All Bets Are Off for Empire State Realty Trust

NEW YORK ( TheStreet) -- Over a month ago I announced to The Street that Empire State Realty Trust investors would soon commence voting on an IPO aimed to provide liquidity for the new REIT anchored also by the iconic 82 year-old office tower.

Now with less than two weeks away from a deadline (March 26th), voters will decide whether the famous office tower will be part of a new REIT bearing its name.

However, based upon a filing on Friday (by Malkin Holdings, LLC) the controlling interest appears to be closer to reality. As Tom Yeatts with SNL Financial explains:

" Vote tallies reported in a March 15 filing by Malkin Holdings LLC, the controlling interest that has led the IPO charge against a tightly run and determined opposition, suggest that the Empire State Realty Trust Inc. IPO could very well be realized. But the opposition group's de facto leader thinks the Malkins are still a long way off from obtaining the necessary number of 'yes' votes."

At one time sides appeared to be split as the 2,800 shareholders weighed-in on the potential risks and rewards. Many current investors had no interest in aligning with the Malkin group who intend to provide a more diverse and liquid structure (hence the reason for forming a REIT).

In a March 14 letter (attached to the Friday filing), Malkin Holdings said 90% of the investors who have already voted -- about two-thirds of the more than 2,800 total -- have approved the REIT plan, which would consolidate the Empire State Building into a publicly traded entity that would include a portfolio that consists of 12 total office properties encompassing around 7.7 million square feet of space, mostly located in the Manhattan area.

Now with just two weeks left the gloves are off and both fighters are swinging hard. The Malkins believe they are all but victorious as their deep-seeded experience has been the primary force behind the "pro REIT" movement. They called the level of support seen so far from Empire State Building Associates LLC, the owner of the Empire State Building, "very strong." As they explained:

"We thank all those who have voted to date in favor of the transaction for their support and those whose votes are in the mail or who are planning to vote this weekend. This remarkable level of participation in such a short period has exceeded our hopes and reflects to us a tremendous enthusiasm for the proposed transaction among many participants."

Meanwhile the opposition group continues to trade jabs. One of the principal leaders, Richard Edelman, has been instrumental in the debate and he has spent countless hours hoping to find support for the legacy structure. His group has continuously sponsored bi-weekly conference calls attempting to build support against the Malkin group.

Members of Empire State Building Associates have until March 25 to vote. But whatever the tally by that date -- the Malkins need 80% of the total to approve the deal -- the Malkins implied that they would continue their campaign, noting that they are permitted to keep the solicitation open beyond the March 25 deadline and "will do so as needed."

"The sooner the proposed transaction is approved, the sooner the expenses and disruption to all participants may be brought to an end, and the participants can receive reimbursement for the costs of the transaction, cash reserves and the class action settlement proceeds," they said.

According to SNL Financial (in March 15), Edelman pointed to the underlying numbers, which suggest that Malkin Holdings is still a ways away from the necessary approval.

"If you average their numbers, 89-92% voting to date and 62-66% forms received you get only a 58% approval," he said. "That's a long way from 80% with only about a week left to mail ballots that have to be in MacKenzie's office by 3/25."

Edelman said the figures in the filing were in line with the opposition group's own findings. "This is right on the money with our consistent results polling ESBA participants that shows a final tally of between 30-40% No Vote."

It's ironic that King Kong fought for the same namesake building some 82 years ago. Standing atop the 102nd floor tower, Kong fought tirelessly for the one thing he loved the most.

With bullets being fired from all directions, Kong was not able to hang onto the one thing he loved but in retrospect, he went down fighting.

In a similar light, there will be a winner and a loser but we know one thing is true - the Empire State Building is an extraordinary property and a winner will soon be "crowned" as the King of the Jungle. The clocks ticking....

Source: Tom Yeatts with SNL Financial contributed to this story.

At the time of publication the author had no position in any of the stocks mentioned. This article is commentary by an independent contributor, separate from TheStreet's regular news coverage.

This article is commentary by an independent contributor, separate from TheStreet's regular news coverage.

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