SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
Empire State Realty OP, L.P.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
| Series ES operating partnership units | | 292102100 |
| Series 60 operating partnership units | | 292102209 |
| Series 250 operating partnership units | | 292102308 |
| Series PR operating partnership units | | — |
| (Title of Class of Securities) | | (CUSIP Number of Class of Securities) |
Thomas N. Keltner, Jr.
Executive Vice President and General Counsel
Empire State Realty Trust, Inc.
One Grand Central Place
60 East 42nd Street
New York, NY 10165
(212) 687-8700
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Yoel Kranz
Ettore Santucci
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
(212) 813-8800
Calculation of Filing Fee
| Transaction Valuation(1) | | Amount of Filing Fee(2) |
| $248,850,000 | | $32,052 |
| (1) | Estimated solely for purpose of calculating the Filing Fee pursuant to Rule 0-11 under the Securities Exchange Act of 1934, as amended. The valuation is calculated based on the product of multiplying(a) 15,000,000, the number of operating partnership units of Empire State Realty OP, L.P. proposed to be exchanged, by (b) $16.59, which is the average of the high and low price for the Class A common stock of Empire State Realty Trust, Inc. (“ESRT”) on the New York Stock Exchange on May 23, 2014. Holders of operating partnership units may elect to have their units redeemed for cash equal to the value of the ESRT Class A common stock or, at the election of ESRT, for shares of ESRT Class A common stock. |
| | |
| (2) | The Amount of Filing Fee calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, equals $128.80 for each $1,000,000 of the value of the transaction. |
| S | Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and date of its filing. |
| | Amount Previously Paid: $32,052 | | Filing Party: Empire State Realty OP, L.P. |
| | | |
| | Form or Registration No.: Schedule TO | | Date Filed: May 28, 2014 |
| £ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| £ | third-party tender offer subject to Rule 14d-1. |
| S | issuer tender offer subject to Rule 13e-4. |
| £ | going-private transaction subject to Rule 13e-3. |
| £ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: £
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| £ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer). |
| £ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer). |
AMENDMENT NO. 3 TO SCHEDULE TO
This Amendment No. 3 (this “Amendment No. 3”) amends and supplements the Tender Offer Statement on Schedule TO (as amended, the “Schedule TO”), originally filed with the Securities and Exchange Commission (the “SEC”) on May 28, 2014 and amended by Amendment No. 1 filed with the SEC on June 17, 2014 and by Amendment No. 2 filed with the SEC on June 19, 2014. The Schedule TO, as amended by this Amendment No. 3, relates to the offer (the “Exchange Offer”) by Empire State Realty OP, L.P., a Delaware limited partnership (the “Company”), to acquire up to 15,000,000 operating partnership units on a pro rata basis from all tendering holders of (i) Series ES operating partnership units (“Series ES OP Units”), (ii) Series 60 operating partnership units (“Series 60 OP Units”), (iii) Series 250 operating partnership units (“Series 250 OP Units”), and (iv) Series PR operating partnership units (“Series PR OP Units” and, together with Series ES OP Units, Series 60 OP Units and Series 250 OP Units, the “OP Units”).
This Amendment No. 3is being filed in order (i) to extend the expiration date of the Exchange Offer, (ii) to include as exhibits written communications made by the Company announcing such extension, and (iii) to make certain amendments as indicated below to the Schedule TO and theOffer to Exchange, dated May 28, 2014, as amended on June 17, 2014 (the “Offer to Exchange”).Except as amended hereby as set forth below, all terms of the Exchange Offer and all other disclosures set forth in the Schedule TO and the exhibits thereto remain unchanged and are hereby expressly incorporated into this Amendment No. 3 by reference.All capitalized terms in this Amendment No. 3 and not otherwise defined herein have the respective meaning ascribed to them in the Schedule TO. You should read this Amendment No. 3 together with the Schedule TO and the Offer to Exchange, a copy of which was filed as Exhibit (a)(1)(A) to the Schedule TO.
The Schedule TO as amended and supplemented by this Amendment No. 3 is intended to satisfy the reporting requirements of Rule 13e-4 under the Securities Exchange Act of 1934, as amended.
Items 1 - 11.
Items 1, 4 and 11 of the Schedule TO and the sections of the Offer to Exchange referred to in such Items are hereby amended and supplemented by the following:
“On June 26, 2014, the Company disseminated a letter to holders of OP Units announcing that the Company had extended the Exchange Offer until midnight, New York City Time, on August 21, 2014, unless further extended or earlier terminated by the Company. A press release was also issued on June 26, 2014 announcing the extension. Copies of the press release and letter to holders of OP Units are filed as Exhibits (a)(5)(C) and (a)(1)(I), respectively, to this Amendment No. 3 and are incorporated by reference into the Schedule TO.”
The “Summary Term Sheet” section of the Offer to Exchange (and Items 1, 2, 4 and 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Exchange) is hereby amended by adding the following under the heading “The OP Units Subject to the Exchange Offer”:
“As previously announced, the Companyhas exercised its options to purchase the ground and operating leases at 112 West 34th Streetand the ground lease at 1400 Broadway for a total of approximately $734 million in cash, common stock and OP units. Subject to customary closing conditions, these acquisitions are expected to close during July 2014. Pro forma for the closing of these acquisitions and the issuance of approximately 20 million new Series PR OP Units in connection therewith, there will be 103,722,115 Series PR OP Units outstanding and 169,004,698 total outstanding OP Units.”
| Item 12. | Exhibits. |
| | | |
| Exhibit No. | | Description |
| | |
| (a)(1)(A)* | | Offer to Exchange, dated May 28, 2014. |
| | |
| (a)(1)(B)(i)* | | Letter of Transmittal to the holders of Series ES OP Units, dated May 28, 2014. |
| | |
| (a)(1)(B)(ii)* | | Letter of Transmittal to the holders of Series 60 OP Units, dated May 28, 2014. |
| | |
| (a)(1)(B)(iii)* | | Letter of Transmittal to the holders of Series 250 OP Units, dated May 28, 2014. |
| | |
| (a)(1)(B)(iv)* | | Letter of Transmittal to the holders of Series PR OP Units, dated May 28, 2014. |
| | |
| (a)(1)(C)* | | Form of Letter to Brokers, Dealers and Other Nominees. |
| | |
| (a)(1)(D)* | | Form of Letter to Clients for use by Brokers, Dealers and Other Nominees. |
| | |
| (a)(1)(E)* | | Form of Cover Letter to Beneficial Holders of OP Units. |
| | |
| (a)(1)(F)* | | Form of Instruction Booklet. |
| | |
| (a)(1)(G)* | | Form of Document Package Guide. |
| | |
| (a)(1)(H)** | | Letter to holders of OP Units, dated June 19, 2014. |
| | |
| (a)(1)(I)*** | | Letter to holders of OP Units, dated June 26, 2014. |
| | |
| (a)(1)(J)*** | | Letter from the Company, dated June 26, 2014. |
| | |
| (a)(2) | | Not applicable. |
| | |
| (a)(3) | | Not applicable. |
| | |
| (a)(4) | | Not applicable. |
| | |
| (a)(5)(A)* | | Press release of Empire State Realty Trust, Inc., dated May 28, 2014. |
| | |
| (a)(5)(B)* | | Transcript of recorded investor presentation by Anthony E. Malkin and Thomas N. Keltner, Jr., dated May 28, 2014. |
| | |
| (a)(5)(C)*** | | Press release of Empire State Realty Trust, Inc., dated June 26, 2014. |
| | |
| (b) | | Not applicable. |
| | |
| (d)(1) | | 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 Registrant's Form 10-Q filed with the SEC on November 12, 2013. |
| | |
| (d)(2) | | Secured Revolving and Term Credit Facility dated October 7, 2013 among Empire State Realty OP, L.P., ESRT Empire State Building, L.L.C., Empire State Realty Trust, Inc., the subsidiaries of Empire State Realty OP, L.P. from time to time party thereto, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA and the other lenders party thereto, incorporated by reference to Exhibit 10.19 to the Registrant's Form 10-Q filed with the SEC on November 12, 2013. |
| (d)(3) | | Tax Protection Agreement among Empire State Realty Trust, Inc., Empire State Realty OP, L.P., and the parties named therein, dated October 7, 2013, incorporated by reference to Exhibit 10.3 to the Registrant's Form 10-Q filed with the SEC on November 12, 2013. |
| (g) | | Not applicable. |
| | |
| (h) | | Not applicable. |
| | | | |
| *** | Filed herewith. |
| ** | Previously filed as an exhibit to Amendment No. 2 to the Schedule TO, filed on June 19, 2014. |
| * | Previously filed as an exhibit to the Schedule TO, filed on May 28, 2014. |
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| | | EMPIRE STATE REALTY OP, L.P. | |
| | | | | | |
| | | By: | | Empire State Realty Trust, Inc., as general partner | |
| Date: June 26, 2014 | | | | | |
| | | By: | | /s/ Thomas N. Keltner, Jr. | |
| | | Name: | | Thomas N. Keltner, Jr. | |
| | | Title: | | Executive Vice President and General Counsel | |
