As part of the consolidation, the company also will enter into similar transactions with the other subject LLCs, private entities and the management companies described elsewhere in this prospectus/consent solicitation.
Through the consolidation, the company intends to combine the properties of the subject LLCs and the private entities and the assets and operations of the supervisor and the other management companies into the
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company, and intends to elect and to qualify as a REIT for U.S. federal income tax purposes. The closing of the consolidation will occur simultaneously with the closing of an IPO of the companys Class A common stock. If the consolidation is approved by the three subject LLCs, the company acquires the properties from each of private entities and the company acquires the management companies, the company will own 12 office properties which, as of September 30, 2011, encompass approximately 7.7 million rentable square feet of office space, and which were approximately 79.9% leased as of September 30, 2011 (or 83.0% giving effect to leases signed but not yet commenced as of that date). Seven of these properties are located in the midtown Manhattan market and encompass in the aggregate approximately 5.8 million rentable square feet of office space, including the Empire State Building, the worlds most famous office building. The Manhattan office properties also contain an aggregate of 432,176 rentable square feet of premier retail space on the ground floor and/or lower levels. The remaining five office properties are located in Fairfield County, Connecticut and Westchester County, New York, encompassing approximately 1.8 million rentable square feet in the aggregate. The majority of the square footage for these five properties is located in densely populated metropolitan communities with immediate access to mass transportation. Additionally, the company has entitled land at the Stamford Transportation Center in Stamford, Connecticut, adjacent to one of its office properties, that will support the development of an approximately 340,000 rentable square foot office building and garage. As of September 30, 2011, the portfolio also included four standalone retail properties located in Manhattan and two standalone retail properties located in the city center of Westport, Connecticut, encompassing 204,452 rentable square feet in the aggregate. As of September 30, 2011, the standalone retail properties were approximately 96.8% leased in the aggregate (or 96.8% giving effect to leases signed but not yet commenced as of that date).
The consolidation offers participants the opportunity to become stockholders of the company, which will have as senior management certain executives of the supervisor, a recognized operator of office and retail properties in Manhattan and the greater New York metropolitan area. The supervisor has a comprehensive knowledge of its markets that has been developed through the supervisors principals substantial experience. The consolidation also will result in the creation of a company with a board of directors consisting predominantly of independent directors, which will be responsible for overseeing the operations of the company. Anthony E. Malkin will be the only management member of the board of directors.
All of the properties are located in Manhattan and the greater New York metropolitan area, which, according to RCG, is one of the most-prized office markets in the world and a world-renowned retail market due to a combination of supply constraints, high barriers to entry, near-term and long-term prospects for job creation, vacancy absorption and rental rate growth. The supervisor believes that the company will represent a unique opportunity to invest in a well-capitalized company with real estate in these most-prized markets and recognized and respected leadership. The companys primary focus will be to continue to own, operate and manage its current portfolio and to acquire and reposition office and retail properties in Manhattan and the greater New York metropolitan area.
Q: | Has the company received consents from the private entities and the management companies for the consolidation? |
A: All required consents of the private entities and the management companies, including the consents of the Wien group and the interests of the estate of Leona M. Helmsley (which is referred to herein as the Helmsley estate), to the acquisition by the company of the assets of the private entities and the management companies have been obtained prior to the date of this prospectus/consent solicitation. In addition, the Wien group collectively owns participation interests in the subject LLCs and has advised that it will vote in favor of the consolidation and the third-party portfolio proposal. These participation interests represent the following percentage ownership for each subject LLC: 8.5921% for Empire State Building Associates L.L.C., 8.7684% for 60 East 42nd St. Associates L.L.C. and 7.3148% for 250 West 57th St. Associates L.L.C.
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Q: | What are the conditions for the consolidation to close? |
A: The following conditions must be satisfied to consummate the consolidation of the subject LLC: (i) requisite consent of the participants in the subject LLC must have been received; (ii) the closing of the IPO and the listing of the Class A common stock on the NYSE or another national securities exchange; (iii) the closing of the consolidation no later than December 31, 2014; (iv) the participation of Empire State Building Associates L.L.C. and the private entity which owns an interest in the Empire State Building participating in the consolidation and (v) other customary conditions. The consolidation is not conditioned on any of the other subject LLCs or private entities participating in the consolidation.
Q: | What will I be entitled to receive if I vote FOR the consolidation and either proposal is approved by my subject LLC? |
A: If you vote FOR the consolidation and your subject LLC participates in the consolidation, you will receive shares of Class A common stock in exchange for the participation interest that you own in your subject LLC.
Q: | What will I be entitled to receive if I dont vote FOR the consolidation and either proposal is approved by my subject LLC? |
A: If you vote AGAINST the consolidation, you do not vote or you ABSTAIN, and your subject LLC participates in the consolidation, if you are a participant in 250 West 57th St. Associates L.L.C., you will receive shares of Class A common stock, and, as set forth under the section entitled SummaryVoting Procedures for the Consolidation Proposal and the Third-Party Portfolio Proposal, if you are a participant in Empire State Building Associates L.L.C. and 60 East 42nd St. Associates L.L.C., your participation interests will be subject to a buyout pursuant to the subject LLCs organizational documents. The buyout amount would be substantially lower than the exchange value. These buyout amounts are $100 for the interest held by a participant in Empire State Building Associates L.L.C. and $100 for the interest held by a participant in 60 East 42nd St. Associates L.L.C., as compared to the exchange value of $33,085 per $1,000 original investment for Empire State Building Associates L.L.C. and $38,972 per $1,000 original investment for 60 East 42nd St. Associates L.L.C., respectively. Prior to an agent purchasing the participation interests of non-consenting participants for the benefit of the applicable subject LLC, the agent will give such participants not less than ten days notice after the required consent is received by a subject LLC to permit them to consent to the consolidation or the third-party portfolio proposal, as applicable, in which case their participation interests will not be purchased.
Q: | If my subject LLC consolidates with the company, may I choose to receive something other than shares of Class A common stock? |
A: Yes, you will have the option to receive cash (at a price per share equal to the IPO price reduced by the underwriting discount per share paid by the company in the IPO) for up to [12-15] % of the shares of Class A common stock issuable to you in the consolidation, by electing a cash option in the consent form accompanying this prospectus/consent solicitation. This election is referred to herein as the cash option. The cash option provides those participants that wish to receive cash the ability to have immediate liquidity. Participants in the subject LLCs are being provided with the option to enable them to receive cash to cover a portion of U.S. federal income taxes payable in connection with the shares of Class A common stock issued to them in the consolidation. The cash option is limited to [12-15] % to assist the company in meeting the conditions for obtaining the reduced New York City and New York State transfer tax rate applicable to REITs, which the supervisor believes may be available with respect to a portion of the consolidation transfers, depending on the circumstances of the consolidation and certain events following the consolidation.
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Q: | How was the value of my participation interest determined? |
A: The value of your participation interest, as described in this prospectus/consent solicitation, was determined based on the exchange value for your subject LLC. The exchange value of your subject LLC and the other subject LLCs, the private entities and the management companies is the value of each of and all these entities based on the appraisal by Duff & Phelps, LLC, which is referred to herein as Duff & Phelps or the independent valuer, which serves as the independent valuer for all the subject LLCs, the private entities and the management companies. Shares of common stock, operating partnership units and/or cash, as applicable, will be allocated among the subject LLCs, the private entities and the management companies based upon the exchange values of each subject LLC, each private entity and the management companies. The exchange value was then allocated among the participants and the holders of the override interests by the independent valuer in accordance with each subject LLCs organizational documents. However, as described elsewhere in this prospectus/consent solicitation, while the exchange value was used to establish the relative value of the properties and participation interests, this value does not necessarily represent the fair market value of your participation interest.
The fair market value of the consideration that you receive will not be known until the pricing of the IPO. The value of the consideration will be based on the enterprise value determined in connection with pricing of the IPO. The enterprise value will be determined by the market conditions and the performance of the portfolio at the time of the IPO. The enterprise value may be higher or lower than the aggregate exchange value. The exchange value used herein is based on the appraisal prepared by the independent valuer. Historically, in a typical initial public offering of a REIT, the enterprise value and initial public offering price are at a discount to the net asset value of the REITs portfolio of properties, which in turn may be above or below the aggregate exchange value.
Q: | How many shares of Class A common stock will I be entitled to receive if my subject LLC is consolidated with the company? |
A: The number of shares of Class A common stock that will be allocated to each subject LLC in the consolidation based on the exchange value is set forth in the chart under the caption SummaryThe ConsolidationAllocation of Common Stock. You will receive a portion of the Class A common stock allocated to your subject LLC in accordance with your percentage interest in the subject LLC and the subject LLCs organizational documents. The number of shares of Class A common stock presented in this prospectus/consent solicitation is based on the hypothetical $10 per share exchange value arbitrarily assigned by the supervisor to illustrate the number of shares of Class A common stock that a participant would receive if the enterprise value of the company determined in connection with the IPO were the same as the aggregate exchange value and the IPO price were $10 per share. The actual number of shares of common stock, on a fully-diluted basis, issued in the consolidation will equal the enterprise value divided by the actual IPO price upon pricing of the IPO. The enterprise value will be determined by the market conditions and the performance of the portfolio at the time of the IPO. The enterprise value may be higher or lower than the aggregate exchange value. The exchange value used herein is based on the appraisal prepared by the independent valuer. Historically, in a typical initial public offering of a REIT, the enterprise value and initial public offering price are at a discount to the net asset value of the REITs portfolio of properties, which in turn may be above or below the aggregate exchange value.
Q: | What are the rights of holders of Class A common stock and Class B common stock? |
A: Each share of Class A common stock will entitle the holder to one vote, and each outstanding share of Class B common stock will entitle the holder to 50 votes on each matter on which holders of Class A common stock are entitled to vote, including the election of directors, and the holders of shares of Class A common stock and Class B common stock will vote together as a single class. Subject to the provisions of the companys charter regarding the restrictions on ownership and transfer of the companys stock, shares of Class A common stock and Class B common stock will have equal dividend, liquidation and other rights.
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Accredited investors in the private entities and the management companies which had an option to elect operating partnership units at the time that they made their election of consideration in the private solicitation had an option to elect to receive one share of Class B common stock in lieu of one operating partnership unit for every 50 non-voting operating partnership units such participant would otherwise receive in the consolidation.
Q: | Why am I being asked to consent to a third-party portfolio proposal? |
A: As a potential alternative to the consolidation, you also are being asked to consent to the sale or contribution of the subject LLCs property interest as part of a sale or contribution of the properties owned by the subject LLCs and the private entities as a portfolio to a third party. Through solicitation of consents, for the first time the properties owned by the subject LLCs and the private entities can be joined as a single portfolio. While the supervisor believes the consolidation and IPO represent the best opportunity for participants in the subject LLCs and the private entities to achieve liquidity and to maximize the value of their respective investments, the supervisor also believes it is in the best interest of all participants for the supervisor to be able to approve offers from unaffiliated third parties for the portfolio as a whole.
Market forces are dynamic, unpredictable, and subject to volatility. Should the public awareness of the proposed consolidation and IPO produce potential compelling offers from unaffiliated third parties to purchase the consolidated portfolio, it will be costly and time consuming to solicit consents to allow a sale or contribution of the portfolio to a third party, and there is considerable risk that any opportunity which might appear would be lost without the requested consent in place. Therefore, the supervisor believes that it is advisable to have the flexibility and discretion, subject to certain conditions, to accept an offer for the entire portfolio of properties from an unaffiliated third party, rather than pursue the consolidation and IPO, if the supervisor determines the offer price includes what the supervisor believes is an adequate premium above the value that is expected to be realized over time from the consolidation. The supervisor has agreed that it will not accept a third-party offer unless it is unanimously approved by a committee which will include representatives of the supervisor and a representative of the Helmsley estate. Any third-party interested in making a portfolio proposal will be instructed to make its offer for all cash. It is possible that participants or the supervisor and its affiliates may be offered an option to receive securities in lieu of all or a portion of the cash. The supervisor will be authorized to approve offers only if definitive agreements are entered into prior to December 31, 2015 or such earlier date as the supervisor may set with or without notice or public announcement.
Q: | What will I be entitled to receive if I dont vote FOR the third-party portfolio proposal and it is approved by my subject LLC? |
A: If you vote AGAINST the third-party portfolio proposal, you do not vote or you ABSTAIN, and your subject LLC participates in the third-party portfolio proposal, if you are a participant in 250 West 57th St. Associates L.L.C. you will receive the same consideration as other participants and, as set forth under the section entitled SummaryVoting Procedures for the Consolidation Proposal and the Third-Party Portfolio Proposal, if you are a participant in Empire State Building Associates L.L.C. and 60 East 42nd St. Associates L.L.C., your participation interests will be subject to a buyout pursuant to the subject LLCs organizational documents. The buyout amount would be substantially lower than the exchange value in connection with the allocation of consideration in the consolidation. These buyout amounts are $100 for the interest held by a participant in Empire State Building Associates L.L.C. and $100 for the interest held by a participant in 60 East 42nd St. Associates L.L.C., as compared to the exchange value of $33,085 per $1,000 original investment for Empire State Building Associates L.L.C. and $38,972 per $1,000 original investment for 60 East 42nd St. Associates L.L.C., respectively. Prior to an agent purchasing the participation interests of non-consenting participants for the benefit of the applicable subject LLC, the agent will give such participants not less than ten days notice after the required consent is received by a subject LLC to permit them to consent to the consolidation or the third-party portfolio proposal, as applicable, in which case their participation interests will not be purchased.
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Q: | Why am I being asked to consent to a voluntary pro rata reimbursement program? |
A: You are being asked to consent to a voluntary pro rata reimbursement program pursuant to which the supervisor and Peter L. Malkin, a principal of the supervisor, will be reimbursed for the prior advances of all costs, plus interest, incurred in connection with the legal proceedings with Helmsley-Spear, Inc., the former property manager and leasing agent, which resulted in the removal of the former property manager and leasing agent as property manager and leasing agent of the properties owned by the subject LLCs and certain of the private entities and has enabled a renovation and repositioning turnaround program to be implemented by the supervisor. If you consent to the voluntary pro rata reimbursement program, the supervisor and Peter L. Malkin will be reimbursed for your pro rata share of costs, plus interest, previously incurred out of your share of the excess cash of your subject LLC that is being distributed to participants, and, to the extent that is insufficient, the shares of Class A common stock that you would receive in the consolidation or the consideration that you would receive in a third-party portfolio transaction, as applicable, will be reduced by the balance (valued, if the consolidation is consummated, at the IPO price) and such balance would be paid to the supervisor and Peter L. Malkin in shares of Class A common stock, if the consolidation is consummated, or out of distributions that you would receive from the proceeds of a third-party portfolio transaction, if consummated, or out of distributions from operations of the subject LLC.
The table below shows the amount to be received by the supervisor out of the distributions of each consenting participant for each $1,000 of original investment by a participant pursuant to the voluntary pro rata reimbursement program:
Exchange Value of Shares of Common Stock to be Received by Participants per $1,000 Original Investment |
Voluntary Reimbursement | |||||||||||
Per $1,000 Original Investment |
Total | |||||||||||
Empire State Building Associates L.L.C. |
$ | 33,085 | $ | 101 | $ | 3,329,234 | ||||||
60 East 42nd St. Associates L.L.C. |
$ | 38,972 | $ | 236 | $ | 1,653,504 | ||||||
250 West 57th St. Associates L.L.C. |
$ | 35,722 | $ | 204 | $ | 733,795 |
The Helmsley estate, as part of an agreement with the supervisor covering this and other matters, has paid the voluntary pro rata reimbursement to the supervisor for its pro rata share of costs advanced, plus interest, which totaled $5,021,048.
To consent to this proposal, simply indicate on the enclosed consent form that you want to consent to this proposal, then sign and mail it in the enclosed return envelope as soon as possible. If you CONSENT to the voluntary pro rata reimbursement program, your consent is made only with respect to your participation interest, and your participation in the program is not dependent on the consent of any other participant. If you sign and send in your consent form and do not indicate that you want to consent, you will be counted as NOT consenting to this proposal. If you indicate on your consent form that you ABSTAIN, you will be counted as NOT consenting to this proposal.
Q: | What is a REIT, and why will the company elect to be a REIT? |
A: A REIT is an entity that has elected and qualifies to be taxed as a real estate investment trust under the Internal Revenue Code of 1986, as amended, referred to herein as the Code. A REIT is subject to requirements under the Code related to, among other things, the nature of its income and the composition of its assets, the amount of its annual distributions, and the diversity of its stock ownership. The primary benefit of REIT qualification is that a REIT is generally entitled to a deduction for dividends that it pays and, therefore, is not subject to U.S. federal corporate income tax on its net income distributed to its stockholders if it distributes its net taxable income to its stockholders on an annual basis. Therefore, upon a distribution of dividends by the company to its stockholders, income generated by the company will be taxed only at the stockholder-level. By contrast, a non-REIT C corporation is subject to U.S. federal corporate income tax on its taxable income without regard to dividends paid, and its stockholders are subject to U.S. federal income tax on dividends received.
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Q: | What is the operating partnership? |
A: The structure of the company generally is referred to as an UPREIT structure. Substantially all of the companys assets will be held directly or indirectly by the operating partnership. Holders of operating partnership units will have the same rights to distributions as stockholders. This structure generally will enable the company to acquire assets in transactions that will not trigger the recognition of gain to the owners of the acquired assets, assuming certain conditions are met.
The company will be the sole general partner of the operating partnership. As the sole general partner of the operating partnership, the company generally has the exclusive power under the operating partnership agreement to manage and conduct the business of the operating partnership, without the consent of the holders of operating partnership units or the stockholders.
The operating partnership units will be owned by the company and by any person who transfers interests or assets to the operating partnership or one of its subsidiaries in exchange for operating partnership units, including participants in the private entities and the Malkin Holdings group that will be issued operating partnership units as part of the consolidation in exchange for their participation interests and override interests in the private entities and the subject LLCs and their interests in certain of the management companies, as applicable. The company will own one operating partnership unit for each outstanding share of common stock.
Q: | What is the scope of the public U.S. REIT market? |
A: According to the National Association of Real Estate Investment Trusts, as of September 30, 2011, there were approximately 140 REITs in the U.S. that trade on one of the major stock exchanges, with 130 trading on the NYSE. Total equity market capitalization was approximately $413 billion and the total assets of these listed REITs amounted to approximately $827 billion.
Q: | Who can vote on the consolidation and third-party portfolio proposal? |
A: Participants in each subject LLC who hold participation interests in such subject LLC during the consent solicitation period are entitled to vote FOR or AGAINST each of the proposed consolidation and the third-party portfolio proposal with respect to such subject LLC. In the event of a transfer of a participation interest that previously has been voted, that vote will remain in effect unless revoked by the transferee.
The Wien group collectively owns participation interests in the subject LLCs and has advised that it will vote in favor of the consolidation and the third-party portfolio proposal. These participation interests represent the following percentage ownership for each subject LLC: 8.5921% for Empire State Building Associates L.L.C., 8.7684% for 60 East 42nd St. Associates L.L.C. and 7.3148% for 250 West 57th St. Associates L.L.C.
Q: | How do I vote FOR the consolidation and the third-party portfolio proposal? |
A: Simply indicate on the enclosed consent form how you want to vote for each proposal, then sign and mail it in the enclosed return envelope as soon as possible so that your participation interest may be voted FOR or AGAINST each proposal. If you sign and send in your consent form and do not indicate how you want to vote on either one of these proposals, your consent will be counted as a vote FOR such proposal. If you do not submit your consent form or you indicate on your consent form that you ABSTAIN from either proposal, it will have the effect of voting AGAINST such proposal. If you vote FOR the consolidation and your subject LLC participates in the consolidation, you effectively will preclude other alternatives, other than a third-party portfolio transaction, unless you vote AGAINST the third-party portfolio proposal. These alternatives include continuation of your subject LLC and a sale of your subject LLCs interest in the property and the resulting distribution of the net proceeds to its participants. Each of these proposals is subject to a separate consent and approval of each proposal is not dependent on approval of any other proposal.
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Q: | Can I change my vote on the consolidation proposal or the third-party portfolio proposal after I mail my consent form? |
A: Yes. You can change your vote on the consolidation proposal, the third-party portfolio proposal, or both, at any time before the later of the date that consents from participants holding the required percentage interests are received by your subject LLC and the 60th day after the date of this prospectus/consent solicitation. The required percentage interests for Empire State Building Associates L.L.C. is 80% of the outstanding participation interests in each of the three participating groups, for 60 East 42nd St. Associates L.L.C. is 90% of the outstanding participation interests in each of the seven participating groups and for 250 West 57th St. Associates L.L.C. is 75% of the outstanding participation interests in eight out of the ten participating groups. You can change your vote in one of two ways: you can send us a written statement that you would like to change your vote, or you can send us a new consent form. Any change in your vote or new consent form should be sent to MacKenzie Partners, Inc. our vote tabulator.
Q: | Are there any tax consequences as a result of the consolidation? |
A: You will generally recognize gain or loss for U.S. federal income tax purposes with respect to your participation interest equal to the amount by which the sum of any cash and the value of any shares of Class A common stock you receive in connection with the consolidation, plus the amount of liabilities allocable to your participation interest, exceeds your tax basis in your participation interest. You will recognize phantom income (i.e., income in excess of any cash and the value of any shares of common stock you receive) if you have a negative capital account with respect to your participation interest. The supervisor urges you to consult with your tax advisor to evaluate the tax consequences to you in your particular circumstances as a result of the consolidation.
Q: | Will I be able to transfer the shares of Class A common stock I receive in the consolidation? |
A: As stockholders, participants will own Class A common stock which is expected to be listed on the NYSE, and therefore will be publicly valued and freely tradable. Participants will be able to achieve liquidity by selling all or part of the shares of Class A common stock (subject to the restrictions of applicable U.S. federal and state securities laws and after expiration of the lock-up period as described herein).
Q: | In addition to this prospectus/consent solicitation, I received a supplement. What is the difference between this prospectus/consent solicitation and the supplement? |
A: The purpose of this prospectus/consent solicitation is to describe the consolidation generally and to provide you with a summary of the investment considerations generally applicable to all of the subject LLCs. The purpose of the supplement is to describe the investment considerations particular to your subject LLC.
After you read this prospectus/consent solicitation, the supervisor urges you to read the supplement. The supplement contains information particular to your subject LLC. This information is material in your decision whether to vote FOR or AGAINST the consolidation.
Q: | When do you expect the consolidation to be completed? |
A: The company plans to complete the consolidation as soon as possible after the receipt of the approval by the required vote of your subject LLCs participants and the approval by the required vote of the other subject LLCs participants, conditioned on the closing of the IPO. The company is unable to estimate the closing date of the consolidation and has required that it be completed no later than December 31, 2014. Your consent form must be received by , 2012, unless the supervisor extends the solicitation period. The supervisor reserves the right to extend on one or more occasions the solicitation period for one
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or more proposals for one or more subject LLCs without extending for other proposals or subject LLCs whether or not it has received approval for the consolidation or the third-party portfolio proposal.
Q: | If I own participation interests in more than one subject LLC, what should I do? |
A: For each subject LLC in which you own a participation interest, in the same mailing in which you received this prospectus/consent solicitation you have received a transmittal letter, supplement and consent form which provides for vote with respect to the consolidation proposal and the third-party portfolio proposal. Regardless of how many subject LLCs in which you own a participation interest, you have received a single copy of the prospectus/consent solicitation. Participants in each subject LLC will vote separately on whether or not to approve the consolidation. Accordingly, if you hold participation interests in more than one subject LLC, you must complete one consent form for each subject LLC in which you are a participant.
Q: | Information in this prospectus/consent solicitation is based on a $1,000 original investment. Where can I find information about my actual original investment? |
A: Information is presented in this prospectus/consent solicitation based on a $1,000 original investment to allow participants to determine the effect on them individually. Information regarding the amount of your actual original investment will be provided on the consent form sent to you.
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WHO CAN HELP ANSWER YOUR QUESTIONS?
If you have more questions about the consolidation or would like additional copies of the prospectus/consent solicitation or the supplement relating to your subject LLC(s) (which will be provided at no cost), you should contact the person designated on the consent form sent to you.
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This summary highlights information contained elsewhere in this prospectus/consent solicitation and may not contain all of the information regarding the consolidation that is important to you. To understand the consolidation and the third-party portfolio proposal fully and for a more complete description of the terms of and risks related to the consolidation and the third-party portfolio proposal, you should read carefully this entire prospectus/consent solicitation, the accompanying supplement relating to your subject LLC, the accompanying transmittal letter and the other documents to which the supervisor or the company, as applicable, has referred you, including the appendices and documents incorporated into this prospectus/consent solicitation by reference. See Where You Can Find More Information.
Purpose of this Prospectus/Consent Solicitation
You are being requested to approve the consolidation in which your subject LLC will contribute its assets to the company as part of the consolidation in exchange for Class A common stock of the company and/or cash. As part of the consolidation, the company also will enter into similar transactions with the other subject LLCs, the private entities and with the supervisor and other management companies that provide services to the subject LLCs and these entities. The company will be led by its Chairman, Chief Executive Officer and President, Anthony E. Malkin, who has provided portfolio leadership as president of the supervisor, while Peter L. Malkin will continue to provide guidance as Chairman Emeritus, all supported by the supervisors team of executives and staff, who are expected to join the company as part of the consolidation. The consolidation also will result in the creation of a company with a board of directors consisting predominantly of independent directors, which will be responsible for overseeing the operations of the company. Anthony E. Malkin will be the only management member of the board of directors.
The supervisor believes you will benefit from this consolidation through newly created opportunities for liquidity, enhanced operating and financing abilities and efficiencies, combined balance sheets, increased growth opportunities, enhanced property diversification, and continued leadership by the principals of the supervisor under the accountability of the governance structure of a company with its Class A common stock expected to be listed on the New York Stock Exchange, which is referred to herein as the NYSE, and a board of directors consisting predominantly of independent directors.
The supervisor believes this transaction represents the logical next step of value creation after years of action under the supervisors leadership to preserve, restore, and enhance your investment in the subject LLC. Included in that history is a challenging time, which began with litigation commenced in 1997 by Peter L. Malkin and the supervisor to remove Helmsley-Spear, Inc., the former property manager and leasing agent (after it was sold by entities controlled by Leona M. Helmsley), as property manager and leasing agent of the properties owned by the subject LLCs and other properties, which are now included in the plans for this consolidation.
Since the successful resolution of that litigation, the supervisor has overseen the engagement by the subject LLCs of independent property management and leasing agents, developed and substantially effected a comprehensive renovation and repositioning program for improving the physical condition of and upgrading the credit quality of tenants at the property, and raised the propertys profile as part of a well regarded portfolio brand. The supervisor believes that it is an opportune time for the subject LLCs to take advantage of the opportunity to participate in the consolidation which will afford participants the administrative and operating efficiencies, as well as better value protection through diversification. Additionally, the supervisor believes the consolidation provides value enhancement through better access to capital and liquidity for investors who so desire.
The supervisor has reviewed this transaction carefully and believes that current and anticipated property results provide favorable prospects for the consolidation. The supervisor will consider the capital market
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conditions at the time the IPO is ready to commence, but the supervisor is confident that a well located, well run, well capitalized portfolio of office and retail properties in Manhattan and in the greater New York metropolitan area is a desirable portfolio for an IPO.
The consolidation offers participants the opportunity to become stockholders of the company, which is being formed to continue and expand the commercial real estate business of the subject LLCs, the private entities and the management companies participating in the consolidation. The supervisor has developed a comprehensive knowledge of its markets that has been acquired through its senior management teams substantial experience and is a recognized operator of office and retail properties.
Manhattan and the greater New York metropolitan area is one of the most-prized office markets in the world and a world-renowned retail market. Its status is derived from a combination of supply constraints and high barriers to entry, as well as near-term and long-term prospects for job creation, vacancy absorption and rental rate growth. Upon completion of the consolidation, all of the companys properties will be located in Manhattan and the greater New York metropolitan area. The supervisor believes that the company will represent a unique opportunity to invest in a well-capitalized company with real estate in these most-prized markets and recognized and respected leadership. The companys primary focus will be to manage its current portfolio and acquire and reposition office and retail properties in Manhattan and the greater New York metropolitan area.
A subject LLC will participate in the consolidation only if participants holding more than the required percentage of the outstanding participation interests in the subject LLC vote in favor of the consolidation, as described herein.
Description of the Company and the Subject LLCs
The company is a self-administered and self-managed real estate investment trust, or REIT, that owns, manages, operates, acquires and repositions office and retail properties in Manhattan and the greater New York metropolitan area. The company was formed to continue and expand the commercial real estate business of the supervisor and its affiliates. The companys primary focus will be to continue to own, manage and operate its current portfolio and to acquire and reposition office and retail properties in Manhattan and the greater New York metropolitan area.
As of September 30, 2011, the company owned 12 office properties encompassing approximately 7.7 million rentable square feet of office space, which were approximately 79.9% leased (or 83.0% giving effect to leases signed but not yet commenced as of that date). Seven of these properties are located in the midtown Manhattan market and encompass in the aggregate approximately 5.8 million rentable square feet of office space, including the Empire State Building, the worlds most famous office building. The companys Manhattan office properties also contain an aggregate of 432,176 rentable square feet of premier retail space on their ground floor and/or lower levels. The companys remaining five office properties are located in Fairfield County, Connecticut and Westchester County, New York, encompassing in the aggregate approximately 1.8 million rentable square feet. The majority of square footage for these five properties is located in densely populated metropolitan communities with immediate access to mass transportation. Additionally, the company has entitled land at the Stamford Transportation Center in Stamford, Connecticut, adjacent to one of its office properties, that will support the development of an approximately 340,000 rentable square foot office building and garage, which is referred to herein as Metro Tower. As of September 30, 2011, the companys portfolio also included four standalone retail properties located in Manhattan and two standalone retail properties located in the city center of Westport, Connecticut, encompassing 204,452 rentable square feet in the aggregate. As of September 30, 2011, the companys standalone retail properties were approximately 96.8% leased in the aggregate (or 96.8% giving effect to leases signed but not yet commenced as of that date).
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In addition, the company has an option to acquire from three private entities supervised by the supervisor two additional Manhattan office properties encompassing approximately 1.4 million rentable square feet of office space and 153,298 rentable square feet of ground floor retail space. These option properties currently are subject to ongoing litigation and the company has an option to acquire fee, long-term leasehold, sub-leasehold and/or sub-subleasehold interests in these two properties, as applicable, after such litigation is resolved. These properties are referred to herein as the option properties. For more information please see The Company Business and PropertiesDescription of Option Properties.
From 2002 through 2006, the supervisor gradually gained day-to-day management of the companys Manhattan office properties. Since then, the supervisor has been undertaking a comprehensive renovation and repositioning strategy of its Manhattan office properties that has included the physical improvement through upgrades and modernization of, and tenant upgrades in, such properties. From 2002 through September 30, 2011, the subject LLCs and the private entities have invested a total of approximately $296.0 million (excluding tenant improvement costs and leasing commissions) in its Manhattan office properties pursuant to this program. The company currently intends to invest between $175.0 million and $215.0 million of additional capital through the end of 2013. The company expects to complete substantially this program by the end of 2013, except with respect to the Empire State Building, which is the last Manhattan office property that began its renovation program. In addition, the company currently estimates that between $55.0 million and $65.0 million of capital is needed beyond 2013 to complete the renovation program at the Empire State Building, which the company expects to complete substantially in 2016, due to the size and scope of the companys remaining work and the companys desire to minimize tenant disruptions at the property. The company intends to fund these capital improvements through a combination of operating cash flow and borrowings.
These improvements, within the renovation and repositioning program, include restored, renovated and upgraded or new lobbies; elevator modernization; renovated public areas and bathrooms; refurbished or new windows; upgrade and standardization of retail storefront and signage; façade restorations; modernization of building-wide systems and enhanced tenant amenities. These improvements are designed to improve the overall value and attractiveness of the companys properties and have contributed significantly to its tenant repositioning efforts, which seek to increase the companys occupancy; raise the companys rental rates; increase the companys rentable square feet; increase the companys aggregate rental revenue; lengthen the companys average lease term; increase the companys average lease size; and improve the companys tenant credit quality. The company has also aggregated smaller spaces in order to offer larger blocks of office space, including multiple floors, that are attractive to larger, higher credit-quality tenants and to offer new, pre-built suites with improved layouts. This strategy has shown attractive results to date, as illustrated by the case studies which are described in The Company Business and PropertiesRenovation and Repositioning Case Studies, and the company believes it has the potential to improve the companys operating margins and cash flows in the future. The company believes the company will continue to enhance its tenant base and improve rents as the companys pre-renovation leases continue to expire and be re-leased.
The Empire State Building is the companys flagship property and provides the company with a significant and diversified source of revenue through its office and retail leases, observatory operations and broadcasting licenses and related leased space. On a pro forma basis, during the nine months ended September 30, 2011 and the year ended December 31, 2010, respectively, the company generated approximately $156.7 million and $197.4 million of revenue from the Empire State Building. The ongoing repositioning of the Empire State Building, which comprises 2,675,779 rentable square feet of office space and 163,655 rentable square feet of retail space, is representative of the companys strategic vision for its Manhattan office properties. To date, the renovation and repositioning efforts have enabled the supervisor to lease significant amounts of space at the Empire State Building to new higher credit-quality tenants, including: LF USA; Skanska; Coty, Inc.; the Federal Deposit Insurance Corporation; Funaro & Co.; LinkedIn; Noven Pharmaceuticals; Peoples Daily Online USA; Taylor Global; Turkish Airlines; and World Monuments Fund. The company believes completing the
14
repositioning program for the Empire State Building, as well as its other Manhattan office properties, represents a significant growth opportunity for the company.
The company is led by Anthony E. Malkin, its Chairman, Chief Executive Officer and President, who has a strong reputation in the industry for quality management, repositioning and marketing expertise. Mr. Malkin, together with the companys senior management team, has developed the companys strategy with a focus on tenant and broker relationships and the cultivation of the companys brand to attract higher credit-quality tenants to its improved buildings and negotiate attractive rental terms. Mr. Malkin has over 23 years of real estate experience specifically in expanding, renovating, repositioning and managing this portfolio. The companys senior management team has an average of approximately 28 years of experience covering all aspects of real estate, including asset and property management, leasing, marketing, acquisitions, construction, development, legal and finance, and Messrs. Malkin, Durels and Keltner worked together for the supervisor for over 22 years, and have supervised the design and implementation of the companys renovation and repositioning program.
The Companys Competitive Strengths
The company believes that it distinguishes itself from other owners and operators of office and retail properties as a result of the following competitive strengths:
| Irreplaceable Portfolio of Office Properties in Midtown Manhattan. The companys Manhattan office properties are located in one of the most prized office markets in the world due to a combination of supply constraints, high barriers to entry, near-term and long-term prospectus for job creation, vacancy absorption and rental rate growth. The companys management believes these properties could not be replaced today on a cost-competitive basis, if at all. As of September 30, 2011, the company owned seven Manhattan office properties, encompassing approximately 5.8 million rentable square feet of office space, including the Empire State Building, the companys flagship property and the worlds most famous office building. All of these properties include premier retail space on their ground floor and/or lower levels, which comprise 432,176 rentable square feet in the aggregate and all of which have recently undergone significant renovations. |
| Expertise in Repositioning and Renovating Manhattan Office Properties. The company has substantial expertise in renovating and repositioning Manhattan office properties, having invested a total of approximately $296.0 million (excluding tenant improvement costs and leasing commissions) in the Manhattan office properties since the supervisor assumed day-to-day management of these properties beginning with One Grand Central Place in November 2002. The company has gained substantial experience in upgrading, renovating and modernizing (or are in the process thereof) all building lobbies, corridors, bathrooms and elevator cabs and old, antiquated spaces to include new ceilings, lighting, pantries and base building systems (including electric distribution and air conditioning, as well as enhanced tenant amenities). The supervisor has successfully aggregated and is continuing to aggregate smaller spaces to offer larger blocks of space, including multiple floors, that are attractive to larger, higher credit-quality tenants and to offer new, pre-built suites with improved layouts. As part of this program, the supervisor converted some or all of the ground office floors of certain of its Manhattan office properties to higher rent retail space. The company believes that the post-renovation high quality of its buildings and the service the company provides also attract higher credit-quality tenants and allow it to grow cash flow. |
| Leader in Energy Efficiency Retrofitting. The company has pioneered certain practices in energy efficiency at the Empire State Building where the company has partnered with the Clinton Climate Initiative, Johnson Controls Inc., Jones Lang LaSalle and the Rocky Mountain Institute to create and implement a groundbreaking, replicable process for integrating energy efficiency retrofits in the existing built environment. The reduced energy consumption reduces costs for the company and its |
15
tenants, and the company believes creates a competitive advantage for its properties. The company believes that higher quality tenants in general place a higher priority on sustainability, controlling costs and minimizing contributions to greenhouse gases. The company believes its expertise in this area gives it the opportunity to attract higher quality tenants at higher rental rates and to reduce the companys expenses. As a result of the companys efforts, the Empire State Building is now an Energy Star building and has been awarded LEED EBOM-Gold certification. The Company plans on implementing energy efficiency retrofitting projects in its Manhattan office properties based on its work at the Empire State Building. Finally, the company maintains a series of management practices utilizing recycling of tenant and construction waste, recycled content carpets, low off-gassing paints and adhesives, green pest control and cleaning solutions, and recycled paper products throughout the companys office portfolio. The company believes that its portfolios attractiveness is enhanced by these practices and that this should result in higher rental rates, longer lease terms and higher quality tenants. |
| Attractive Retail Locations in Densely Populated Metropolitan Communities. As of September 30, 2011, the companys portfolio also included six standalone retail properties and retail space at the ground floor and/or lower levels of its Manhattan office properties, encompassing 636,628 rentable square feet in the aggregate, which were approximately 86.2% leased in the aggregate (or 87.0% giving effect to leases signed but not yet commenced as of that date). All of these properties are located in premier retail corridors with convenient access to mass transportation, a diverse tenant base and high pedestrian traffic and/or main destination locations. The companys retail portfolio includes 615,195 rentable square feet located in Manhattan and 21,433 rentable square feet located in Westport, Connecticut. The companys retail tenants cover a number of industries, including financial services and include AT&T; Ann Taylor; Bank of America; Bank Santander (Sovereign Bank); Best Buy; Billabong; Charles Schwab; Chipotle; Duane Reade; Ethan Allen; the GAP; HSBC; JP Morgan Chase; Loews Theatre; Lululemon; Mens Wearhouse; Nike; Panera Bread; Sprint; Starbucks; Theory; TJ Maxx; and Walgreens. |
| Experienced and Committed Management Team with Proven Track Record. The companys senior management team is highly regarded in the real estate community and has extensive relationships with a broad range of brokers, owners, tenants and lenders. The company has developed relationships the company believes enable it to both secure high credit-quality tenants on attractive terms, as well as provide it with potential acquisition opportunities. The company has substantial in-house expertise and resources in asset and property management, leasing, marketing, acquisitions, construction, development and financing and a platform that is highly scalable. Members of the companys senior management team have worked in the real estate industry for an average of approximately 28 years, and Messrs. Malkin, Durels and Keltner have worked together for the supervisor for over 22 years. Upon completion of the IPO, the companys senior management team is expected to own % of the companys common stock on a fully diluted basis, and therefore their interests are expected to be aligned with those of the companys stockholders, and they are incentivized to maximize returns for the companys stockholders. |
| Strong Balance Sheet Well Positioned For Future Growth. Upon completion of the consolidation and the IPO, the company expects to have pro forma total debt outstanding of approximately $1.04 billion, with a weighted average interest rate of 5.29%, a weighted average maturity of 4.5 years and 84.0% of which is fixed-rate indebtedness. Additionally, the company expects to have approximately $179.1 million of available borrowing capacity under its loans on a pro forma basis. Upon completion of the IPO and on a pro forma basis for the year ended December 31, 2010, the company had a debt-to-earnings before interest, income tax, depreciation and amortization, or EBITDA, ratio of approximately 5.18x. For the year ended December 31, 2010, the companys pro forma EBITDA and pro forma net income were approximately $201.6 million and $84.6 million, respectively. The company has no debt maturing in 2012 and approximately $58.3 million maturing in 2013. |
16
Business and Growth Strategies
The companys primary business objectives are to maximize cash flow and total returns to its stockholders and to increase the value of the companys properties through the pursuit of the following business and growth strategies:
| Lease-up Available Space at Manhattan Office Properties. As of September 30, 2011, the companys Manhattan office properties were approximately 76.9% leased (or 80.6% giving effect to leases signed but not yet commenced as of that date) and had approximately 1.1 million rentable square feet of available space (excluding leases signed but not yet commenced). This compares to an average of 90.4% leased in midtown Manhattan according to RCG as of December 31, 2011. The company believes its renovation and repositioning program for its Manhattan office properties is a catalyst for additional lease-up. The company has created large blocks of available space and intends to continue to create such blocks over the next several years as part of the companys comprehensive repositioning strategy to attract larger, higher credit-quality tenants at higher rents for longer lease terms with higher average retention rates and greater prospects for growth. Individual and multiple floors have been assembled and are being assembled for larger users. To date the company believes these efforts have accelerated its ability to lease space to new higher credit-quality tenants, many of which have expanded the office space they lease from the company over time. Examples of this include LF USA, Coty. Inc., the Federal Deposit Insurance Corporation, and Actimize which collectively have leases signed with the company for over 1,275,265 rentable square feet that represent additional annualized base rent of $51,117,013 as of September 30, 2011. The company also employs a pre-built suite strategy in selected portions of some of the properties to appeal to many credit-worthy smaller tenants by fitting out some available space with new ceilings, lighting, pantries and base building systems (including electric distribution and air conditioning) for immediate occupancy. |
| Increase Existing Below-Market Rents. The company believes it can capitalize on the successful repositioning of its Manhattan office portfolio and improving market fundamentals to increase rents. For example, the company expects to benefit from the re-leasing of 26.1%, or approximately 1.5 million rentable square feet (including month-to-month leases), of its Manhattan office leases expiring through December 31, 2014, which the company generally believes are currently at below market rates. These expiring leases represent a weighted average base rent of $35.72 per square foot based on current measurements. As older leases expire, the company expects to continue to upgrade certain space to further increase rents and the company expects to increase the total rentable square footage of such space as a result of remeasurement and application of market loss factors to the companys space which the company expects will generate additional rental revenue. |
| Complete the Redevelopment and Repositioning of the Companys Current Portfolio. The company intends to continue to increase occupancy, improve tenant quality and enhance cash flow and value by completing the renovation and repositioning of its Manhattan office properties. The company intends selectively to continue to allow leases for smaller spaces to expire or relocate smaller tenants in order to aggregate, demolish and re-demise existing office space into larger blocks of vacant space, which the company believes will attract higher credit-quality tenants at higher rental rates. The company applies rigorous underwriting analysis to determine if aggregation of vacant space for future leasing to larger tenants will improve its cash flows over the long term. In addition, the company is a leader in developing economically justified energy efficiency retrofitting and sustainability and has made it a portfolio-wide initiative. The company believes this makes its properties desirable to high credit-quality tenants at higher rental rates and longer lease terms. |
| Pursue Attractive Acquisition and Development Opportunities. The company will opportunistically pursue attractive opportunities to acquire office and retail properties, including the option properties. The company intends to focus its acquisition strategy primarily on Manhattan office properties and, to a lesser extent, office and multi-tenanted retail properties in densely populated communities in the |
17
greater New York metropolitan area and other markets the company may identify in the future. The company believes it can utilize its industry relationships (including well-known real estate owners in Manhattan), brand recognition, and expertise in redeveloping and repositioning office properties to identify acquisition opportunities where the company believes it can increase occupancy and rental rates. The companys strong balance sheet, access to capital, and ability to offer operating partnership units in tax deferred acquisition transactions should give the company significant flexibility in structuring and consummating acquisitions. |
| Proactively Manage the Companys Portfolio. The company believes its proactive, service-intensive approach to asset and property management helps increase occupancy and rental rates. The company utilizes its comprehensive building management services and its strong commitment to tenant and broker relationships and satisfaction to negotiate attractive leasing deals and to attract high credit-quality tenants. The company proactively manages its rent roll and maintains continuous communication with its tenants. The company believes long-term tenant relationships will improve its operating results over time by reducing leasing, marketing and tenant improvement costs and reducing tenant turnover. |
As of September 30, 2011, the company had approximately 574 employees, 96 of whom were managers and professionals. The companys principal executive offices are located at One Grand Central Place, 60 East 42nd Street, New York, New York 10165. In addition, the company has seven additional regional leasing and property management offices in Manhattan and the greater New York metropolitan area. The companys telephone number is (212) 953-0888. The companys website address is www. . The information on or otherwise accessible through, the companys website does not constitute a part of this prospectus/consent solicitation.
18
As of September 30, 2011, the companys portfolio consisted of 12 office properties and six standalone retail properties totaling approximately 8.3 million rentable square feet and was approximately 80.4% leased (or 83.3% giving effect to leases signed but not yet commenced as of that date). In addition, the company owned entitled land that will support the development of an approximately 340,000 rentable square foot office building and garage (Metro Tower) at the Stamford Transportation Center in Stamford, Connecticut, adjacent to one of the companys office properties, as of September 30, 2011. The table below presents an overview of the companys portfolio as of September 30, 2011:
Property Name |
Submarket |
Year Built / |
Rentable Square Feet(2) |
Percent Leased(3) |
Annualized Base Rent(4) |
Annualized Base Rent Per Leased Square Foot(5) |
Net Effective Rent Per Leased Square Foot(6) |
Number
of Leases(7) |
||||||||||||||||||||
Manhattan Office Properties |
| |||||||||||||||||||||||||||
The Empire State Building |
Penn Station- Times Sq. South |
1930 / In process |
$ | 39.40 | ||||||||||||||||||||||||
Office(8) |
2,675,779 | 67.3 | % | $ | 62,642,545 | $ | 34.79 | 282 | ||||||||||||||||||||
Retail(9) |
163,655 | 89.7 | % | $ | 14,382,077 | $ | 98.01 | 24 | ||||||||||||||||||||
One Grand Central Place |
Grand Central |
1930 / In process |
$ | 47.43 | ||||||||||||||||||||||||
Office |
1,157,911 | 79.7 | % | $ | 41,343,400 | $ | 44.77 | 306 | ||||||||||||||||||||
Retail |
68,343 | 87.1 | % | $ | 5,713,916 | $ | 96.00 | 19 | ||||||||||||||||||||
250 West 57th Street |
Columbus Circle-West Side |
1921 / In process |
$ | 42.73 | ||||||||||||||||||||||||
Office |
476,870 | 84.6 | % | $ | 15,760,697 | $ | 39.05 | 191 | ||||||||||||||||||||
Retail |
53,837 | 100.0 | % | $ | 4,479,500 | $ | 83.20 | 6 | ||||||||||||||||||||
501 Seventh Avenue |
Penn Station-Times Sq. South |
1923 / In process |
$ | 35.12 | ||||||||||||||||||||||||
Office |
431,971 | 90.8 | % | $ | 13,596,266 | $ | 34.66 | 33 | ||||||||||||||||||||
Retail |
37,765 | 93.1 | % | $ | 1,742,195 | $ | 49.55 | 11 | ||||||||||||||||||||
1359 Broadway |
Penn Station- Times Sq. South | 1924 / In process |
$ | 37.54 | ||||||||||||||||||||||||
Office |
437,943 | 96.3 | % | $ | 15,620,373 | $ | 37.03 | 35 | ||||||||||||||||||||
Retail |
27,618 | 78.9 | % | $ | 1,665,115 | $ | 76.37 | 6 | ||||||||||||||||||||
1350 Broadway(10) |
Penn Station- Times Sq. South | 1929 / In process |
$ | 56.29 | ||||||||||||||||||||||||
Office |
359,691 | 74.7 | % | $ | 10,651,056 | $ | 39.65 | 74 | ||||||||||||||||||||
Retail |
30,895 | 100.0 | % | $ | 5,724,987 | $ | 185.30 | 6 | ||||||||||||||||||||
1333 Broadway |
Penn Station- Times Sq. South | 1915 / In process |
$ | 43.98 | ||||||||||||||||||||||||
Office |
296,565 | 93.2 | % | $ | 11,391,478 | $ | 41.23 | 10 | ||||||||||||||||||||
Retail |
50,063 | 6.4 | % | $ | 725,713 | $ | 226.86 | 3 | ||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Sub-Total / Weighted Average Manhattan Office Properties |
6,268,906 | 77.2 | % | $ | 205,439,318 | $ | 42.47 | $ | 42.11 | 1,006 | ||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Office Space |
5,836,730 | 76.9 | % | $ | 171,005,815 | $ | 38.12 | 931 | ||||||||||||||||||||
Retail Space |
432,176 | 81.3 | % | $ | 34,433,503 | $ | 98.06 | 75 | ||||||||||||||||||||
Greater New York Metropolitan Area Office Properties |
| |||||||||||||||||||||||||||
First Stamford Place(11) |
Stamford, Connecticut(12) |
1986 / 2003 | 784,487 | 90.1 | % | $ | 27,526,218 | $ | 38.95 | $ | 38.93 | 36 | ||||||||||||||||
Metro Center |
Stamford, Connecticut(12) | 1987 / 1999 | 275,608 | 100.0 | % | $ | 12,897,836 | $ | 46.80 | $ | 47.29 | 24 | ||||||||||||||||
383 Main Avenue |
Norwalk, Connecticut(13) | 1985 / 1996 | 260,468 | 81.3 | % | $ | 5,836,564 | $ | 27.55 | $ | 28.00 | 19 | ||||||||||||||||
500 Mamaroneck Avenue |
Harrison, New York(14) |
1986 / 2004 | 289,682 | 91.4 | % | $ | 7,144,466 | $ | 26.98 | $ | 27.38 | 30 | ||||||||||||||||
10 Bank Street |
White Plains, New York(15) | 1989 / 2001 | 228,933 | 81.7 | % | $ | 6,186,454 | $ | 33.08 | $ | 33.97 | 27 | ||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Sub-Total / Weighted Average Greater New York Metropolitan Area Office Properties |
1,839,178 | 89.5 | % | $ | 59,591,538 | $ | 36.21 | $ | 36.50 | 136 | ||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Total / Weighted Average Office Properties |
7,675,908 | 79.9 | % | $ | 230,597,353 | $ | 37.60 | | 1,067 | |||||||||||||||||||
|
|
|
|
|
|
19
Property Name |
Submarket |
Year Built / |
Rentable Square Feet(2) |
Percent Leased(3) |
Annualized Base Rent(4) |
Annualized Base Rent Per Leased Square Foot(5) |
Net Effective Rent Per Leased Square Foot(6) |
Number
of Leases(7) |
||||||||||||||||||||
Standalone Retail Properties |
| |||||||||||||||||||||||||||
10 Union Square |
Union Square | 1988 / 1997 | 58,005 | 92.1 | % | $ | 3,668,753 | $ | 68.64 | $ | 70.01 | 12 | ||||||||||||||||
1542 Third Avenue |
Upper East Side | 1993(16) | 56,250 | 100.0 | % | $ | 2,833,796 | $ | 50.38 | $ | 47.15 | 3 | ||||||||||||||||
1010 Third Avenue |
Upper East Side | 1963 / 2007(17) | 44,662 | 100.0 | % | $ | 2,812,709 | $ | 62.98 | $ | 65.88 | 2 | ||||||||||||||||
77 West 55th Street |
Midtown | 1962(16) | 24,102 | 100.0 | % | $ | 2,104,651 | $ | 87.32 | $ | 79.62 | 3 | ||||||||||||||||
69-97 Main Street |
Westport, Connecticut | 1922 / 2005 | 17,103 | 88.3 | % | $ | 1,303,460 | $ | 86.33 | $ | 89.46 | 4 | ||||||||||||||||
103-107 Main Street |
Westport, Connecticut | 1900(16) | 4,330 | 100.0 | % | $ | 423,696 | $ | 97.85 | $ | 94.69 | 3 | ||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Sub-Total / Weighted Average Standalone Retail Properties |
204,452 | 96.8 | % | $ | 13,147,065 | $ | 66.44 | $ | 65.78 | 27 | ||||||||||||||||||
Total / Weighted Average Retail Properties(18) |
636,628 | 86.2 | % | $ | 47,580,568 | $ | 86.66 | | 102 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Portfolio Total |
8,312,536 | 80.4 | % | $ | 278,177,921 | $ | 41.64 | $ | 41.43 | 1,169 | ||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Option Properties |
| |||||||||||||||||||||||||||
112-122 West 34th Street(19) |
Penn Station-Times Sq. South | 1954 / In process | $ | 34.64 | ||||||||||||||||||||||||
Office |
562,935 | 86.8 | % | 64 | ||||||||||||||||||||||||
Retail |
133,437 | 100.0 | % | 3 | ||||||||||||||||||||||||
1400 Broadway |
Penn Station-Times Sq. South | 1930 / In process | $ | 34.09 | ||||||||||||||||||||||||
Office |
853,690 | 81.0 | % | 84 | ||||||||||||||||||||||||
Retail |
19,861 | 36.8 | % | 6 | ||||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||||||
Option Property Total |
1,569,923 | 157 | ||||||||||||||||||||||||||
|
|
|
|
(1) | For more information regarding the status of ongoing renovations at certain of the companys properties, see The Company Business and PropertiesDescription of the Companys Properties. |
(2) | Office property measurements are based on the Real Estate Board of New York measurement standards; retail property measurements are based on useable square feet. Excludes (i) 133,299 square feet of space across the companys portfolio attributable to building management use and tenant amenities and (ii) 71,934 square feet of space attributable to the companys observatory. |
(3) | Based on leases signed and commenced as of September 30, 2011 and calculated as (i) rentable square feet less available square feet divided by (ii) rentable square feet. |
(4) | Annualized base rent for office properties is calculated by multiplying (i) base rental payments (defined as cash base rents (before abatements and free rent)) for the month ended September 30, 2011 for leases commenced as of September 30, 2011, by (ii) 12. Total abatements and free rent with respect to the office properties for leases in effect as of September 30, 2011 for the 12 months ending September 30, 2012 are $3,659,861. Total annualized base rent, net of abatements and free rent, for the companys office properties is $226,937,492. Annualized base rent for retail properties (including the retail space in the companys Manhattan office properties) is calculated by multiplying (i) base rental payments (defined as cash base rents (before abatements, tenant reimbursements and free rent)) for the month ended September 30, 2011 for leases commenced as of September 30, 2011, by (ii) 12. Total abatements, tenant reimbursements and free rent with respect to the retail properties (including the retail space in the companys Manhattan office properties) for leases in effect as of September 30, 2011 for the 12 months ending September 30, 2012 are $99,206. Total annualized base rent, net of abatements, tenant reimbursements and free rent, for the companys retail properties is $47,481,362. Annualized base rent data for the companys office and retail properties is as of September 30, 2011 and does not reflect scheduled lease expirations for the 12 months ending September 30, 2012. |
(5) | Represents Annualized Base Rent under leases commenced as of September 30, 2011 divided by leased square feet. |
(6) | Net effective rent per leased square foot represents (i) the contractual base rent for leases in place as of September 30, 2011, calculated on a straight-line basis to amortize free rent periods and abatements, but without regard to tenant improvement allowances and leasing commissions, divided by (ii) square footage under commenced leases as of September 30, 2011. |
(7) | Represents the number of leases at each property or on a portfolio basis. If a tenant has more than one lease, whether or not at the same property, but with different expirations, the number of leases is calculated equal to the number of leases with different expirations. |
(8) | Includes 88,499 rentable square feet of space leased by the companys broadcasting tenants. |
(9) | Includes 3,457 rentable square feet of space leased by Host Services of New York, a licensee of the companys observatory. |
(10) | Denotes a ground leasehold interest in the property with a remaining term, including unilateral extension rights available to the company, of approximately 39 years (expiring July 31, 2050). |
(11) | First Stamford Place consists of three buildings. |
(12) | This submarket is part of the Stamford, Connecticutcentral business district (CBD) submarket as defined by RCG. See Economic and Market Overview. |
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(13) | This submarket is part of the South Central Stamford, Connecticut submarket as defined by RCG. See Economic and Market Overview. |
(14) | This submarket is part of the Eastern Westchester County submarket as defined by RCG. See Economic and Market Overview. |
(15) | This submarket is part of the White Plains, New YorkCBD submarket as defined by RCG. See Economic and Market Overview. |
(16) | No major renovation activity was undertaken at this property |
(17) | This property underwent major renovations in 2007 to coincide with the signing of a significant retail lease. |
(18) | Includes 432,176 rentable square feet of retail space in the companys Manhattan office properties. |
(19) | 112-122 West 34th Street consists of two parcels having separate owners and ownership structures. The real property interests that the company will acquire with respect to the parcel located at 112-120 West 34th Street consist of (i) a ground leasehold interest currently held by 112 West 34th Street Associates L.L.C., a private entity supervised by the supervisor with whom the company has entered into an option agreement and (ii) an operating leasehold interest currently held by 112 West 34th Street Company L.L.C., another private entity supervised by supervisor with whom the company has entered into an option agreement. The real property interests that the company will acquire with respect to the parcel located at 122 West 34th Street consist of (i) a fee interest and a subleasehold interest currently held by 112 West 34th Street Associates L.L.C. and (ii) an operating leasehold interest currently held by 112 West 34th Street Company L.L.C. |
The Subject LLCs, the Private Entities and the Management Companies
The three subject LLCs are publicly-registered limited liability companies originally formed from 1953 to 1961 as partnerships by principals of the supervisor. The principals of the supervisor during this period consisted of Lawrence A. Wien, until his death in 1988, and beginning in 1958, Peter L. Malkin. Anthony E. Malkin joined Peter L. Malkin as a principal in 1989. In exercising control, Anthony E. Malkin and Peter L. Malkin have been, and continue to be, subject to fiduciary duties owed multiple sets of equity owners in each subject LLC and private entity. Each subject LLC was formed to acquire the fee title or long-term ground lease interest in an office property located in New York, New York and to lease the property to an operating lessee, which operates the property. The subject LLCs do not participate in the operations of the property. As lessor, each subject LLC receives from its operating lessee fixed base rent and overage rent (based on a percentage of the operating lessees profits).
Each operating lessee was formed initially as a partnership, the partners of which included Lawrence A. Wien and Harry B. Helmsley, and later converted to a limited liability company.
The private entities, including the operating lessees, which will contribute their interests in properties to the company, were formed between 1953 and 2008 and own office and retail properties, in one case with adjacent fully entitled land including development approvals, and retail properties.
The management companies provide supervisory and other services for each subject LLC, each operating lessee and the other private entities.
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The following is a list of the subject LLCs and the private entities and the appraised value of the real property interests owned by the subject LLCs and the private entities, before deducting mortgage indebtedness or other liabilities and the exchange value, which is calculated after deducting mortgage indebtedness and other liabilities:
Entity(1) |
Appraised
Property Value(2) |
Appraised Entity Value |
Exchange Value |
|||||||||
Empire State Building |
$ | 2,520,000,000 | ||||||||||
Empire State Building Associates L.L.C. |
$ | 1,300,500,000 | $ | 1,209,442,285 | ||||||||
Empire State Building Company L.L.C.(3) |
$ | 1,219,500,000 | $ | 1,189,775,581 | ||||||||
|
|
|
|
|||||||||
Total |
$ | 2,520,000,000 | $ | 2,399,217,867 | ||||||||
One Grand Central Place |
$ | 687,000,000 | ||||||||||
60 East 42nd St. Associates L.L.C. |
$ | 350,500,000 | $ | 303,007,222 | ||||||||
Lincoln Building Associates L.L.C.(4) |
$ | 336,500,000 | $ | 286,921,306 | ||||||||
|
|
|
|
|||||||||
Total |
$ | 687,000,000 | $ | 589,928,528 | ||||||||
250 West 57th St. |
$ | 316,000,000 | ||||||||||
250 West 57th St. Associates L.L.C. |
$ | 163,000,000 | $ | 142,086,267 | ||||||||
Fisk Building Associates L.L.C.(5) |
$ | 153,000,000 | $ | 131,287,437 | ||||||||
|
|
|
|
|||||||||
Total |
$ | 316,000,000 | $ | 273,373,704 | ||||||||
1333 Broadway |
||||||||||||
1333 Broadway Associates L.L.C. |
$ | 189,000,000 | $ | 189,000,000 | $ | 136,432,404 | ||||||
1350 Broadway |
||||||||||||
1350 Broadway Associates L.L.C. |
$ | 186,000,000 | $ | 186,000,000 | $ | 145,057,081 | ||||||
1359 Broadway |
||||||||||||
Marlboro Building Associates L.L.C. |
$ | 192,000,000 | $ | 192,000,000 | $ | 142,870,166 | ||||||
501 Seventh Avenue |
$ | 159,000,000 | ||||||||||
Seventh & 37th Building Associates L.L.C. |
$ | 81,500,000 | $ | 56,063,072 | ||||||||
501 Seventh Avenue Associates L.L.C. |
$ | 77,500,000 | $ | 52,625,499 | ||||||||
|
|
|
|
|||||||||
Total |
$ | 159,000,000 | $ | 108,688,572 | ||||||||
69-97 Main Street |
||||||||||||
Soundview Plaza Associates II L.L.C. |
$ | 25,000,000 | $ | 25,000,000 | $ | 15,375,300 | ||||||
1010 Third Avenue and 77 West 55th Street |
||||||||||||
East West Manhattan Retail Portfolio L.P. |
$ | 56,000,000 | $ | 56,000,000 | $ | 26,582,583 | ||||||
Metro Center |
||||||||||||
One Station Place, Limited Partnership |
$ | 138,000,000 | $ | 138,000,000 | $ | 36,970,060 | ||||||
10 Union Square |
||||||||||||
New York Union Square Retail L.P. |
$ | 49,000,000 | $ | 49,000,000 | $ | 27,098,031 | ||||||
103-107 Main Street |
||||||||||||
Westport Main Street Retail L.L.C. |
$ | 5,000,000 | $ | 5,000,000 | $ | 4,925,541 | ||||||
First Stamford Place(6) |
$ | 258,000,000 | ||||||||||
Fairfax Merrifield Associates L.L.C. |
$ | 80,444,400 | $ | 4,212,136 | ||||||||
Merrifield Apartments Company L.L.C. |
$ | 80,444,400 | $ | 4,212,136 | ||||||||
First Stamford Place L.L.C. |
$ | 97,111,200 | $ | 4,832,916 | ||||||||
|
|
|
|
|||||||||
Total |
$ | 258,000,000 | $ | 13,257,187 |
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Entity(1) |
Appraised
Property Value(2) |
Appraised Entity Value |
Exchange Value |
|||||||||
10 Bank Street |
||||||||||||
1185 Swap Portfolio L.P. |
$ | 45,000,000 | $ | 45,000,000 | $ | 10,063,663 | ||||||
1542 Third Avenue |
||||||||||||
1185 Swap Portfolio L.P. |
$ | 32,000,000 | $ | 32,000,000 | $ | 11,953,171 | ||||||
383 Main Ave |
||||||||||||
Fairfield Merrittview Limited Partnership |
$ | 40,000,000 | $ | 40,000,000 | $ | 8,232,647 | ||||||
500 Mamaroneck Ave |
||||||||||||
500 Mamaroneck Avenue L.P. |
$ | 44,000,000 | $ | 44,000,000 | $ | 5,986,141 | ||||||
BBSF LLC |
$ | 14,600,000 | $ | 14,600,000 | $ | 14,600,000 | ||||||
Supervisor and Management Companies(7) |
$ | 14,525,000 | $ | 14,525,000 | $ | 15,921,278 | ||||||
|
|
|
|
|
|
|||||||
Total |
$ | 4,970,125,000 | $ | 4,970,125,000 | $ | 3,986,533,923 | ||||||
|
|
|
|
|
|
(1) | Excludes three private entities which are the ground lessees and an operating lessee of two properties that are supervised by the supervisor, having an appraised value of $715,100,000, determined on a basis consistent with the exchange values of the subject LLCs and the private entities that are supervised by the supervisor. The operating partnership has entered into option agreements pursuant to which it has the option to acquire their property interests upon the final resolution of certain ongoing litigation with respect to their properties. |
(2) | Represents the appraised value of each property owned (or in the case of a property subject to a third-party ground lease, the value of the interest as ground lessee) by or subject to an operating lease with each subject LLC and each private entity and the appraised value of management companies. |
(3) | Operating lessee of Empire State Building Associates L.L.C. |
(4) | Operating lessee of 60 East 42nd St. Associates L.L.C. |
(5) | Operating lessee of 250 West 57th St. Associates L.L.C. |
(6) | First Stamford Place L.L.C. is a 37.64% co-tenant with Fairfax Merrifield Associates L.L.C. and Merrifield Apartments Company L.L.C., together owning a 62.36% interest. Merrifield Apartments Company L.L.C. is the operating lessee, owning a 50.00% interest in the co-tenancy, for an aggregate ownership interest of 31.18% in the property. |
(7) | The value represents the appraised value of the management companies excluding the value attributable to the supervisors overrides, which are included in the value of the overrides that the Malkin Holdings group holds in the subject LLCs and the private entities. |
The Supervisors Reasons for Proposing the Consolidation
The supervisor proposed the consolidation and recommends that you vote FOR the consolidation. The supervisor believes this transaction represents the logical next step of value creation after years of action under the supervisors leadership to preserve, restore, and enhance your investment in the subject LLC.
The supervisor has overseen the engagement by the subject LLC of independent property management and leasing agents, developed and substantially effected a comprehensive renovation and repositioning program for improving the physical condition of and upgrading the credit quality of tenants at the property, and raised the propertys profile as part of a well regarded portfolio brand. The supervisor believes that it is an opportune time for the subject LLC to take advantage of the opportunity to participate in the consolidation which will afford the subject LLC the administrative and operating efficiencies, as well as better value protection through diversification. Additionally, the supervisor believes the consolidation provides value enhancement through better access to capital and options for liquidity for investors who so desire.
The supervisor believes that the consolidation of your subject LLC into the company is the best way for you to maximize the value of your investment in your subject LLC and to achieve liquidity through ownership of shares of Class A common stock expected to be listed on the NYSE, which investors may sell from time to time as and when they so desire (subject to the restrictions of applicable U.S. federal and state securities laws and after expiration of the lock-up period as described in this prospectus/consent solicitation). The supervisor believes that in view of the fact that the subject LLCs own the interests in the properties, but the operating lessees operate the
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properties, it would not be in the best interests of the subject LLCs to sell their interests in the properties separate from a sale by the operating lessees. The private entities (including the operating lessees), with the required consent of their participants, have agreed to transfer their interests in the properties, including their interests in the operating lessees, as part of the consolidation. The supervisor believes that the consolidation, over time, likely will result in higher values for participants in the subject LLCs than if the interests in the properties were sold individually and the subject LLCs were liquidated as a result of increased efficiencies, growth opportunities and other opportunities for value enhancement. The Malkin Holdings group will receive substantial benefits from the consolidation and have conflicts of interest in making this recommendation.
Benefits of Participation in the Consolidation
The supervisor believes that the consolidation will provide you with the following benefits:
| Liquidity. You will be able to achieve liquidity by selling all or part of your shares of Class A common stock, subject to the restrictions of applicable U.S. federal and state securities laws and after expiration of the lock-up period described under The ConsolidationLock-Up Agreement. The shares of Class A common stock are expected to be listed on the NYSE; |
| Regular Quarterly Cash Distributions. Similar to the subject LLCs present method of operation, the supervisor expects that the company will make regular quarterly cash distributions on its common stock, which will include distributions of at least 90% of the companys annual net taxable income, determined without regard to the deduction for dividends paid and excluding any net capital gains, which is required for REIT qualification; |
| More Efficient Decision-Making. Each subject LLC currently requires several internal procedural steps to undertake major transactions, which could affect their ability to take timely advantage of favorable opportunities. Financing and sales require costly and time consuming steps to obtain consent of a very high percentage of the participants in a subject LLC, as well as agreement of the corresponding operating lessee which operates the property and requires the consent of its participants. The company, in contrast, will have a more modern and flexible governance structure; |
| Increased Accountability. As a result of the governance structure of a company with its Class A common stock expected to be listed on the NYSE, stockholders will benefit from the oversight by a board of directors consisting predominantly of independent directors. |
| Greater and More Efficient Access to Capital. The company will have a larger base of assets and believes that it will have a greater variety of options and ability to access the capital markets and the equity value in its assets than any of the subject LLCs individually. As a result, the company expects to have greater and more efficient access to the capital necessary to fund its operations, fund renovations to the properties and consummate acquisitions than would be available to any of the subject LLCs individually. The supervisor believes that it would be extremely difficult for the subject LLCs to obtain similar access to capital due to their size and ownership structure; |
| Growth Potential. The supervisor believes that you have greater potential for increased distributions as a stockholder and increased value from capital appreciation than as a participant in your subject LLC. The supervisors belief is based on the anticipated growth in the revenues of the initial properties operated as a portfolio under the Malkin brand and potential additional investments by the company; |
| Elimination of Risk from Subject LLCs Passive Ownership of the Property Interests. Each subject LLC owns an interest in a single property subject to an operating lease. The operating lessee operates the property and the subject LLC does not participate in the management of the operations of the property. The market for the interest held by each subject LLC is smaller and the interest less valuable than of the entire property not subject to the operating lease. Following the consolidation, ownership and operation of the properties owned by the subject LLCs and private entities will be integrated; |
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| Risk Diversification. The company will own a larger number of properties and have broader types of properties and tenants than your subject LLC, which owns an interest in a single property. This diversification will reduce the dependence of your investment upon the performance of, and the exposure to the risks associated with, owning an interest in a single property; |
| Valuable Synergies. The subject LLCs presently benefit from being part of a portfolio of properties with a common brand awareness. However, under the current structure, there are major obstacles to obtaining true synergies and realization of value, such as combining financings, movements of tenants from one building to another, sharing of employees and management and oversight. The consolidation will remove such obstacles and free up access to value creation; |
| Position in Highly Desirable Marketplace. The properties owned by the subject LLCs and the private entities are concentrated in Manhattan and the greater New York metropolitan area. The supervisor believes this is one of the most highly desired markets in the world for office and retail properties; |
| Reduced Conflicts of Interest. From inception, the subject LLCs and the private entities were created with conflicts of interest inherent in their structure. Due to the structure, the supervisor represents many different ownership interests. The company will be managed by its officers, subject to the direction and control of its board of directors, which will consist predominantly of independent directors. There will not be separate interests of different groups of owners and there will not be a role for, or requirement of, an outside supervisor. The supervisor believes this structure eliminates the conflicts inherent in the structure which have been there from inception of the subject LLCs and the private entities and more closely aligns the interests among the stockholders and management; and |
| Election to Receive Cash. Participants in the subject LLCs may elect to receive cash (at a price per share equal to the IPO price reduced by the underwriting discount per share paid by the company in the IPO) for up to [12-15] % of the shares of Class A Common stock issuable to them in the consolidation, which is described under ConsiderationCash Option, if the consolidation is approved by their subject LLC and the consolidation is consummated. The cash option provides those participants that wish to receive cash the ability to have immediate liquidity with respect to a portion of the shares of Class A common stock issuable to them. Participants in the subject LLCs are being provided with the option to enable them to receive cash to cover a portion of U.S. federal income taxes payable in connection with the shares of Class A common stock issued to them in the consolidation. The cash option is limited to [12-15] % to assist the company in meeting the conditions for obtaining the reduced New York City and New York State transfer tax rate applicable to REITs, which the supervisor believes may be available with respect to a portion of the consolidation transfers, depending on the circumstances of the consolidation and certain events following the consolidation. |
Third-Party Portfolio Transaction
As a potential alternative to the consolidation, you also are being asked to consent to the sale or contribution of the subject LLCs property interest as part of a sale or contribution of the properties owned by the subject LLCs and the private entities as a portfolio to a third party. Through solicitation of consents, for the first time the properties owned by the subject LLCs and the private entities can be joined as a single portfolio. While the supervisor believes the consolidation and IPO represent the best opportunity for participants in the subject LLCs and the private entities to achieve liquidity and to maximize the value of their respective investments, the supervisor also believes it is in the best interest of all participants for the supervisor to be able to approve offers from unaffiliated third parties for the portfolio as a whole.
Market forces are dynamic, unpredictable, and subject to volatility. Should the public awareness of the proposed consolidation and IPO produce potential compelling offers from unaffiliated third parties to purchase the consolidated portfolio, it will be costly and time consuming to solicit consents to allow a sale or contribution of the portfolio to a third party, and there is considerable risk that any opportunity which might appear would be
25
lost without the requested consent in place. Therefore, the supervisor believes that it is advisable to have the flexibility and discretion, subject to certain conditions, to accept an offer for the entire portfolio of properties from a third party, rather than pursue the consolidation and IPO.
The third-party portfolio transaction would be undertaken only if the supervisor determines that the offer price includes what the supervisor believes is an adequate premium above the value that is expected to be realized over time from the consolidation, subject to the committee approval described below, and would apply only to an offer from an unaffiliated third-party for the entire portfolio of properties owned by all of the subject LLCs and all of the private entities, subject to exclusions described under the section entitled Third-Party Portfolio Proposal. A third-party portfolio transaction also could include the management companies.
Because of the inability to act without consent of the subject LLCs and certain of the private entities, the supervisor intends to inform any unaffiliated third-party which expresses interest in making a third-party offer that it will not consider any offer until after completion of the solicitation of consents of the subject LLCs. If an offer is submitted during the solicitation period, the supervisor may be required to provide information regarding the proposal to participants, to assist them in their decision regarding the consolidation.
The supervisor has agreed that it will not accept a third-party offer unless it is unanimously approved by a committee which will include representatives of the supervisor and a representative of the Helmsley estate. Any third-party interested in making a portfolio proposal will be instructed to make its offer for all cash. It is possible that participants or the supervisor and its affiliates may be offered an option to receive securities in lieu of all or a portion of the cash. The supervisor will be authorized to approve offers only if a definitive agreement is entered into prior to December 31, 2015 or such earlier date as the supervisor may set with or without notice or public announcement.
The Consolidation or a Third-Party Portfolio Transaction
The following is a summary of the material risks of the consolidation and the third-party portfolio transaction. The risks are more fully discussed in Risk Factors. You should consider these risks in determining whether or not to vote FOR the consolidation proposal or the third-party portfolio proposal.
| The fair market value of the consideration that you receive will not be known until the pricing of the IPO. The valuation of the shares of Class A common stock that you will receive in the consolidation, as presented in this prospectus/consent solicitation, is based on the exchange value of your subject LLC and the aggregate exchange value. These exchange valuations were based on the appraisal by the independent valuer. The enterprise value will be determined by the market conditions and the performance of the portfolio at the time of the IPO. The enterprise value may be higher or lower than the aggregate exchange value. The exchange value used herein is based on the appraisal prepared by the independent valuer. Historically, in a typical initial public offering of a REIT, the enterprise value and initial public offering price are at a discount to the net asset value of the REITs portfolio of properties, which in turn may be above or below the aggregate exchange value; |
| The participants will not know at the time they vote on the consolidation the size, makeup and leverage of the company or the exact number of shares of Class A common stock that the participants in the subject LLCs will receive in the consolidation. The consolidation is conditioned on the participation of Empire State Building Associates L.L.C. and the private entity which owns an interest in the Empire State Building participating in the consolidation but is not conditioned on any of the other subject LLCs or private entities participating in the consolidation. Each subject LLC represents a significant portion of the exchange value and anticipated future net income and cash flow of the company; |
| The supervisor arbitrarily has assigned $10 as the hypothetical value of each share of Class A common stock for purposes of illustrating the number of shares of common stock and operating partnership units |
26
that will be issued to each of the subject LLCs, the private entities and the management companies in the consolidation. The IPO price of the Class A common stock may be below the hypothetical $10 per share; |
| After the consolidation and completion of the IPO, your investment will be subject to market risk and the trading price of the Class A common stock may fluctuate significantly and may trade at prices below the IPO price. Your ability to sell shares of Class A common stock will be subject to the restrictions of applicable U.S. federal and state securities laws and subject to the lock-up period described herein; |
| The value of the shares of Class A common stock to be received by the participants in connection with the consolidation may be less than the fair market value of the participants participation interests in the subject LLCs; |
| The consolidation of your subject LLC into the company involves a fundamental change in the nature of your investment, including: |
| You no longer will hold a participation interest in a subject LLC that owns an interest in a single property subject to an operating lease located in Manhattan. Instead, you will own shares of Class A common stock in the company if the consolidation is consummated, which will own a portfolio of office and retail assets in Manhattan and the greater New York metropolitan area; |
| Historically, the supervisor generally has not reinvested the proceeds from a sale of properties by investment programs that it supervises, although it is not restricted from doing so. Net proceeds which are not reinvested or reserved in the supervisors discretion would be distributed to the participants in accordance with each subject LLCs organizational documents. The company expects to reinvest the proceeds from sales of its properties; |
| While the participants in Empire State Building Associates L.L.C. in 2008 authorized the supervisor to obtain financing to invest in properties, none of the subject LLCs has acquired any additional properties. The company may raise additional funds through equity or debt financings to make future acquisitions of properties and |
| The company will own, and in the future may invest in, types of properties different from those in which your subject LLC has invested; |
| While the subject LLCs exchange values have been determined based on the appraisal by the independent valuer, and they have received a fairness opinion from the independent valuer, no independent representative was retained to negotiate on behalf of the participants. If a representative or representatives had been retained for the participants, the terms of the consolidation might have been different and, possibly, more favorable to the participants; |
| While the independent valuer appraised each property, the independent valuers fairness opinion addressed only the allocation of consideration (Class A common stock, Class B common stock, operating partnership units or cash consideration) (i) among the subject LLCs, the private entities and the management companies and (ii) to the participants in each subject LLC and each private entity (without giving effect to any impact of the consolidation on any particular participant other than in its capacity as a participant in each of the subject LLCs and each of the private entities); |
| The independent valuers fairness opinion cannot address the market value of the Class A common stock you will receive, which can only be set by the market value at the time the IPO is consummated or the amount of cash participants may receive; |
| For each subject LLC, approval of the consolidation by the requisite vote of the participants will cause the subject LLC to participate in the consolidation, whether you vote FOR or AGAINST the consolidation; |
27
| The organizational documents provide that if more than a specified percentage of participation interests in Empire State Building Associates L.L.C. and 60 East 42nd St. Associates L.L.C. approve an action, the agents may purchase on behalf of the subject LLC the participation interests of participants who do not approve such action, and that price would be substantially below the exchange value of the participation interests. If the required consent of the participation interests in a subject LLC approves the consolidation, an agents participating group will purchase on behalf of the subject LLC the participation interests of the participants that do not approve the consolidation, at a price substantially below the exchange value of the participation interests; |
| If the required percentage of participation interests in a subject LLC approves the consolidation and the subject LLC is consolidated with the company, the subject LLC no longer can enter into alternatives to the consolidation. These alternatives include (i) continuation of the subject LLC and (ii) a sale of the subject LLCs interest in the property followed by the distribution of the net proceeds to its participants; |
| From inception, the supervisor, the agents and their affiliates have served in their respective capacities with respect to each subject LLC and each private entity with conflicts of interest and as such have conflicts of interest in connection with the consolidation; |
| The Malkin Holdings group will receive shares of Class A common stock, Class B common stock and operating partnership units which are redeemable for cash or, at the companys election, Class A common stock, having an aggregate value of $642,208,000, which they are entitled to receive, and will be allocated to them in accordance with the subject LLCs and private entities organizational documents, and their interests in the management companies, which will be allocated to them in accordance with the valuations of the management companies by the independent valuer, based on the hypothetical $10 per share exchange value that the supervisor arbitrarily assigned for illustrative purposes. This is in addition to any operating partnership units issuable in respect of the voluntary pro rata reimbursement program consented to by participants in the subject LLCs and its share of distributions of any cash available for distribution from the subject LLCs prior to the consolidation. The Malkin Holdings group also will receive other benefits from the consolidation, and have interests that conflict with those of the participants; |
| You generally will recognize gain or loss for U.S. federal income tax purposes with respect to your participation interest equal to the amount by which the sum of any cash and the value of any shares of Class A common stock you receive in connection with the consolidation, plus the amount of liabilities allocable to your participation interest, exceeds your tax basis in your participation interest. You will recognize phantom income (i.e., income in excess of any cash and the value of any shares of Class A common stock you receive) if you have a negative capital account with respect to your participation interest. The supervisor urges you to consult with your tax advisor to evaluate the tax consequences to you in your particular circumstances as a result of the consolidation. As a result of the cap on the cash option, even if you elect to receive cash in the consolidation, you may not be able to receive sufficient cash to pay your tax liabilities resulting from the consolidation. In addition, due to the lock-up on your shares of Class A common stock, you may not be able to sell your shares of Class A common stock to realize cash at the time such sale may be required to meet any tax or estimated tax obligation; |
| The participants in the subject LLCs will have different U.S. federal income tax and other tax consequences from the tax consequences of participants in the private entities and the Wien group. The participants in the subject LLCs will be issued shares of Class A common stock and/or cash in taxable transactions. The Wien group will receive operating partnership units and/or shares of Class A common stock and/or Class B common stock in transactions that are intended to qualify, in whole or in part, as tax deferred transactions for U.S. federal income tax purposes. The participants in the private entities also will receive operating partnership units and/or shares of Class A and/or Class B common stock in transactions that are intended to qualify, in whole or in part, as tax deferred transactions for U.S. federal income tax purposes; |
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| The supervisor may not approve a third-party portfolio transaction even if it provides for more consideration than to be issued or paid pursuant to the consolidation. The supervisor does not expect that it would approve a third-party portfolio transaction unless the supervisor believes it is an adequate premium above the value expected to be realized over time from the consolidation. The supervisor has agreed that it will not accept a third-party offer unless it is unanimously approved by a committee which will include representatives of the supervisor and a representative of the Helmsley estate; |
| If the required percentage of the participants consent to the third-party portfolio proposal, participants in Empire State Building Associates L.L.C. and 60 East 42nd St. Associates L.L.C. who voted AGAINST the third-party portfolio proposal will be bought out regardless of whether there is a third-party portfolio offer at a price substantially below the exchange value of their participation interests; |
| At the time you vote on the third-party portfolio proposal, there will be significant uncertainties as to the terms of any third-party portfolio transaction, which may not be received until after the consent solicitation has been completed, including the amount of consideration you would receive if a third-party portfolio transaction is consummated. These uncertainties affect your ability to evaluate the third-party portfolio proposal. The supervisor may approve a third-party portfolio transaction which you may view as less favorable than the consolidation; and |
| The supervisor, the agents and their affiliates serve in their respective capacities with respect to each subject LLC and each private entity, and, as such, have conflicts of interest in connection with decisions concerning the terms of a third-party portfolio transaction. |
Ownership of Shares of Common Stock in the Company
The following is a summary of the material risks of ownership of shares of common stock in the company.
| There is no assurance as to the amount or source of funds for the estimated initial cash distributions of the operating partnership or the company, and the expected initial cash distributions to the participants following the consolidation could be less than the estimated cash distributions participants would receive from their respective subject LLCs; |
| All of the companys properties are located in Manhattan and the greater New York metropolitan area, in particular midtown Manhattan, and adverse economic or regulatory developments in this area could materially and adversely affect the company; |
| Adverse economic and geopolitical conditions in general and in Manhattan and the greater New York metropolitan area commercial office and retail markets in particular, could have a material adverse effect on the companys results of operations, financial condition and its ability to make distributions to its stockholders; |
| There can be no assurance that the companys renovation and repositioning program will be completed in its entirety in accordance with the anticipated timing or at the anticipated cost, or that the company will achieve the results it expects from the renovation and repositioning program, which could materially and adversely affect the companys financial condition and results of operations; |
| The company may be unable to renew leases, lease vacant space or re-lease space on favorable terms as leases expire, which could materially and adversely affect the companys financial condition, results of operations and cash flow; |
| The company is exposed to risks associated with property redevelopment and development that could materially and adversely affect its financial condition and results of operations; |
| The company depends on significant tenants in its office portfolio, including LF USA, Legg Mason, Thomson Reuters, Warnaco, and the Federal Deposit Insurance Corporation, which together represented approximately 18.4% of the companys total portfolios annualized base rent as of September 30, 2011; |
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| The companys dependence on rental income may materially and adversely affect its profitability, its ability to meet its debt obligations and its ability to make distributions to its stockholders; |
| The companys option properties are subject to various risks, and the company may not be able to acquire them; |
| Competition for acquisitions may reduce the number of acquisition opportunities available to the company and increase the costs of those acquisitions, which may impede the companys growth; |
| The observatory operations at the Empire State Building are not traditional real estate operations, and competition and changes in tourist trends may subject the company to additional risks; |
| The broadcasting operations at the Empire State Building are not traditional real estate operations, and competition and changes in the broadcasting of signals over air may subject the company to additional risks; |
| The companys outstanding indebtedness upon completion of the IPO reduces cash available for distribution and may expose the company to the risk of default under its debt obligations; |
| The continuing threat of a terrorist event may materially and adversely affect the companys properties, their value and the ability to generate cash flow; |
| The company may assume unknown liabilities in connection with the consolidation, which, if significant, could materially and adversely affect its business; |
| The departure of any of the companys key personnel could materially and adversely affect the company; |
| The companys Chairman, Chief Executive Officer and President has outside business interests that will take his time and attention away from the company, which could materially and adversely affect the company; |
| The companys operating performance and value are subject to risks associated with real estate assets and the real estate industry, the occurrence of which could materially and adversely affect the company; |
| The company has no operating history as a REIT or as a publicly-traded company and its lack of experience could materially and adversely affect the company; |
| Certain provisions of Maryland law could inhibit changes in control of the company, which could negatively affect the market price of the Class A common stock; |
| There will be no public market for the Class A common stock prior to the IPO and an active trading market may not develop or be sustained following the IPO, which may negatively affect the market price of shares of the Class A common stock and make it difficult for investors to sell their shares; |
| Cash available for distribution may not be sufficient to make distributions at expected levels; |
| Failure of the company to qualify or remain qualified as a REIT would subject the company to U.S. federal income tax and applicable state and local taxes, which would reduce the amount of cash available for distribution to the company shareholders; and |
| The REIT distribution requirements could require the company to borrow funds during unfavorable market conditions or subject the company to tax, which would reduce the cash available for distribution to the stockholders. |
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Conflicts of Interest and Benefits to the Supervisor and its Affiliates
From inception of the subject LLCs, the supervisor, the agents of the subject LLCs and their respective affiliates and related persons have served as supervisor, agents for groups of participants or in a similar capacity with respect to each subject LLC and each private entity with conflicts of interest and as such have conflicts of interest in connection with the consolidation. The supervisor and its affiliates will receive benefits as a result of the consolidation or a third-party portfolio transaction. These benefits and conflicts include:
| The Malkin Holdings group will receive 64,220,800 shares of Class A common stock, Class B common stock and operating partnership units, which they are entitled to receive and will be allocated to them in accordance with the subject LLCs and private entities organizational documents, and their interests in the management companies which will be allocated to them in accordance with the valuations of the management companies by the independent valuer, based on the hypothetical $10 per share exchange value arbitrarily assigned by the supervisor for illustrative purposes. The shares of common stock and operating partnership units that the Malkin Holdings group will receive have an aggregate value of $642,208,000, based on the hypothetical $10 per share exchange value that the supervisor arbitrarily assigned for illustrative purposes; |
| The amounts received by the supervisor and the Malkin Holdings group in respect of the override interests and participation interests generally will be in the form of operating partnership units instead of shares of common stock. In addition, the shares of common stock and operating partnership units issued to the Malkin Family in respect of their interests in the management companies are also intended to be issued on a tax deferred basis. As a result, unlike other holders of participation interests in the subject LLCs, the supervisor and its affiliates will receive their interests in what are expected to be tax-deferred transactions; |
| Following the consolidation, certain executives of the supervisor will be members of the senior management team and Anthony E. Malkin will be Chairman, Chief Executive Officer, President and a director of the company; |
| The company intends to enter into an employment agreement with Anthony E. Malkin providing for salary, bonus and other benefits, including severance upon a termination of employment under certain circumstances as described under ManagementEmployment Agreement, and it is expected that other members and officers of the supervisor will be officers and employees of the company; |
| Members, managers and officers of the supervisor, who will be employed by the company, will be indemnified by the company for certain liabilities and expenses incurred as a result of actions brought, or threatened to be brought, against them for actions taken as officers and as a director of the company and for actions taken on behalf of the supervisor and other management companies, in their capacities as such, including actions relating to the consolidation; |
| As part of the consolidation, the operating partnership intends to enter into a tax protection agreement with Peter L. Malkin and Anthony E. Malkin pursuant to which the operating partnership will agree to indemnify the Wien group and an additional third party investor in Metro Center (who was one of the original landowners and was involved in the development of the property) against certain tax liabilities if those tax liabilities result from (i) the operating partnerships sale, transfer, conveyance or other taxable disposition of four specified properties (First Stamford Place, Metro Center, 10 Bank Street and 1542 Third Avenue, which collectively represent approximately 17.8% of the companys annualized base rent as of September 30, 2011) to be acquired by the operating partnership in the consolidation, for a period of 12 years with respect to First Stamford Place and for the later of (x) eight years or (y) the death of both of Peter L. Malkin and Isabel W. Malkin for the three other properties, (ii) the operating partnership failing to maintain until maturity the indebtedness secured by these properties or failing to use commercially reasonable efforts to refinance such indebtedness upon maturity in an |
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amount equal to the principal balance of such indebtedness, or, if the operating partnership is unable to refinance such indebtedness at its current principal amount, at the highest principal amount possible, or (iii) the operating partnership failing to make available to any of these investors the opportunity to guarantee, or otherwise bear the risk of loss, for U.S. federal income tax purposes, of their allocable share of $160 million of aggregate indebtedness meeting certain requirements, until such investor owns less than the aggregate number of operating partnership units and shares of common stock equal to 50% of the aggregate number of such units and shares such investor received in the consolidation; |
| The company will release (i) Anthony E. Malkin and Peter L. Malkin from all claims, liabilities, damages and obligations against them related to their ownership of interests in any of the subject LLCs or the private entities and (ii) certain members of the companys senior management team who were officers or employees of the supervisor from all claims, liabilities, damages and obligations against them related to their ownership in the subject LLCs, the private entities and the management companies and their employment with the management companies that exist at the closing of the consolidation, other than breaches by them or entities related to them, as applicable, of the employment and non-competition agreement and the contribution agreements and the merger agreements entered into by them and these entities in connection with the consolidation; |
| Anthony E. Malkin and Peter L. Malkin will be released from or indemnified for liabilities arising under certain bad boy guarantees with respect to approximately $1.12 billion of the mortgage loans (including currently undrawn amounts) on the properties, which will be assumed by the company upon closing of the consolidation. In connection with this assumption, the company will seek to have the guarantors released from these guarantees and to have the operating partnership assume any such guarantee obligations as a replacement guarantor. To the extent the lenders do not consent to the release of these guarantors, and they remain guarantors on assumed indebtedness following the consolidation, the operating partnership will enter into indemnification agreements with the guarantors pursuant to which the operating partnership will be obligated to indemnify such guarantors for any amounts paid by them under guarantees with respect to such assumed indebtedness; |
| The supervisor and the Malkin Family may hold a greater interest (including their share of distributions in respect of the override interests) in other subject LLCs or private entities than in your subject LLC, including, in the case of 250 West 57th St. Associates L.L.C., the private entity which is the operating lessee of the property it owns. Accordingly, they would be benefited to the extent that a greater portion of the exchange value is allocated to other subject LLCs or private entities than to your subject LLC; |
| After the consolidation, the company intends to enter into management agreements with the entities that own interests in the excluded properties and excluded businesses, which entities are owned in part by Anthony E. Malkin. There may be conflicts of interest in the allocation of his time between the company and his other interests; |
| The operating partnership has entered into option agreements with three private entities controlled by the supervisor; |
| The company intends to enter into management agreements with the entities that own long-term leasehold, sub-leasehold and/or sub-subleasehold interests in the option properties, which entities are owned in part by Anthony E. Malkin, together with members of the Malkin Family and supervised by the supervisor; |
| Affiliates of the supervisor also will retain interests in the option properties, certain other properties to which the company will provide management services and certain excluded businesses. Affiliates of the supervisor are subject to conflicts of interest in connection with the terms of these arrangements; |
| Effective upon consummation of the consolidation, the company expects to grant long-term investment plan units and/or restricted shares of Class A common stock, subject to certain vesting requirements to each of its executive officers, including officers of the supervisor. |
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| The supervisor and its affiliates may have a conflict of interest in deciding whether to approve a third-party portfolio transaction and with respect to the terms of the third-party portfolio transaction due to the benefits that the Malkin Holdings group could receive in that transaction and |
| The Malkin Family could receive tax benefits from a third-party portfolio transaction that are more favorable than those received by other participants. |
Principal Components of the Consolidation
The consolidation will consist of the following principal components:
| The subject LLCs that approve the consolidation will contribute their assets to the operating partnership or subsidiaries of the operating partnership. As a result, the company will own an interest in each subject LLCs property indirectly through its ownership of the operating partnership, and the operating partnership or its subsidiaries generally will assume each subject LLCs liabilities. The company will issue Class A common stock to the participants in the subject LLCs (other than the supervisor and the Wien group who will receive operating partnership units), and participants will have a right to elect to exercise the cash option for up to [12-15]% of the shares of Class A common stock issuable to them in the consolidation. Each subject LLC will enter into a contribution agreement conditioned on (i) the requisite consent of the participants in the subject LLC; (ii) the closing of the IPO and the listing of the Class A common stock on the NYSE or another national securities exchange; (iii) the closing of the consolidation no later than December 31, 2014; (iv) the participation of Empire State Building Associates L.L.C. and the private entity that is the operating lessee of the Empire State Building participating in the consolidation; and (v) other customary conditions; |
| Based on the hypothetical exchange value of $10 per share which the supervisor has arbitrarily assigned for illustrative purposes, the company will issue to participants in the private entities and the equityholders of the management companies 114,156,728 operating partnership units having an exchange value of $1,141,567,280; 6,291,637 shares of Class A common stock having an exchange value of $62,916,376; and 835,157 shares of Class B common stock having an exchange value of $8,351,574 (not including any additional shares of Class A common stock that may be issued to charitable organizations as described below). In addition, participants in the private entities who are non-accredited investors who would have been entitled to 6,978,965 shares of common stock on a fully diluted basis having an exchange value of $69,789,652, will receive cash at a price per share equal to the offering price in the IPO. Participants in the private entities who are charitable organizations, including the Helmsley estate, who would have been entitled in the aggregate to 104,600,982 shares of common stock on a fully diluted basis having an exchange value of $1,046,009,823 that have made a cash election will receive cash, subject to a cut back (at a price per share equal to the IPO price reduced by the underwriting discount per share paid by the company in the IPO) and will receive Class A common stock for the balance; |
| As part of the consolidation, each private entity will contribute its property interest and other assets, other than interests in certain properties excluded from the consolidation, to the operating partnership or its subsidiary, in exchange for operating partnership units or, at the option of the participants in the private entities, shares of common stock and/or cash. The private entities (including the operating lessees) with the required consent of their participants, have agreed to transfer their interests in the properties, including their interests in the operating lessees, as part of the consolidation. Each private entity has entered into a contribution agreement conditioned on (i) the closing of the IPO and the listing of the Class A common stock on the NYSE or another national securities exchange; (ii) the closing of the consolidation no later than December 31, 2014; (iii) the participation of Empire State Building |
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Associates L.L.C. and the private entity which owns an interest in the Empire State Building participating in the consolidation; (iv) the delivery of a fairness opinion by the independent valuer to the private entities and (v) other customary conditions; |
| The company will acquire pursuant to a contribution agreement with the supervisor and the Wien group the participation interests and override interests they hold in the subject LLCs in exchange for operating partnership units; |
| Accredited investors in the private entities and the management companies which had an option to elect operating partnership units at the time that they made their election of consideration in the private solicitation had an option to elect to receive one share of Class B common stock in lieu of one operating partnership unit for every 50 operating partnership units such participant would otherwise receive in the consolidation. Each outstanding share of Class B common stock will entitle the holder to 50 votes on each matter on which holders of Class A common stock are entitled to vote, including the election of directors. The Class B common stock provides the holders thereof voting rights that generally correspond to their economic interests in the company, assuming such accredited investor elected to receive the maximum amount of Class B common stock to which it was entitled in the consolidation. No accredited investor receiving shares of Class B common stock will hold shares of common stock with an aggregate voting power that exceeds such accredited investors economic interest in the company. Shares of Class B common stock may be converted into Class A common stock at any time and are subject to automatic conversion into an equal number of shares of Class A common stock upon a direct or indirect transfer of Class B common stock or certain transfers of the operating partnership units held by the holder of Class B common stock to a person other than a qualified transferee; |
| The company will acquire through merger the supervisor and the other management companies, which are owned by the same persons as own the supervisor. Holders of interests in the management companies will receive shares of common stock or operating partnership units in exchange for the interests in such entities; |
| Charitable organizations, including the Helmsley estate were granted a cash option because the payment of cash to such charitable organizations pursuant to the cash option is not expected to affect the companys ability to meet the conditions for obtaining the reduced New York City transfer tax rate applicable to REITs. These charitable organizations had the option to receive cash at a price per share equal to the IPO price per share (reduced by the underwriting discount per share paid by the company in the IPO) to the extent of cash available from the IPO for this purpose. To the extent that there is not sufficient available cash to pay in full the cash payable to electing charitable organizations, there will be a pro rata reduction in the cash received by each electing charitable organization and the balance will be in the form of Class A common stock; |
| Pursuant to the cash option referred to in the preceding paragraph, the Helmsley estate and other charitable organizations have exercised the cash option as to all of the operating partnership units issuable to them in the consolidation (which based on the exchange values represents 25.64% for the Helmsley estate and 0.60% for the other charitable organizations, respectively, of the common stock on a fully-diluted basis or $1.046 billion of the exchange value in the aggregate) and elected to receive Class A common stock if there is insufficient available cash. The Helmsley estate will also receive an amount equal to any New York City transfer tax savings resulting from its status as a charitable organization. In addition, the company and the Helmsley estate have also agreed that if the IPO is upsized after the effective time of the registration statement filed in connection with the IPO or if the underwriters in the IPO exercise their option to purchase additional shares of Class A common stock, all additional net proceeds from the sale of Class A common stock issued by the company in such upsize or option will be allocated solely to the Helmsley estate for purposes of the consolidation at the same value as the cash option described above; |
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| The company has entered into a representation, warranty and indemnity agreement with Anthony E. Malkin and his siblings, Scott D. Malkin and Cynthia M. Blumenthal, pursuant to which they have made limited representations and warranties to the company and the operating partnership regarding the entities, properties and assets to be contributed to the company and agreed to indemnify the company and the operating partnership for 12 months following the closing of the consolidation for breaches of such representations subject to a $1 million deduction and threshold of up to a maximum of $25 million. Other than these individuals, none of the Malkin Family, or other participants in the subject LLCs, private entities or management companies, will provide the company with any indemnification; |
| The operating partnership intends to enter into a tax protection agreement with Anthony E. Malkin and Peter L. Malkin pursuant to which the company will agree to indemnify the Wien group and an additional third party investor in Metro Center (who was one of the original landowners and was involved in the development of the property) against certain tax liabilities if those tax liabilities result from (i) the operating partnerships sale, transfer, conveyance or other taxable disposition of four specified properties (First Stamford Place, Metro Center, 10 Bank Street and 1542 Third Avenue, which collectively represent approximately 17.8% of the companys annualized base rent as of September 30, 2011) to be acquired by the operating partnership in the consolidation, for a period of 12 years with respect to First Stamford Place and for the later of (x) eight years or (y) the death of both of Peter L. Malkin and Isabel W. Malkin for the three other properties, (ii) the operating partnership failing to maintain until maturity the indebtedness secured by these properties or failing to use commercially reasonable efforts to refinance such indebtedness upon maturity in an amount equal to the principal balance of such indebtedness, or, if the operating partnership is unable to refinance such indebtedness at its current principal amount, at the highest principal amount possible, or (iii) the operating partnership failing to make available to any of these investors the opportunity to guarantee, or otherwise bear the risk of loss, for U.S. federal income tax purposes, of their allocable share of $160 million of indebtedness in the aggregate, until such investor owns less than the aggregate number of operating partnership units and shares of common stock equal to 50% of the aggregate number of such units and shares such investor received in the consolidation; |
| The company intends to enter into management agreements with the entities that own interests in the excluded properties and the excluded businesses; |
| The operating partnership has executed option agreements with three private entities, one of which is the ground lessee of the property located at 112-120 West 34th Street and fee owner of the property located at 122 West 34th Street, one of which is the operating lessee of 112-122 West 34th Street and one of which is the ground lessee of 1400 Broadway, pursuant to which each of these private entities has granted to the operating partnership an option to acquire fee, long-term leasehold, sub-leasehold and/or sub-subleasehold interests in the option properties, as applicable. Concurrent with the closing of the consolidation, the company intends to enter into management agreements with respect to each of the option properties; |
| As a result of the consolidation, the company will assume approximately $1.04 billion of total debt (based on September 30, 2011 pro forma outstanding balances), and the company expects to have approximately $179.1 million of additional borrowing capacity under its loans on a pro forma basis; |
| The company will sell shares of Class A common stock in the IPO and will contribute the net proceeds from the IPO to the operating partnership in exchange for operating partnership units and |
| Effective upon consummation of the consolidation, the company expects to grant long-term incentive plan units and/or restricted shares of Class A common stock, subject to certain vesting requirements, to certain members of the senior management team, including officers of the supervisor. |
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The supervisor and its principals and certain of the private entities own interests in other properties, including the option properties, assets and businesses that will not be contributed to the company. The supervisor provides supervisory or advisory services with respect to certain of these properties. The company intends to enter into management agreements with the entities that own interests in these excluded properties and excluded businesses after consummation of the consolidation.
The company and the supervisor have required that the consolidation be completed no later than December 31, 2014.
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The following charts show the organization of each subject LLC prior to the consolidation:
Empire State Building Associates L.L.C.
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60 East 42nd St. Associates L.L.C.
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250 West 57th St. Associates L.L.C.
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The following chart shows the organization of the company after the consolidation and the IPO:
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What You Will Receive if Your Subject LLC is Included in the Consolidation
If the consolidation is approved by the participants in your subject LLC and is consummated, you will receive shares of Class A common stock as consideration for your participation interest. You also will have the option to elect to exercise the cash option, as more fully described below.
Class A Common Stock. You will receive Class A common stock for your participation interest unless you receive cash on exercise of the cash option, as described below.
Based upon the appraisal that the independent valuer prepared, the number of shares of Class A common stock you will receive was allocated as follows:
| The exchange values were first determined for each subject LLC, each private entity and the management companies as follows: |
| The appraised values of the interests in the properties owned by the subject LLCs, the private entities and the management companies were determined by the independent valuer, |
| The appraised values were adjusted by the independent valuer as described more fully in Reports, Opinions and Appraisals to determine the exchange values and |
| The supervisor reviewed and approved the exchange values. |
| To allocate the shares of Class A common stock, the supervisor arbitrarily assigned a hypothetical $10 per share exchange value for illustrative purposes and arbitrarily assumed that the enterprise value of the company is equal to the aggregate exchange value of all of the contributed assets. The independent valuer allocated to each subject LLC a number of shares of Class A common stock equal to the exchange value of its assets divided by $10. See the section entitled SummaryAllocation of Consideration in the Consolidation. |
In accordance with each subject LLCs organizational documents, all of the shares of Class A common stock were allocated to the participants holding participation interests in the subject LLC, after taking into account the allocations in respect of the supervisors override interest.
The allocation of Class A common stock to the participants in this prospectus/consent solicitation is based on the hypothetical $10 per share exchange value arbitrarily assigned by the supervisor to illustrate the number of shares of common stock that a participant would receive if the enterprise value of the company determined in connection with the IPO were the same as the aggregate exchange value and the IPO price were $10 per share of Class A common stock. The actual number of shares of common stock, on a fully-diluted basis, issued in the consolidation will equal the enterprise value (which will be allocated to each of the subject LLCs, the private entities and the management companies in proportion to their relative share of the aggregate exchange value) divided by the IPO price. The enterprise value will be determined by the market conditions and the performance of the portfolio at the time of the IPO. The enterprise value may be higher or lower than the aggregate exchange value. The exchange value used herein is based on the appraisal prepared by the independent valuer. Historically, in a typical initial public offering of a REIT, the enterprise value and initial public offering price are at a discount to the net asset value of the REITs portfolio of properties, which in turn may be above or below the aggregate exchange value.
Pursuant to lock-up agreements, participants in the subject LLCs and private entities may not sell or otherwise transfer or encumber any operating partnership units or shares of common stock or securities convertible or exchangeable into operating partnership units or shares of common stock owned by the company or such persons at the completion of the IPO or thereafter acquired by them for a period of 180 days with respect to the company and one year with respect to a participant after the public offering pricing date, in each case without first obtaining the written consent of the representatives of the underwriters in the IPO, provided, that, commencing on the date that is 180 days after the public offering pricing date, a participant (other than the Malkin
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Family, the companys directors and members of the companys senior management team) may sell up to 50% of the shares of common stock or securities convertible or exchangeable into Class A common stock (including operating partnership units) held by it. The company may agree to a longer lock-up period not to exceed 18 months if the company determines based on market conditions at the time of the IPO that the lock-up period currently proposed would adversely affect the market price of the Class A common stock in the IPO.
Cash Option. Participants in the subject LLCs have the option to receive cash for up to [12-15] % of the shares of Class A common stock issuable to them in the consolidation from a portion of the net proceeds of the IPO. If you exercise the cash option, the amount that you will receive per share of common stock will equal the IPO price per share less an amount equal to the underwriting discount per share paid by the company in the IPO. The participants in the subject LLCs are being provided the cash option, because, unlike the accredited investors in the private entities, participants in the subject LLCs will not have the option to receive operating partnership units in a transaction that is intended to be tax deferred. Participants in the subject LLCs are being provided with the option to enable them to receive cash to cover a portion of the U.S. federal income taxes payable in connection with the shares of Class A common stock issued to them in the consolidation. The cash option is limited to [12-15]% to assist the company in meeting the conditions for obtaining the reduced New York City and New York State transfer tax rate applicable to REITs, which the supervisor believes may be available with respect to a portion of the consolidation transfers, depending on the circumstances of the consolidation and certain events following the consolidation.
Why the Supervisor Believes the Consolidation is Fair to You
The supervisor believes that the terms of the consolidation are fair and that the consolidation will allow you to achieve liquidity and maximize the value of your investment in your subject LLC for the following principal reasons, as well as allowing the company to achieve costs savings, faster decision-making and greater and more efficient access to capital, all of which should increase the value of your investment:
| The exchange values of each of the subject LLCs, the private entities and the management companies are based on the appraisal by Duff & Phelps, LLC, the independent valuer. The independent valuer determined the exchange value, which was reviewed and approved by the supervisor. The supervisor believes that the allocations in accordance with the appraisal by the independent valuer were in the best interests of the participants; |
| The supervisor believes that the expected benefits of the consolidation to you outweigh the risks and potential detriments of the consolidation to you. Some of those benefits are described above. The risks and potential detriments are discussed in Risk Factors; |
| The supervisor considered alternatives to the consolidation including the continuation of the subject LLCs without change and the liquidation of the subject LLCs and the distributions of the net proceeds to you (as described below). The supervisor does not believe that the subject LLCs could realize their allocable share of the value of the properties through a sale of the interests in the properties held by them. The supervisor believes that, over time, the likely value of the Class A common stock will be higher than the value of the consideration you would receive from any of the other alternatives as a result of increased efficiencies, growth opportunities and other opportunities for value enhancement; |
| The supervisor considered that participants will be provided a cash option for up to [12-15]% of the shares of Class A common stock issuable to them in the consolidation if their subject LLC approves the consolidation. The cash option offers an alternative to those participants that desire immediate liquidity without the need to sell the portion of the shares of Class A common stock that they otherwise would receive and |
| The supervisor has adopted and concurs with the conclusions of the fairness opinion from and the appraisal by the independent valuer, which are described below. |
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The independent valuer has appraised the properties utilizing solely the income approach to valuation. The income approach is based on the assumption that the value of a property or portfolio of properties can be represented by the present value of future cash flows. These cash flows are compiled into a value through either direct capitalization or discounted cash flow analysis, or a combination of the two. The indicated value by the income approach represents the estimated amount an investor would pay for the expected future stream of net cash flow generated by a property or a portfolio of properties (calculated as gross income less operating expenses, capital expenditures, and leasing costs) generated by a property or a portfolio of properties. As used herein, market value is defined by the Appraisal of Real Estate, Thirteenth Edition, as follows: The most probable price, as of a specified date, in cash, or in terms equivalent to cash, or in other precisely revealed terms, for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to fair sale, with the buyer and seller each acting prudently, knowledgeably and for self-interest, and assuming that neither is under undue duress.
The income approach was relied upon in determining the market value of the properties owned by the subject LLCs and private entities (with the exception of the Stamford, CT land which utilized the sales comparison approach). The independent valuer believes that the income approach is the approach utilized by typical investors and other market participants in the local market of the properties owned by the subject LLCs and private entities, and was therefore determined to be the most reliable indicator of market value.
In performing the appraisal, the independent valuer conducted investigations and inquiries as it deemed appropriate in establishing its estimates of value and made assumptions and identified qualifications and limitations that it considered necessary in its findings. The independent valuers opinion of the estimated value of the properties owned by each of the entities is as of July 1, 2011. They do not necessarily reflect the sales prices of the properties or portfolio that would be realized in actual sales of the properties or portfolio. These prices could be higher or lower than the appraised value of the properties or portfolio.
A summary of the findings of the independent valuer is attached as Appendix B to this prospectus/consent solicitation.
The independent valuer provided a written summary of its determination as to the fairness, from a financial point of view, to each subject LLC and private entity and the participants in each subject LLC and each private entity, of the allocation of consideration (Class A common stock, Class B common stock, operating partnership units or cash consideration) (i) among each subject LLC, each private entity and the management companies and (ii) to the participants in each subject LLC and each private entity (without giving effect to any impact of the consolidation on any particular participant other than in its capacity as a participant in each of the subject LLCs and each of the private entities).
The fairness opinion, dated , 2012, is attached as Appendix A to this prospectus/consent solicitation. You should read the independent valuer opinion in its entirety with respect to the assumptions made, matters considered and limits of the reviews undertaken by the independent valuer in rendering its opinion.
Based on the analysis more fully described under Reports, Opinions, and AppraisalsFairness opinion, and subject to the assumptions, limitations and qualifications discussed in this prospectus/consent solicitation and in its fairness opinion, Duff & Phelps has delivered its opinion to the effect that, subject to the assumptions, limitations and qualifications contained in its opinion, the allocation of consideration (Class A common stock, Class B common stock, operating partnership units or cash consideration) (i) among each subject LLC, each private entity and the management companies is fair from a financial point of view, and (ii) to the participants in
43
each subject LLC and each private entity is fair from a financial point of view (without giving effect to any impact of the consolidation on any particular participant other than in its capacity as a participant in each of the subject LLCs and each of the private entities).
Alternatives to the Consolidation
In determining whether to propose and recommend the consolidation, the supervisor considered several alternatives. The following discussion summarizes the two principal alternatives to the consolidation that each subject LLC could have pursued. Each of the alternatives that the supervisor considered, including the two principal alternatives discussed below, is described in more detail under the section entitled The ConsolidationAlternatives to the Consolidation.
| Liquidation through the sale by each subject LLC of its interest in its property, either individually or as part of a third-party portfolio transaction, followed by a distribution of the net proceeds to its participants or |
| Continued management of each subject LLC as currently structured. |
Advantages and Disadvantages of Liquidation Alternative. The supervisor believes that there would be advantages of a liquidation of your subject LLC, including:
| Liquidation provides you with liquidity from a sale of an interest in the property owned by your subject LLC. You would receive your share of the net proceeds obtained from a sale of the interest in the property of your subject LLC; |
| The amount that you would receive would not depend on the stock markets valuation of the company, but rather your share of the consideration received from a sale of the interests in the property of your subject LLC and |
| You would avoid the risks of continued ownership of your subject LLC or ownership of the company. |
The supervisor believes that there would be disadvantages to a liquidation of your subject LLC, including:
| The interest in the property owned by the subject LLC on its own may not create demand from investors, may not be as attractive for financing for investors to acquire the property and has a higher risk profile than the interest in the property as part of a portfolio; |
| You would not participate in potential increases in value resulting from anticipated operating efficiencies, marketing efficiencies, capital market efficiencies and an improved governance structure; |
| You would not participate in potential increases in value resulting from (a) enhanced performance of the existing portfolio due to leasing available and expiring space at higher rents following the recent renovations and repositioning of the initial properties operated as a branded portfolio and (b) potential additional investments and |
| The supervisor does not believe that the subject LLCs could realize their allocable share of the value of the properties through a sale of the interests in the properties held by them. The operating lessees have agreed to transfer their interests in the properties as part of the consolidation, regardless of whether a subject LLC approves the consolidation, and, if the consolidation closes, it may not be possible for a subject LLC to realize its allocable share of the value of the entire property through a sale. |
While the supervisor believes the consolidation will provide greater benefits to participants than a liquidation, the supervisor believes it is in the best interest of the participants to approve the third-party portfolio proposal, which will allow the supervisor to consider a third-party offer, if one is made, as an alternative to the consolidation.
44
Advantages and Disadvantages of Continuation Alternative. The supervisor believes there would be advantages to the continued operation of the subject LLCs, including:
| The participants would continue to receive regular monthly distributions from Empire State Building Associates L.L.C., 60 East 42nd St. Associates L.L.C. and 250 West 57th St. Associates L.L.C.; |
| The subject LLCs eventually may sell their interests in the properties and distribute the net proceeds, although the supervisor does not believe that such a sale would optimize the value of the participants participation interests; |
| Continuing the subject LLC without change avoids the risks related to the consolidation as described in this prospectus/consent solicitation and |
| Each subject LLC would retain the individual benefits of ownership of its interest in its property. |
The supervisor believes that there would be disadvantages to the continued operation of the subject LLCs, including:
| The interest in the property owned by the subject LLC on its own may not create demand from investors, may not be attractive for financing for investors to acquire the property and has a higher risk profile than the interest in the property as a portfolio. |
| Your investment would continue to be illiquid because your participation interest is not freely transferable and there is no established public trading market or market valuation for your participation interest; |
| The subject LLCs have limited roles in property operations; |
| The operation of the subject LLC is inefficient and costly in general and participants do not share in the same economic benefit that they would receive through ownership and operation of a property by a single entity with a modern governance structure; |
| The subject LLCs have a cumbersome and costly approval process for certain actions, including financings and |
| Your subject LLC owns an interest in a single property and is not diversified. |
The following table sets forth the budgeted annual distributions of the subject LLCs for the year ended December 31, 2012:
Subject LLC |
Budgeted Annual Distribution of Subject LLC for the year ending December 31, 2012 Per $1,000 Original Investment(1) |
|||
Empire State Building Associates L.L.C. |
$ | 118 | (2) | |
60 East 42nd St. Associates L.L.C. |
$ | 150 | (3) | |
250 West 57th St. Associates L.L.C. |
$ | 200 | (4) |
(1) | The budgeted annual distributions are based on budgeted cash flow of the subject LLCs for the purpose of calculating ranges of going-concern values. They are presented for comparative purposes only. In the past the amount of cash flow of the subject LLCs available for distribution has been reduced by capital expenditures and other expenses of the subject LLCs. The actual amount of distributions will be based on numerous factors. Accordingly, participants should not treat this budgeted annual distribution as the amount that they would have received if the subject LLC continued its operations. |
(2) | The budgeted annual distribution represents distributions out of base rent. Additional distributions of $0, $102 and $0, per $1,000 original investment, were made out of additional rent for the years ended December 31, 2009, December 31, 2010 and December 31, 2011, respectively. |
(3) | The budgeted annual distribution represents distributions out of base rent. Additional distributions of $306, $0 and $0, per $1,000 original investment, were made out of additional rent for the years ended December 31, 2009, December 31, 2010 and December 31, 2011, respectively. |
(4) | The budgeted annual distribution represents distributions out of base rent. Additional distributions of $1,162, $1,082 and $712, per $1,000 original investment, were distributed out of additional rent, for the years ended December 31, 2009, December 31, 2010 and December 31, 2011, respectively. |
45
Over the last 10 years, public REITs investing in similar types of properties in similar geographic areas to the company have paid an average dividend yield per annum in the range of 2.0% to 4.0% of their market price. These yields change as the market price of these public peer companies increases or decreases. The company anticipates that it will pay a quarterly dividend on its IPO price within or approximate to the range of dividend yields associated with these public peer companies existing at the time of the companys IPO. However, the companys actual dividend yield could be higher or lower than this range of dividend yields, and the company cannot estimate at this time the amount of dividends that it will be able to pay after closing of the consolidation and the IPO. The actual dividend yield on the companys Class A common stock will depend on the market conditions at the time of the IPO and the companys cash available for distribution at the time of the IPO. Further, any distributions declared by the company will be authorized by its board of directors in their sole discretion out of funds legally available therefor and will be dependent upon a number of factors, including restrictions under applicable law, the capital requirements of the company and the distribution requirements necessary to maintain the companys qualification as a REIT. These factors include the distributable income generated by operations, the principal and interest payments on debt, capital expenditure levels, the companys policy with respect to cash distributions and the capitalization and asset composition of the company, which will vary based on the private entities and the subject LLCs that ultimately participate in the consolidation.
Voluntary Pro Rata Reimbursement Program for Expenses of Legal Proceedings with Former Property Manager and Leasing Agent
In 1997, the supervisor commenced litigation and arbitration proceedings, which is referred to herein as the former property manager and leasing agent legal proceedings, to remove Helmsley-Spear, Inc. (after it was sold by entities controlled by Leona M. Helmsley), the former property manager and leasing agent, as property manager and leasing agent of the properties owned by the subject LLCs.
The successful outcome of the former property manager and leasing agent legal proceedings and the settlement thereof enabled the subject LLCs to conclude the termination of the former property manager and leasing agent as property manager and leasing agent (with the release of claims) and engage new independent property managers (except Empire State Building Associates L.L.C., which later became self-managed) and leasing agents and to launch strategic improvements and Malkin branding programs for the properties that the subject LLCs own. The supervisor also added engineering, marketing and tax/accounting staff to compensate for the former property manager and leasing agents deficiency. While the supervisor has believed from inception that it is entitled to be reimbursed for these litigation and arbitration expenses, it, together with Peter L. Malkin, advanced all costs pending the outcome.
Now, with the impending consolidation, the supervisor requests of each participant in each subject LLC, on a voluntary and individual basis, consent that a portion of your distributions to be received in connection with the consolidation or a third-party portfolio transaction, as applicable, be applied to reimburse the supervisor and Peter L. Malkin for a pro rata share of such advances, including interest at prime, from the date of each such advance. The same voluntary pro rata reimbursement program has been approved by holders representing 72.36% of the interests in the 13 private entities and other entities supervised by the supervisor to which the proposal has been made. These approvals include the Helmsley estate, which as part of an agreement with the supervisor covering this and other matters, has paid the voluntary pro rata reimbursement to the supervisor for its pro rata share of costs advanced, plus interest, which totaled $5,021,048.
If you consent to the voluntary pro rata reimbursement program, the supervisor and Peter L. Malkin will be reimbursed for your pro rata share of costs, plus interest, previously incurred out of your share of the excess cash of your subject LLC that is being distributed to participants, and, to the extent that is insufficient, the consideration that you would receive in the consolidation or the consideration that you would receive in a third-party portfolio transaction, as applicable, will be reduced by the balance and such balance would be paid to the
46
supervisor and Peter L. Malkin in shares of Class A common stock, if the consolidation is consummated, or out of distributions that you would receive from the proceeds of a third-party portfolio transaction, if consummated, or out of distributions from operations of the subject LLC. To the extent that the supervisor and Peter L. Malkin have not otherwise been reimbursed from distributions in connection with the consolidation, 50% of any distributions to be paid to you in excess of your share of aggregate monthly distributions by the subject LLC equal to $3,889,333 per annum, $1,046,320 per annum and $720,000 per annum, respectively, for Empire State Building Associates L.L.C., 60 East 42nd St. Associates L.L.C. and 250 West 57th St. Associates L.L.C. for the period commencing January 1, 2008 (including any cumulative deficiency from prior months) will be applied to reimburse the supervisor and Peter L. Malkin for a pro rata share of such advances, including interest at prime from the date of each such advance, until your pro rata share of the costs is paid in full. Cumulative distributions equal to the target amount have been made for the period from January 1, 2008 through the date hereof and therefore there are no past cumulative deficiencies.
The table below shows the amount to be received by the supervisor out of the distributions of each consenting participant for each $1,000 of original investment by a participant pursuant to the voluntary pro rata reimbursement program:
Exchange Value of Shares of Common Stock to be Received by Participants per $1,000 Original Investment |
Voluntary Reimbursement | |||||||||||
Per $1,000 Original Investment(1) |
Total | |||||||||||
Empire State Building Associates L.L.C. |
$ | 33,085 | $ | 101 | $ | 3,329,234 | ||||||
60 East 42nd St. Associates L.L.C. |
$ | 38,972 | $ | 236 | $ | 1,653,504 | ||||||
250 West 57th St. Associates L.L.C. |
$ | 35,722 | $ | 204 | $ | 733,795 |
(1) | Empire State Building Associates L.L.C.s, 60 East 42nd St. Associates L.L.C.s and 250 West 57th St. Associates L.L.C.s share of the aggregate voluntary reimbursement (before any reimbursements) is $3,150,896, $1,564,930, and $694,487, respectively, plus interest. The amount shown in the table includes accrued interest through September 30, 2011 and does not include interest which will accrue subsequent to September 30, 2011. |
The consent to the voluntary pro rata reimbursement program is independent of your vote on the consolidation. Thus, you can consent to the program whether you voted FOR, AGAINST, ABSTAIN or failed to vote on the consolidation and the third-party portfolio proposal. Your failure to consent to the program will not affect whether or not the subject LLC participates in the consolidation or a third-party portfolio transaction.
See Voluntary Pro Rata Reimbursement Program for Expenses of Legal Proceedings with Former Property Manager and Leasing Agent.
Allocation of Consideration in the Consolidation
The following table sets forth for each subject LLC, each private entity and the management companies:
| the exchange value of each subject LLC, each private entity and the management companies; |
| the percentage of total exchange value and percentage of total shares of common stock, on a fully-diluted basis, to be issued; |
| the number of shares of common stock, on a fully-diluted basis, to be allocated to each subject LLC, each private entity and the management companies based on the hypothetical exchange value of $10 per share arbitrarily assigned by the supervisor for illustrative purposes, including the number of operating partnership units to be allocated on account of the override interests of the supervisor and the Malkin Holdings group; |
47
| the value of common stock or operating partnership units based on the hypothetical exchange value of $10 per share arbitrarily assigned by the supervisor for illustrative purposes for each $1,000 of original investment in each subject LLC and its operating lessee; |
| the book value (deficit) of the assets determined in accordance with U.S. generally accepted accounting principles, which is referred to herein as GAAP, per $1,000 of original investment in each subject LLC and its operating lessee; and |
| the number of shares of common stock, on a fully-diluted basis, per $1,000 original investment in each subject LLC and its operating lessee: |
Per $1,000 Original Investment (except as otherwise noted) |
||||||||||||||||||||||||
Entity(1) |
Total Exchange Value(2)(3) |
Percentage of Total Exchange Value and Percentage of Total Shares of Common Stock Issued, on a Fully-Diluted Basis(4) |
Number of Shares of Common Stock, on a Fully-Diluted Basis(4)(5) |
Value of Shares of Common Stock or Operating Partnership Units(3)(6) |
GAAP Book Value (Deficit) as of September 30, 2011 |
Number of Shares of Common Stock, on a Fully-Diluted Basis(5) |
||||||||||||||||||
Empire State Building Associates L.L.C. |
||||||||||||||||||||||||
Participants |
$ | 1,091,798,057 | 27.4 | % | 109,179,806 | $ | 33,085 | ($102 | ) | 3,308 | ||||||||||||||
Overrides(7) |
$ | 117,644,229 | 3.0 | % | 11,764,423 | NA | NA | NA | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 1,209,442,285 | 30.4 | % | 120,944,229 | |||||||||||||||||||
60 East 42nd St. Associates L.L.C. |
||||||||||||||||||||||||
Participants |
$ | 272,804,500 | 6.8 | % | 27,280,450 | $ | 38,972 | ($1,773 | ) | 3,897 | ||||||||||||||
Overrides(7) |
$ | 30,202,722 | 0.8 | % | 3,020,272 | NA | NA | NA | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 303,007,222 | 7.6 | % | 30,300,722 | |||||||||||||||||||
250 West 57th St. Associates L.L.C. |
||||||||||||||||||||||||
Participants |
$ | 128,597,641 | 3.2 | % | 12,859,764 | $ | 35,722 | ($472 | ) | 3,572 | ||||||||||||||
Overrides(7) |
$ | 13,488,627 | 0.3 | % | 1,348,863 | NA | NA | NA | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 142,086,267 | 3.5 | % | 14,208,627 | |||||||||||||||||||
Empire State Building Company L.L.C.(8)(9) |
||||||||||||||||||||||||
Members and Participants |
$ | 1,091,721,347 | 27.4 | % | 109,172,134 | $ | 10,894,423 | $ | 2,713,710 | 1,089,442 | ||||||||||||||
Overrides(7)(10) |
$ | 98,054,234 | 2.5 | % | 9,805,423 | NA | NA | NA | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 1,189,775,581 | 29.9 | % | 118,977,558 | |||||||||||||||||||
Lincoln Building Associates L.L.C.(11) |
||||||||||||||||||||||||
Members |
$ | 258,229,176 | 6.5 | % | 25,822,918 | $ | 258,229 | $ | 53,046 | 25,823 | ||||||||||||||
Overrides(7) |
$ | 28,692,131 | 0.7 | % | 2,869,213 | NA | NA | NA | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 286,921,306 | 7.2 | % | 28,692,131 | |||||||||||||||||||
Fisk Building Associates L.L.C.(12) |
||||||||||||||||||||||||
Members and Participants |
$ | 91,818,702 | 2.3 | % | 9,181,870 | $ | 918,187 | $ | 254,767 | 91,818 | ||||||||||||||
Overrides(7) |
$ | 39,468,735 | 1.0 | % | 3,946,873 | NA | NA | NA | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 131,287,437 | 3.3 | % | 13,128,744 | |||||||||||||||||||
1333 Broadway Associates L.L.C. |
||||||||||||||||||||||||
Members |
$ | 136,432,404 | 3.4 | % | 13,643,240 | |||||||||||||||||||
1350 Broadway Associates L.L.C. |
||||||||||||||||||||||||
Peter L. Malkin50% Group |
$ | 58,061,442 | 1.5 | % | 5,806,144 | |||||||||||||||||||
Overrides(7) |
$ | 14,467,098 | 0.4 | % | 1,446,710 | |||||||||||||||||||
David M. Baldwin50% Group |
$ | 72,528,541 | 1.8 | % | 7,252,854 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Total |
$ | 145,057,081 | 3.7 | % | 14,505,708 | |||||||||||||||||||
Marlboro Building Associates L.L.C. |
||||||||||||||||||||||||
Members and participants |
$ | 128,942,169 | 3.2 | % | 12,894,217 | |||||||||||||||||||
Overrides(7) |
$ | 13,927,997 | 0.3 | % | 1,392,800 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||
Total |
$ | 142,870,166 | 3.5 | % | 14,287,017 |
48
Per $1,000 Original Investment (except as otherwise noted) | ||||||||||||||||||
Entity(1) |
Exchange Value(2)(3) |
Percentage of Total Exchange Value and Percentage of Total Shares of Common Stock Issued, on a Fully-Diluted Basis(4) |
Number of Shares of Common Stock, on a Fully-Diluted Basis(4)(5) |
Value of Shares of Common Stock or Operating Partnership Units(3)(6) |
GAAP Book Value (Deficit) as of September 30, 2011 |
Number of Shares of Common Stock, on a Fully-Diluted Basis(5) | ||||||||||||
Seventh & 37th Building Associates L.L.C. |
||||||||||||||||||
Participants |
$ | 50,816,765 | 1.3 | % | 5,081,676 | |||||||||||||
Overrides(7) |
$ | 5,246,307 | 0.1 | % | 524,631 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 56,063,072 | 1.4 | % | 5,606,307 | |||||||||||||
501 Seventh Avenue Associates L.L.C. |
||||||||||||||||||
Member |
$ | 47,362,949 | 1.2 | % | 4,736,295 | |||||||||||||
Overrides(7) |
$ | 5,262,550 | 0.1 | % | 526,255 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 52,625,499 | 1.2 | % | 5,262,550 | |||||||||||||
Soundview Plaza Associates II L.L.C.(13) |
||||||||||||||||||
Malkin Co-Investor Capital L.P.(General Partner)(14) |
$ | 81,335 | 0.0 | % | 8,134 | |||||||||||||
Malkin Co-Investor Capital L.P.(Class A LPs) |
$ | 8,052,199 | 0.2 | % | 805,220 | |||||||||||||
Malkin Co-Investor Capital L.P.(Class B LPs) |
$ | 0 | 0.0 | % | 0 | |||||||||||||
Peter L. Malkin |
$ | 3,713,727 | 0.1 | % | 371,373 | |||||||||||||
New Soundview Plaza Associates, Limited Partnership |
$ | 3,528,039 | 0.1 | % | 352,804 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 15,375,300 | 0.4 | % | 1,537,530 | |||||||||||||
East West Manhattan Retail Portfolio L.P. |
|
|||||||||||||||||
General Partner(14) |
$ | 265,826 | 0.0 | % | 26,583 | |||||||||||||
Class A LPs |
$ | 13,158,378 | 0.3 | % | 1,315,838 | |||||||||||||
Class B LP |
$ | 13,158,378 | 0.3 | % | 1,315,838 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 26,582,583 | 0.6 | % | 2,658,258 | |||||||||||||
One Station Place, Limited Partnership(13) |
||||||||||||||||||
General Partner(14) |
$ | 369,701 | 0.0 | % | 36,970 | |||||||||||||
Class A LP |
$ | 3,327,305 | 0.1 | % | 332,731 | |||||||||||||
Class B LPs |
$ | 33,273,054 | 0.8 | % | 3,327,305 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 36,970,060 | 0.9 | % | 3,697,006 | |||||||||||||
New York Union Square Retail L.P. |
||||||||||||||||||
General Partner(14) |
$ | 270,980 | 0.0 | % | 27,098 | |||||||||||||
Class A LPs |
$ | 13,413,525 | 0.3 | % | 1,341,353 | |||||||||||||
Class B LP |
$ | 13,413,525 | 0.3 | % | 1,341,353 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 27,098,031 | 0.6 | % | 2,709,803 | |||||||||||||
Westport Main Street Retail L.L.C.(13) |
||||||||||||||||||
Manager(15) |
$ | 49,255 | 0.0 | % | 4,926 | |||||||||||||
Class A Members |
$ | 4,876,286 | 0.1 | % | 487,629 | |||||||||||||
Class B Member |
$ | 0 | 0.0 | % | 0 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 4,925,541 | 0.1 | % | 492,554 | |||||||||||||
Fairfax Merrifield Associates L.L.C. |
||||||||||||||||||
Participants |
$ | 3,790,922 | 0.1 | % | 379,092 | |||||||||||||
Overrides(7) |
$ | 421,214 | 0.0 | % | 42,121 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 4,212,136 | 0.1 | % | 421,214 | |||||||||||||
Merrifield Apartments Company L.L.C. |
||||||||||||||||||
55% Members |
$ | 2,085,007 | 0.1 | % | 208,501 | |||||||||||||
45% Members |
$ | 852,957 | 0.0 | % | 85,296 | |||||||||||||
Overrides(7) |
$ | 1,274,171 | 0.0 | % | 127,417 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 4,212,136 | 0.0 | % | 421,214 | |||||||||||||
First Stamford Place L.L.C. |
||||||||||||||||||
Class A & A2 Members |
$ | 2,392,293 | 0.1 | % | 239,229 | |||||||||||||
Manager(15) |
$ | 48,329 | 0.0 | % | 4,833 | |||||||||||||
Class B Member |
$ | 2,392,293 | 0.1 | % | 239,229 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 4,832,916 | 0.2 | % | 483,292 |
49
Per $1,000 Original Investment (except as otherwise noted) | ||||||||||||||||||
Entity(1) |
Exchange Value(2)(3) |
Percentage of Total Exchange Value and Percentage of Total Shares of Common Stock Issued, on a Fully-Diluted Basis(4) |
Number of Shares of Common Stock, on a Fully-Diluted Basis(4)(5) |
Value of Shares of Common Stock or Operating Partnership Units(3)(6) |
GAAP Book Value (Deficit) as of September 30, 2011 |
Number of Shares of Common Stock, on a Fully-Diluted Basis(5) | ||||||||||||
1185 Swap Portfolio L.P.(13) |
||||||||||||||||||
1185 Bank L.L.C.(General Partner)(14) |
$ | 200,632 | 0.0 | % | 20,063 | |||||||||||||
1185 Gotham L.L.C.(General Partner)(13) |
$ | 238,302 | 0.0 | % | 23,830 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total (General Partner) |
$ | 438,935 | 0.0 | % | 43,893 | |||||||||||||
1185 Bank L.L.C.(Class 1 LP) |
$ | 9,863,030 | 0.2 | % | 986,303 | |||||||||||||
1185 Gotham L.L.C.(Class 1 LP) |
$ | 11,714,868 | 0.3 | % | 1,171,487 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total (Class 1 LP) |
$ | 21,577,899 | 0.5 | % | 2,157,790 | |||||||||||||
1185 Bank L.L.C.(Class 2 LP) |
$ | 0 | 0.0 | % | 0 | |||||||||||||
1185 Gotham L.L.C.(Class 2 LP) |
$ | 0 | 0.0 | % | 0 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total (Class 2 LP) |
$ | 0 | 0.0 | % | 0 | |||||||||||||
Total (1185 Swap Portfolio L.P.) |
$ | 22,016,834 | 0.5 | % | 2,201,683 | |||||||||||||
Fairfield Merrittview Limited Partnership(13) |
||||||||||||||||||
General Partner(14) |
$ | 74,094 | 0.0 | % | 7,409 | |||||||||||||
Class A LP |
$ | 4,042,233 | 0.1 | % | 404,223 | |||||||||||||
Class B LP |
$ | 3,293,056 | 0.1 | % | 329,306 | |||||||||||||
Overrides(7) |
$ | 823,265 | 0.0 | % | 82,326 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 8,232,647 | 0.2 | % | 823,265 | |||||||||||||
500 Mamaroneck Avenue L.P. |
||||||||||||||||||
Class A LPs |
$ | 4,444,709 | 0.1 | % | 444,471 | |||||||||||||
Class B LPs |
$ | 0 | 0.0 | % | 0 | |||||||||||||
General Partner(14) |
$ | 44,896 | 0.0 | % | 4,490 | |||||||||||||
Co-Tenant |
$ | 1,496,535 | 0.0 | % | 149,654 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 5,986,141 | 0.1 | % | 598,614 | |||||||||||||
BBSF LLC |
$ | 14,600,000 | 0.4 | % | 1,460,000 | |||||||||||||
Supervisor and Management Companies |
||||||||||||||||||
Malkin Holdings, LLC(16) |
$ | 5,896,278 | 0.1 | % | 589,628 | |||||||||||||
Malkin Properties(17) |
$ | 4,250,000 | 0.1 | % | 425,000 | |||||||||||||
Malkin Construction Corp. |
$ | 5,775,000 | 0.1 | % | 577,500 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 15,921,278 | 0.4 | % | 1,592,128 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Total |
$ | 3,986,533,923 | 100.0 | % | 398,653,392 | |||||||||||||
|
|
|
|
|
|
|||||||||||||
Overrides (including Class B interests) held by the Supervisor and the Malkin Holdings group |
$ | 328,548,448 | 8.2 | % | 32,854,845 | |||||||||||||
Overrides (including Class B interests) of other Persons |
$ | 68,598,053 | 1.7 | % | 6,859,805 |
(1) | Excludes three private entities which are the ground lessees and an operating lessee of two properties that are supervised by the supervisor, having an aggregate exchange value of $551,686,612, determined on a basis consistent with the exchange values of the subject LLCs and the private entities that are supervised by the supervisor. The operating partnership has entered into option agreements pursuant to which it has the option to acquire their property interests upon the final resolution of certain ongoing litigation with respect to their properties. |
(2) | The exchange value is determined as described in Exchange Value and Allocation of Common StockDerivation of Exchange Value. |
(3) | The exchange value of each subject LLC, each private entity and the management companies is based on each subject LLCs, each private entitys and each management companys assets and liabilities included in the quarterly balance sheets of the subject LLC, private entity or the management companies, as of June 30, 2011. The exchange value will be revised to reflect changes in the balance sheet items included in the calculation of the exchange value in subsequent quarterly balance sheets but will not be revised based on changes in the balance sheets or other events after the final quarterly balance sheet date prior to the closing of the consolidation. |
(4) | The number of shares of common stock issued, on a fully-diluted basis, equals the number of shares of Class A common stock outstanding plus shares of Class A common stock issuable upon the redemption of operating partnership units or upon conversion of Class B common stock for shares of Class A common stock on a one-for-one basis. If participants elect the cash option, the Class A |
50
common stock, which would have been issued to them, will not be issued. As a result, the number of outstanding shares of Class A common stock will be reduced and the percentage of the Class A common stock each participant owns will increase. |
(5) | The number of shares of common stock, on a fully-diluted basis, assumes that none of participants in the subject LLC has elected the cash option. The number of shares of common stock, on a fully-diluted basis, issuable to each subject LLC, as set forth in the table, was determined by dividing the exchange value for the subject LLC by $10, which is the hypothetical value that the supervisor arbitrarily assigned for illustrative purposes. The actual number of common stock, on a fully-diluted basis, and the value allocated to each participant in the subject LLCs and the private entities will be based on the enterprise value in connection with the IPO and the IPO price. The enterprise value will be determined by the market conditions and the performance of the portfolio at the time of the IPO. The enterprise value may be higher or lower than the aggregate exchange value. The exchange value used herein is based on the appraisal prepared by the independent valuer. Historically, in a typical initial public offering of a REIT, the enterprise value and initial public offering price are at a discount to the net asset value of the REITs portfolio of properties, which in turn may be above or below the aggregate exchange value. |
(6) | The amount shown in the table has been calculated as if all participants in each subject LLC and each private entity that have been solicited with respect to the voluntary capital transaction override program have consented. The voluntary capital transaction override will be deducted only from the distributions allocable to those participants that consented. The distributions allocable to participants that did not consent to the voluntary capital transaction override program and/or the voluntary pro rata reimbursement program will be determined without any deduction for such payments. The actual overrides to the supervisor, based on the actual consents to the voluntary capital override transaction, are $111.19 million and $10.56 million, respectively, less than that shown in the table for Empire State Building Associates L.L.C. and 250 West 57th St. Associates L.L.C. and $136.10 million in the aggregate less than that shown in the table for all of the private entities and the subject LLCs. |
(7) | Includes override interests in the subject LLCs and the private entities (i) held by the supervisor and the Malkin Holdings group and (ii) certain other persons, including other members of the Wien group. |
(8) | Operating lessee of Empire State Building Associates L.L.C. |
(9) | Information is provided per 1% interest instead of per $1,000 original investment. |
(10) | Does not include $10,611,894 of additional overrides payable by individual investors to unaffiliated third parties with respect to their interests in an investment entity that owns a membership interest in Empire State Building Company L.L.C. |
(11) | Operating lessee of 60 East 42nd St. Associates L.L.C. |
(12) | Operating lessee of 250 West 57th St. Associates L.L.C. |
(13) | Based on financial statements prepared on a tax basis and not in accordance with GAAP. |
(14) | The general partner is an affiliate of the supervisor. |
(15) | The manager is an affiliate of the supervisor. |
(16) | Total exchange value of the supervisor excludes the value attributable to the supervisors overrides, which are included in the value of the overrides that the Malkin Holdings group holds in the subject LLCs and the private entities. |
(17) | Refers collectively to Malkin Properties, L.L.C. Malkin Properties of New York, L.L.C. and Malkin Properties of Connecticut, L.L.C. (collectively Malkin Properties). |
How the exchange value per $1,000 original investment was calculated. Exchange value per participants average $1,000 original investment was calculated as follows. The supervisor started with the exchange value for each subject LLC, as computed by the independent valuer and approved by the supervisor. The supervisor divided the exchange value by the aggregate original investment in each subject LLC multiplied by 1,000 to determine the exchange value per $1,000 investment. The voluntary capital transaction override was then deducted only from the distributions allocable to those participants that consented. The distributions allocable to participants that did not consent to the voluntary capital transaction override program and/or the voluntary pro rata reimbursement program will be determined without any deduction for such payments. The amount of voluntary capital transaction override in the tables is presented as if each participant in each subject LLC and each private entity that has a voluntary capital transaction override program has consented to the program. To determine the approximate value of the Class A common stock you will receive if your subject LLC is acquired in the consolidation, you would multiply the figure in the fourth column (titled Value of Shares of Common Stock or Operating Partnership Units per Participants $1,000 Original Investment) by the amount of your original investment divided by $1,000. This calculation assumes that all payments under the voluntary pro rata reimbursement program will be made out of consenting participants share of excess cash of the subject LLCs and the private entities and not deducted from consideration at closing of the consolidation.
For a detailed explanation of the manner in which the allocations are made, see Background of and Reasons for the ConsolidationAllocation of Common Stock and Operating Partnership Units among the Subject LLCs, the Private Entities and the Management Companies.
51
Voting Procedures for the Consolidation Proposal and the Third-Party Portfolio Proposal
The company is asking you to vote FOR both the consolidation and the third-party portfolio proposal. If you own participation interests in more than one subject LLC, for each subject LLC in which you own a participation interest you will receive a transmittal letter, supplement and consent form. Regardless of how many subject LLCs in which you own a participation interest, you will receive a single copy of the prospectus/consent solicitation. Participants in each subject LLC will vote separately on whether or not to approve the consolidation and the third-party portfolio proposal. Accordingly, if you hold interests in more than one subject LLC, you must complete one consent form for each subject LLC in which you are a participant.
If you vote FOR the consolidation and your subject LLC participates in the consolidation, you effectively will be voting against the alternatives to the consolidation, other than a third-party portfolio transaction, unless you vote AGAINST the third-party portfolio proposal. These alternatives include continuation of your subject LLC and a sale of your subject LLCs interest in the property and distribution of the net proceeds to participants.
If the consolidation is approved by the participants in your subject LLC and is consummated, you will receive Class A common stock as consideration for your participation interest. You also will have the option to elect to exercise the cash option.
If the consolidation is not approved by your subject LLC and a third-party portfolio transaction is not consummated, the supervisor plans for the time being to continue to operate the subject LLC as currently operated and, if the consolidation is consummated with respect to the other subject LLCs, your interest in the property would be supervised by a subsidiary of the operating partnership as successor to the supervisor. Each of these proposals is subject to a separate consent and approval of each proposal is not dependent on approval of any other proposal.
If you vote AGAINST the consolidation, you do not return your consent form or you ABSTAIN, and your subject LLC approves the consolidation and consolidates with the company, you still will receive shares of Class A common stock, except as set forth below for participants in Empire State Building Associates L.L.C. and 60 East 42nd St. Associates L.L.C.
If you vote AGAINST the third-party portfolio proposal, you do not return your consent form or you ABSTAIN, and your subject LLC approves the third-party portfolio proposal and such a transaction is consummated, you still will receive the consideration to be paid in a third-party portfolio transaction, except as set forth below for participants in Empire State Building Associates L.L.C. and 60 East 42nd St. Associates L.L.C.
If you do not submit a consent form, you will be counted as having voted AGAINST both the consolidation and the third-party portfolio proposal. If you submit a properly signed consent form but do not indicate how you wish to vote on the consolidation, the third-party portfolio proposal, or both, you will be counted as having voted FOR such proposal(s).
Your consent form must be received by MacKenzie Partners, Inc. by 5:00 p.m. Eastern time on , 2012 unless the supervisor extends the solicitation period for one or more proposals. You can change your vote at any time before the later of the date that consents from participants holding the required percentage interest are received by your subject LLC and the 60th day after the date of this prospectus/consent solicitation.
The supervisor may extend on one or more occasions the solicitation period for one or more proposals for one or more subject LLCs without extending for other proposals or subject LLCs whether or not it has received approval for the consolidation proposal or the third-party portfolio proposal on expiration of the consent solicitation period.
52
The participation interests in each subject LLC are divided into separate participating groups. Participants are being asked to vote on both the proposed consolidation and the third-party portfolio proposal. For each of these proposals to be approved, participants holding 100% of the outstanding participation interests in Empire State Building Associates L.L.C. and 60 East 42nd St. Associates L.L.C. must approve that proposal, and participants holding greater than 75% of the outstanding participation interests in eight out of the ten participating groups of 250 West 57th St. Associates L.L.C. must approve that proposal. Approval by the required vote of the participants in 250 West 57th St. Associates L.L.C. in favor of a proposal will be binding on you if you are a participant in 250 West 57th St. Associates L.L.C. even if you vote AGAINST such proposal.
If holders of 80% of the participation interests in any of the three participating groups in Empire State Building Associates L.L.C. or holders of 90% of the participation interests in any of the seven participating groups in 60 East 42nd St. Associates L.L.C. approve the consolidation, the agent of any such participating group will purchase on behalf of the subject LLC the participation interest of any participant in such participating group that voted AGAINST the consolidation or that did not submit a consent form, at a price that would be substantially lower than the exchange value.
If holders of 80% of the participation interests in any of the three participating groups in Empire State Building Associates L.L.C. or holders of 90% of the participation interests in any of the seven participating groups in 60 East 42nd St. Associates L.L.C. approve the third-party portfolio proposal, the agent of any such participating group will purchase on behalf of the subject LLC the participation interest of any participant in such participating group that voted AGAINST the third-party portfolio proposal or that did not submit a consent form, at a price that would be substantially lower than the exchange value regardless of whether there is a third-party portfolio offer, and even if the consolidation is consummated and the participant voted in favor of the consolidation.
Prior to an agent purchasing the participation interests of non-consenting participants, an agent will give such participants not less than ten days notice after the required consent is received by a subject LLC to permit them to consent to the consolidation or the third-party portfolio proposal, as applicable, in which case their participation interests will not be purchased. The agents will purchase the participation interests for the benefit of the subject LLC and not for their own account and will be reimbursed by the subject LLC for the cost of such buyout. If the agent purchases these participation interests, the requirement for consent of participants holding 100% of the participation interests of that participating group will be satisfied.
The agents, who are the members of your subject LLCs, recently created a new class of membership interests, which were divided into series. A separate series was deemed to be distributed to holders of each participating group in your subject LLC. Each new series provides protections similar to those under a shareholder rights plan for a corporation. Each new series corresponds to a participating group for which a member acts as agent. The new series will not affect voting rights, except with respect to any person or group that acquires 6%, 3%, or 7.5% or more, respectively, of the outstanding participation interests in the applicable participating group (an acquiring person) for each of Empire State Building Associates L.L.C., 60 East 42nd St. Associates L.L.C. and 250 West 57th St. Associates L.L.C. If there is an acquiring person, the effect of the new series is that approval of the consolidation proposal and the third-party portfolio proposal by a participating group will require approval by the requisite consent of the participants in the participating group, as holders of the new series of membership interests, excluding the acquiring person.
The Wien group collectively owns participation interests in the subject LLCs and has advised that it will vote in favor of the consolidation and the third-party portfolio proposal. These participation interests represent the following percentage ownership for each subject LLC: 8.5921% for Empire State Building Associates L.L.C., 8.7684% for 60 East 42nd St. Associates L.L.C. and 7.3148% for 250 West 57th St. Associates L.L.C.
53
No Right to Independent Appraisal
If your subject LLC approves the consolidation or the third-party portfolio proposal and your subject LLC participates in the consolidation or a third-party portfolio transaction, as applicable, participants who vote AGAINST or ABSTAIN with respect to such proposal or do not submit a consent form will not have appraisal rights for their participation interests or a right to receive cash based upon an appraisal.
If your subject LLC approves the consolidation and your subject LLC is consolidated with the company, the company will bear all consolidation expenses. The company will also bear all of the consolidation expenses of other subject LLCs and private entities that are consolidated with the company. Additionally, the entities owning the option properties have borne a portion of the consolidation expenses and if the option is approved by the participants in such entities, the company will bear all of the consolidation expenses of such entities.
If the consolidation does not close, each subject LLC and private entity will bear its proportionate share of the consolidation expenses based on the exchange value of each subject LLC and private entity. If the consolidation closes, but the subject LLC does not participate in the consolidation, the subject LLC will bear its proportionate share of all consolidation expenses incurred through the date of termination of the contribution agreement. The supervisor does not know whether the acquiror in a third-party portfolio transaction will agree to pay any of the consolidation expenses.
Conditions to the Consolidation
The following conditions must be satisfied to consummate the consolidation of each of the subject LLCs:
| Requisite consent of the participants in the subject LLC must have been received; |
| The IPO must close; |
| The Class A common stock must be approved for listing on the NYSE or another national securities exchange prior to or concurrently with the consummation of the consolidation and the closing of the IPO; |
| The participation in the consolidation of Empire State Building Associates L.L.C. and the private entity that owns an interest in the Empire State Building; |
| The consolidation must have been completed by December 31, 2014 and |
| The consolidation will be subject to other customary conditions. |
Your Right to Investor Lists and to Communicate with Other Participants
Under federal securities laws, upon written request from you, the supervisor will deliver the following information to you:
| A statement of the approximate number of participants in your subject LLC and |
| The estimated cost of mailing a proxy statement, form of proxy or other similar communication to your subject LLCs participants. |
In addition, you have the right, at your option, either:
| To have your subject LLC mail (at your expense) copies of any consent statement, consent form or other soliciting materials to be furnished by you to the other participants in your subject LLC or |
54
| To have your subject LLC deliver to you, within five business days of the receipt of the request, a reasonably current list of the names, addresses and participation interests held by the participants in your subject LLC. |
The right to receive the list of participants is subject to your payment of the cost of mailing and duplication at a rate of $0.20 per page.
U.S. Federal Income Tax Considerations of the Consolidation Proposal
The Consolidation will Result in the Recognition by Participants in the Subject LLCs of Gain or Loss for U.S. Federal Income Tax Purposes
Generally, under applicable U.S. federal income tax laws and regulations, you will recognize gain or loss for U.S. federal income tax purposes with respect to your participation interest in a subject LLC that is exchanged for Class A common stock and/or cash equal to the difference between the amount realized by you (i.e., the fair market value of the Class A common stock and/or cash received by you and your share of the applicable LLCs liabilities that you are deemed to be relieved of under U.S. federal income tax law) and your adjusted tax basis in your participation interest. You will realize phantom income if you have a negative capital account with respect to your participation interest. In each of 250 West 57th St. Associates L.L.C. and 60 East 42nd St. Associates L.L.C., original participants have a negative capital account. As a result of the cap on the cash option, you may not be able to receive sufficient cash, even if you make the cash election, to pay taxes on the gain. In addition, due to the lock-up on your shares of Class A common stock, you may not be able to sell your shares of Class A common stock to realize cash at the time such sale may be required to meet any tax or estimated tax obligation. Each participant, upon receipt of Class A common stock and/or cash in exchange for such participants participation interest, will be deemed to have consented to treat the consolidation as a sale of the participants participation interest in exchange for such Class A common stock and/or cash for U.S. federal income tax purposes. As all of your participation interest will be exchanged for Class A common stock or cash pursuant to the consolidation, suspended passive activity losses associated with your participation interest, if any, may be eligible for treatment as losses that are not from a passive activity to the extent that they exceed income and gains from passive activities for your taxable year that includes the consolidation. You are urged to consult your tax advisor with regard to the potential passive activity losses associated with your participation interest and the impact of recognizing such losses in connection with your exchange of your participation interest for Class A common stock and/or cash. For a more complete description of the expected U.S. federal income tax consequences of the consolidation, see U.S. Federal Income Tax ConsiderationsTax Consequences of the Consolidation.
Taxable gain and loss estimates per participants $1,000 original investment
Estimated Gain/(Loss) per Participants $1,000 Original Investment(1)(2) |
||||
SUBJECT LLC |
Participant Receives Class A Common Stock or Cash |
|||
Empire State Building Associates L.L.C. |
||||
Participants (without voluntary overrides) |
$ | 36,546 | ||
Participants (with voluntary overrides) |
$ | 32,982 | ||
250 West 57th St. Associates L.L.C. |
||||
Participants (without voluntary overrides) |
$ | 40,926 | ||
Participants (with voluntary overrides) |
$ | 37,180 | ||
60 East 42nd St. Associates L.L.C. |
||||
Participants |
$ | 41,369 |
55
(1) | Values are based on the hypothetical $10 per share exchange value that the supervisor arbitrarily assigned for illustrative purposes. Upon listing the Class A common stock on the NYSE, the price at which the Class A common stock will trade may be above or below the hypothetical $10 per share. |
(2) | The estimated gain/(loss) is calculated based upon presumed tax treatment of the subject LLCs as a result of the proposed consolidation. |
Qualification of the Company as a REIT
The company has been organized and intends to operate in a manner that will enable it to qualify as a REIT for U.S. federal income tax purposes commencing with its taxable year ending December 31, 2012. The company has not requested and does not intend to request a ruling from the Internal Revenue Service, or the IRS, that it qualifies as a REIT. Qualification as a REIT involves the application of highly technical and complex Code provisions and Treasury Regulations promulgated thereunder for which there are limited judicial and administrative interpretations. The complexity of these provisions and of applicable Treasury Regulations is greater in the case of a REIT that, like the company, holds its assets through partnerships. To qualify as a REIT, the company must meet, on an ongoing basis, various tests regarding the nature and diversification of the companys assets and income, the ownership of the companys outstanding shares, and the amount of the companys distributions. The companys ability to satisfy these asset tests depends upon the companys analysis of the characterization and fair market values of its assets, some of which are not susceptible to a precise determination, and for which the company will not obtain independent appraisals. The companys compliance with the REIT income and quarterly asset requirements also depends upon the companys ability to manage successfully the composition of its income and assets on an ongoing basis. Moreover, new legislation, court decisions or administrative guidance, in each case possibly with retroactive effect, may make it more difficult or impossible for the company to qualify as a REIT. Thus, while the company intends to operate so that it will qualify as a REIT, given the highly complex nature of the rules governing REITs, the ongoing importance of factual determinations, and the possibility of future changes in the companys circumstances, no assurance can be given that the company will so qualify for any particular year. These considerations also might restrict the types of assets that the company can acquire in the future. If the company fails to qualify as a REIT in any taxable year and does not qualify for certain statutory relief provisions, the company will be subject to U.S. federal income tax at regular corporate rates and may be precluded from qualifying as a REIT for the subsequent four taxable years following the year during which it lost its REIT qualification. Even if the company qualifies for taxation as a REIT, it may be subject to certain U.S. federal, state and local taxes on its income or property. See U.S. Federal Income Tax Considerations.
Selected Financial and Other Data
The following table sets forth selected financial and other data on (i) a combined historical basis for the predecessor beginning on page F-30 and (ii) a pro forma basis for the company giving effect to the consolidation and the IPO, the related use of proceeds thereof and the other adjustments described in the unaudited pro forma financial information beginning on page F-5. The company has not presented historical information for Empire State Realty Trust, Inc. because the company has not had any corporate activity since its formation other than the issuance of shares of common stock in connection with the initial capitalization of the company and because the company believes a discussion of the results of the company would not be meaningful.
The companys predecessors combined historical financial information includes:
| The management companies, including their asset management, leasing, administrative, construction and development operations; and |
| the real estate operations for the subject LLCs and private entities excluding the four office properties for which the supervisor acts as the supervisor but that are not consolidated into the companys predecessor for accounting purposes except for the companys predecessors non-controlling interests in such properties. |
56
You should read the following selected financial data in conjunction with the companys combined historical and unaudited pro forma condensed consolidated financial statements and the related notes and with Managements Discussion and Analysis of Financial Condition and Results of Operations of Empire State Realty Trust.
The selected historical combined balance sheet information as of December 31, 2010 and 2009 of the companys predecessor and selected combined statements of operations information for the years ended December 31, 2010, 2009 and 2008 of the companys predecessor have been derived from the audited historical combined financial statements of the companys predecessor. The historical combined balance sheet information as of September 30, 2011 and combined statements of operations for the nine months ended September 30, 2011 and 2010 have been derived from the unaudited combined financial statements of the companys predecessor. The selected historical combined balance sheet information as of December 31, 2008, 2007 and 2006 and selected combined statements of operations information for the years ended December 31, 2007 and December 31, 2006 have been derived from the unaudited combined financial statements of the companys predecessor. The companys results of operations for the interim period ended September 30, 2011 are not necessarily indicative of the results that will be obtained for the full fiscal year.
The companys unaudited selected pro forma condensed consolidated financial statements and operating information as of and for the nine months ended September 30, 2011 and for the year ended December 31, 2010 assumes completion of the consolidation and the IPO and the other adjustments described in the unaudited pro forma financial information beginning on page F-5 as of January 1, 2010 for the operating data and as of the stated date for the balance sheet data.
The companys unaudited pro forma financial information is not necessarily indicative of what the companys actual financial position and results of operations would have been as of the date and for the periods indicated, nor does it purport to represent the companys future financial position or results of operations.
57
Empire State Realty Trust, Inc.
Selected Financial and Other Data
(amounts in thousands except for shares and per share data)
Nine Months Ended September 30, | Year Ended December 31, | |||||||||||||||||||||||||||||||||||
Pro Forma Consolidated |
Historical Combined | Pro Forma Consolidated |
Historical Combined | |||||||||||||||||||||||||||||||||
2011 | 2011 | 2010 | 2010 | 2010 | 2009 | 2008 | 2007 | 2006 | ||||||||||||||||||||||||||||
(Unaudited) | (Unaudited) | (Unaudited) | (Unaudited) | (Unaudited) | (Unaudited) | |||||||||||||||||||||||||||||||
Statement of Operations Data: |
||||||||||||||||||||||||||||||||||||
Revenue: |
||||||||||||||||||||||||||||||||||||
Rental revenue |
$ | 220,819 | $ | 126,768 | $ | 122,632 | $ | 273,357 | $ | 166,159 | $ | 167,556 | $ | 162,194 | $ | 166,524 | $ | 161,976 | ||||||||||||||||||
Tenant expense reimbursement |
47,027 | 22,869 | 24,549 | 70,064 | 32,721 | 36,309 | 35,684 | 35,789 | 30,307 | |||||||||||||||||||||||||||
Third-party management and other fees |
4,671 | 4,671 | 2,829 | 3,750 | 3,750 | 4,296 | 5,916 | 4,220 | 3,959 | |||||||||||||||||||||||||||
Construction revenue |
35,323 | 35,323 | 23,713 | 27,139 | 27,139 | 15,997 | 56,561 | 42,373 | 33,901 | |||||||||||||||||||||||||||
Observatory income(2) |
62,943 | (1) | | | 78,880 | (1) | | | | | | |||||||||||||||||||||||||
Other income and fees |
11,420 | 9,909 | 13,026 | 21,403 | 16,776 | 8,157 | 8,442 | 13,601 | 9,143 | |||||||||||||||||||||||||||
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Total Revenues |
382,203 |