Empire State Realty OP, L.P S-3ASR, filed Jul 31, 2023

Empire State Realty OP, L.P. (ESBA)

S-3ASR 2023-07-31

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Large accelerated filer	☒	Accelerated filer	☐
Non-accelerated filer	☐	Smaller reporting company	☐
		Emerging growth company	☐

	Large accelerated filer			☒			Accelerated filer			☐
	Non-accelerated filer			☐			Smaller reporting company			☐

	PROSPECTUS SUMMARY					1
	RISK FACTORS					3
	CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS					4
	WHERE YOU CAN FIND MORE INFORMATION					6
	INFORMATION INCORPORATED BY REFERENCE					7
	USE OF PROCEEDS					8
	DESCRIPTION OF COMMON STOCK OF EMPIRE STATE REALTY TRUST, INC.					9
	DESCRIPTION OF PREFERRED STOCK OF EMPIRE STATE REALTY TRUST, INC.					15
	DESCRIPTION OF DEPOSITARY SHARES OF EMPIRE STATE REALTY TRUST, INC.					21
	DESCRIPTION OF WARRANTS OF EMPIRE STATE REALTY TRUST, INC.					23
	DESCRIPTION OF GUARANTEES					24
	CERTAIN PROVISIONS OF MARYLAND LAW AND OUR CHARTER AND BYLAWS					25
	DESCRIPTION OF DEBT SECURITIES OF EMPIRE STATE REALTY OP, L.P.					32
	DESCRIPTION OF THE PARTNERSHIP AGREEMENT OF EMPIRE STATE REALTY OP, L.P.					47
	U.S. FEDERAL INCOME TAX CONSIDERATIONS					55
	SELLING SECURITY HOLDERS					77
	PLAN OF DISTRIBUTION					78
	LEGAL MATTERS					83
	EXPERTS					83

SEC registration fee	$	*
Legal fees and expenses	$	**
Blue Sky expenses	$	**
Accounting fees and expenses	$	**
Printing fees and expenses	$	**
Transfer Agent’s and Trustee’s fees and expenses	$	**
Rating Agency Fees	$	**
Stock Exchange Listing Fees	$	**
Miscellaneous expenses	$	**
Total	$	**

	Exhibit			Description
	1.1*			Form of Underwriting Agreement
	4.1			Articles of Amendment and Restatement of Empire State Realty Trust, Inc. (incorporated by reference to Exhibit 3.1 to Amendment No. 8 to the Registration Statement on Form S-11 of Empire State Realty Trust, Inc. (Registration No. 333-179485) filed with the SEC on September 27, 2013)
	4.2			Third Amended and Restated Bylaws of Empire State Realty Trust, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K of Empire State Realty Trust, Inc. filed with the SEC on March 7, 2019)
	4.3			Specimen Class A Common Stock Certificate of Empire State Realty Trust, Inc. (incorporated by reference to Exhibit 4.1 to Amendment No. 3 to the Registration Statement on Form S-11 of Empire State Realty Trust, Inc. (Registration No. 333-179485) filed with the SEC on November 2, 2012)
	4.4			Specimen Class B Common Stock Certificate of Empire State Realty Trust, Inc. (incorporated by reference to Exhibit 4.2 to Amendment No. 3 to the Registration Statement on Form S-11 of Empire State Realty Trust, Inc. (Registration No. 333-179485) filed with the SEC on November 2, 2012)
	4.5			Certificate of Limited Partnership of Empire State Realty OP, L.P. (incorporated by reference to Exhibit 3.1 to the Annual Report on Form 10-K for the year ended December 31, 2019 of Empire State Realty OP, L.P. filed with the SEC on February 28, 2020)
	4.6			Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated October 1, 2013 (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q for the quarter ended September 30, 2013 of Empire State Realty, Inc. filed with the SEC on November 12, 2013)
	4.7			Amendment No. 1 to the Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated August 26, 2014 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of Empire State Realty OP, L.P. filed with the SEC on August 26, 2014)
	4.8			Amendment No. 2 to the Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated December 6, 2019 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of Empire State Realty OP, L.P. filed with the SEC on December 12, 2019)
	4.9**			Form of Indenture for Senior Debt Securities of Empire State Realty OP, L.P.
	4.10**			Form of Senior Debt Security of Empire State Realty OP, L.P. (included in Exhibit 4.9 as filed)
	4.11**			Form of Indenture for Subordinated Debt Securities of Empire State Realty OP, L.P.
	4.12**			Form of Subordinated Debt Security of Empire State Realty OP, L.P. (included in Exhibit 4.11 as filed)
	4.13*			Form of Depositary Agreement (including form of Depositary Receipt)
	5.1**			Opinion of Venable LLP regarding the legality of the shares of capital stock being registered and certain other legal matters relating to Maryland law
	5.2**			Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of certain securities being registered
	8.1**			Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to certain tax matters

	Exhibit			Description
	23.1**			Consent of Ernst & Young LLP
	23.2**			Consent of Venable LLP (included in Exhibit 5.1 hereto)
	23.3**			Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibits 5.2 and 8.1 hereto)
	24.1**			Powers of Attorney (included in Part II of Registration Statement as filed)
	25.1*			Statement of Eligibility of Senior Trustee on Form T-1 for Empire State Realty OP, L.P.
	25.2*			Statement of Eligibility of Subordinated Trustee on Form T-1 for Empire State Realty OP, L.P.
	107**			Calculation of Filing Fee Tables

Signature	Title	Date
/s/ Anthony E. Malkin Anthony E. Malkin	Chairman of the Board of Directors, President and Chief Executive Officer (Principal Executive Officer)	July 31, 2023
/s/ Christina Chiu Christina Chiu	Chief Operating Officer & Chief Financial Officer (Principal Financial Officer)	July 31, 2023
/s/ Stephen Horn Stephen Horn	Senior Vice President, Chief Accounting Officer (Principal Accounting Officer)	July 31, 2023
/s/ Thomas J. DeRosa Thomas J. DeRosa	Director	July 31, 2023
/s/ Steven J. Gilbert Steven J. Gilbert	Director	July 31, 2023
/s/ S. Michael Giliberto S. Michael Giliberto	Director	July 31, 2023
/s/ Patricia S. Han Patricia S. Han	Director	July 31, 2023
/s/ Grant H. Hill Grant H. Hill	Director	July 31, 2023
/s/ R. Paige Hood R. Paige Hood	Director	July 31, 2023
/s/ James D. Robinson IV James D. Robinson IV	Director	July 31, 2023
/s/ Christina Van Tassell Christina Van Tassell	Director	July 31, 2023
/s/ Hannah Yang Hannah Yang	Director	July 31, 2023

	Page

RECITALS OF THE COMPANY	1

ARTICLE One

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.01. Definitions	1
Section 1.02. Compliance Certificates and Opinions	10
Section 1.03. Form of Documents Delivered to Trustee	11
Section 1.04. Acts of Holders	11
Section 1.05. Notices, etc., to Trustee and Company	12
Section 1.06. Notice to Holders: Waiver	13
Section 1.07. Counterparts; Effect of Headings and Table of Contents	13
Section 1.08. Successors and Assigns	13
Section 1.09. Severability Clause	14
Section 1.10. Benefits of Indenture	14
Section 1.11. Governing Law; Waiver of Trial by Jury	14
Section 1.12. Non-Business Day	14
Section 1.13. Limited Liability; Immunity of Partners, Stockholders, Directors, Officers and Agents of the Company and Parent	15
Section 1.14. Conflict with Trust Indenture Act	15
Section 1.15. Electronic Signatures	15

ARTICLE Two

SECURITIES FORMS

Section 2.01. Forms of Securities	16
Section 2.02. Form of Trustee’s Certificate of Authentication	16
Section 2.03. Securities Issuable in Global Form	16

ARTICLE Three

THE SECURITIES

Section 3.01. Amount Unlimited; Issuable in Series	18
Section 3.02. Denominations	21
Section 3.03. Execution, Authentication, Delivery and Dating	21
Section 3.04. Temporary Securities	23
Section 3.05. Registration, Registration of Transfer and Exchange	25
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities	27
Section 3.07. Payment of Interest; Interest Rights Preserved	28
Section 3.08. Persons Deemed Owners	30
Section 3.09. Cancellation	30
Section 3.10. Computation of Interest	31
Section 3.11. CUSIP Numbers	31

ARTICLE Four

SATISFACTION AND DISCHARGE

Section 4.01. Satisfaction and Discharge of Indenture	31
Section 4.02. Application of Trust Funds	32

ARTICLE Five

REMEDIES

Section 5.01. Events of Default	32
Section 5.02. Acceleration of Maturity; Rescission and Annulment	34
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee	35
Section 5.04. Trustee May File Proofs of Claim	36
Section 5.05. Trustee May Enforce Claims Without Possession of Securities	36
Section 5.06. Application of Money Collected	37
Section 5.07. Limitation on Suits	37
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, and Interest, if any	38
Section 5.09. Restoration of Rights and Remedies	38
Section 5.10. Rights and Remedies Cumulative	38
Section 5.11. Delay or Omission Not Waiver	38
Section 5.12. Control by Holders of Securities	38
Section 5.13. Waiver of Past Defaults	39
Section 5.14. Waiver of Usury, Stay or Extension Laws	39
Section 5.15. Undertaking for Costs	39

ARTICLE Six

THE TRUSTEE

Section 6.01. Notice of Defaults	40
Section 6.02. Certain Rights of Trustee	40
Section 6.03. Not Responsible for Recitals or Issuance of Securities	42
Section 6.04. May Hold Securities	42
Section 6.05. Money Held in Trust	42
Section 6.06. Compensation and Reimbursement	42
Section 6.07. Corporate Trustee Required; Eligibility; Conflicting Interests	43
Section 6.08. Resignation and Removal; Appointment of Successor	43
Section 6.09. Acceptance of Appointment by Successor	45
Section 6.10. Merger, Conversion, Consolidation or Succession to Business	46
Section 6.11. Appointment of Authenticating Agent	46
Section 6.12. Certain Duties and Responsibilities of the Trustee	47

ARTICLE Seven

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

Section 7.01. Disclosure of Names and Addresses of Holders	49
Section 7.02. Reports by Trustee	49
Section 7.03. Reports by Company	49
Section 7.04. Company to Furnish Trustee Names and Addresses of Holders	50

ARTICLE Eight

CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE

Section 8.01. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions	51
Section 8.02. Rights and Duties of Successor Entity	51
Section 8.03. Consolidations and Mergers of Parent and Sales, Leases and Conveyances Permitted Subject to Certain Conditions	52
Section 8.04. Rights and Duties of Successor Entity	52
Section 8.05. Officer’s Certificate and Opinion of Counsel	52
Section 8.06. Transfers to Majority Owned Subsidiaries	52

ARTICLE Nine

SUPPLEMENTAL INDENTURES

Section 9.01. Supplemental Indentures Without Consent of Holders	52
Section 9.02. Supplemental Indentures with Consent of Holders	54
Section 9.03. Execution of Supplemental Indentures	55
Section 9.04. Effect of Supplemental Indentures	55
Section 9.05. Conformity with Trust Indenture Act	55
Section 9.06. Reference in Securities to Supplemental Indentures	55

ARTICLE Ten

COVENANTS

Section 10.01. Payment of Principal, Premium or Make-Whole Amount, if any, and Interest, if any	56
Section 10.02. Maintenance of Office or Agency	56
Section 10.03. Money for Securities Payments to Be Held in Trust	57
Section 10.04. Existence	58
Section 10.05. Statement as to Compliance	58
Section 10.06. Parent Guarantee	59
Section 10.07. Waiver of Certain Covenants	59

ARTICLE Eleven

REDEMPTION OF SECURITIES

Section 11.01. Applicability of Article	59
Section 11.02. Election to Redeem; Notice to Trustee	59
Section 11.03. Selection by Trustee of Securities to Be Redeemed	60
Section 11.04. Notice of Redemption	60
Section 11.05. Deposit of Redemption Price	61
Section 11.06. Securities Payable on Redemption Date	61
Section 11.07. Securities Redeemed in Part	62

ARTICLE Twelve

SINKING FUNDS

Section 12.01. Applicability of Article	62
Section 12.02. Satisfaction of Sinking Fund Payments with Securities	62
Section 12.03. Redemption of Securities for Sinking Fund	63

ARTICLE Thirteen

REPAYMENT AT THE OPTION OF HOLDERS

Section 13.01. Applicability of Article	63
Section 13.02. Repayment of Securities	63
Section 13.03. Exercise of Option	64
Section 13.04. When Securities Presented for Repayment Become Due and Payable	64
Section 13.05. Securities Repaid in Part	65

ARTICLE Fourteen

DEFEASANCE AND COVENANT DEFEASANCE

Section 14.01. Applicability of Article: Company’s Option to Effect Defeasance or Covenant Defeasance	65
Section 14.02. Defeasance and Discharge	65
Section 14.03. Covenant Defeasance	66
Section 14.04. Conditions to Defeasance or Covenant Defeasance	66
Section 14.05. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions	68

ARTICLE Fifteen

MEETINGS OF HOLDERS OF SECURITIES

Section 15.01. Purposes for Which Meetings May Be Called	69
Section 15.02. Call, Notice and Place of Meetings	69
Section 15.03. Persons Entitled to Vote at Meetings	70
Section 15.04. Quorum; Action	70
Section 15.05. Determination of Voting Rights; Conduct and Adjournment of Meetings	71
Section 15.06. Counting Votes and Recording Action of Meetings	72

SIGNATURES	73

EXHIBIT A

FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR DEBT SECURITY	A-1

EXHIBIT B
FORMS OF CERTIFICATION	B-1

Trust Indenture Act Section		Indenture Section
§ 310(a)(1)		6.07
(a)(2)		Not applicable
(a)(3)		Not applicable
(a)(4)		Not applicable
(a)(5)		Not applicable
(b)		6.04, 6.08
§ 311		1.01(2), 6.04
§ 312		7.01
(a)		Not applicable
(b)		7.01
(c)		Not applicable
§ 313		1.01(“Outstanding”), 7.02
(c)		6.01, 7.03
§ 314		Not applicable
(a)		Not applicable
(b)		Not applicable
(c)(1)		Not applicable
(c)(2)		Not applicable
(c)(3)		Not applicable
(d)		Not applicable
(e)		Not applicable
§ 315(a)		3.03, 6.02
(b)		3.03, 6.02
(c)		3.03, 6.02
(d)		3.03, 6.02
(e)		6.08
§ 316(a)		Not applicable
(a)(1)(A)		Not applicable
(a)(1)(B)		Not applicable
(a)(2)		Not applicable
(b)		Not applicable
(c)		1.04
§317(a)(1)		Not applicable
(a)(2)		Not applicable
(b)		Not applicable
§318(a)		Not applicable

	[ ]
	as Trustee

Dated:	By:
		as Authenticating Agent

Dated:	By:
		Authorized Officer

Year	Redemption Price for Redemption Through Operation of the Sinking Fund	Redemption Price for Redemption Otherwise Than Through Operation of the Sinking Fund

	[ ], as Trustee

	By:
		Name:
		Title:

Year	Redemption Price	Year	Redemption Price

	[Name of Person Making Certification]


	(Authorized Signature)
	Name:
	Title:

	[Euroclear Bank S.A./N.V., as Operator of the Euroclear System] [Clearstream Banking Luxembourg]

	By:

Article Sixteen

SUBORDINATION OF SECURITIES

Section 16.01. Securities Subordinate to Senior Debt	73
Section 16.02. Payment Over of Proceeds Upon Dissolution, Etc.	73
Section 16.03. Prior Payment to Senior Debt upon Acceleration of Securities	75
Section 16.04. No Payment When Senior Debt in Default	75
Section 16.05. Payment Permitted in Certain Situations	76
Section 16.06. Subrogation to Rights of Holders of Senior Debt	76
Section 16.07. Provisions Solely to Define Relative Rights	76
Section 16.08. Trustee to Effectuate Subordination	77
Section 16.09. No Waiver of Subordination Provisions	77
Section 16.10. Notice to Trustee	77
Section 16.11. Reliance on Judicial Order or Certificate of Liquidating Agent	78
Section 16.12. Trustee Not Fiduciary for Holders of Senior Debt	78
Section 16.13. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights	78
Section 16.14. Articles Applicable to Paying Agents	79

SIGNATURES	80

EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SUBORDINATED DEBT SECURITY	A-1

EXHIBIT B
FORMS OF CERTIFICATION	B-1

	[     ]
	as Trustee

Dated:	By:
		as Authenticating Agent

Dated:	By:
		Authorized Officer

	EMPIRE STATE REALTY TRUST OP, L.P.

	By:
		Name:
		Title:

	EMPIRE STATE REALTY TRUST, INC.,

	By:
		Name:
		Title:

	[     ], as Trustee

	By:
		Name:
		Title:

	Re:	Empire State Realty Trust, Inc.
		Empire State Realty OP, L.P.
		Registration Statement on Form S-3

		Very truly yours,

		/s/ Skadden, Arps, Slate, Meagher & Flom LLP