UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 2, 2017
Empire State Realty Trust, Inc.
(Exact Name of Registrant as Specified in its Charter)
Maryland | 001-36105 | 37-1645259 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) |
111 West 33rd Street, 12th Floor
New York, New York 10120
(Address of principal executive offices) (Zip code)
(212) 687-8700
(Registrants telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 8.01 | Other Events. |
On February 2, 2017, Empire State Realty Trust, Inc., a Maryland corporation (the Company), filed with the Securities and Exchange Commission a prospectus supplement to the prospectus included in the Companys shelf registration statement on Form S-3 (File No. 333-199199), relating to the permitted resale from time to time by the stockholder named therein of an aggregate of 29,610,854 shares of the Companys common stock, par value $0.01 per share. The shares were issued to the stockholder in a private placement on August 23, 2016 pursuant to a securities purchase agreement between the Company and the stockholder. The Company registered the shares covered by the prospectus supplement in compliance with its registration rights obligations pertaining to the issuance of the shares to the stockholder, and such registration does not necessarily mean that the stockholder will sell or offer to sell any of the shares. The Company will not receive any proceeds from the sale of shares by the stockholder.
In connection with the filing of the prospectus supplement, the Company is filing opinions of its counsel as Exhibits 5.1 and 8.1 hereto, which exhibits are incorporated herein by reference and into the registration statement and the prospectus supplement.
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits. |
Exhibit |
Description | |
5.1 | Opinion of Goodwin Procter LLP regarding the legality of common stock offered | |
8.1 | Opinion of Goodwin Procter LLP with respect to certain tax matters | |
23.1 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
23.2 | Consent of Goodwin Procter LLP (included in Exhibit 8.1) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
EMPIRE STATE REALTY TRUST, INC. | ||||||
Date: February 2, 2017 |
By: | /s/ David A. Karp | ||||
Name: | David A. Karp | |||||
Title: | Executive Vice President and Chief Financial Officer |
INDEX TO EXHIBITS
Exhibit |
Description of Exhibit | |
5.1 | Opinion of Goodwin Procter LLP regarding the legality of common stock offered | |
8.1 | Opinion of Goodwin Procter LLP with respect to certain tax matters | |
23.1 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
23.2 | Consent of Goodwin Procter LLP (included in Exhibit 8.1) |
Exhibit 5.1
Goodwin Procter LLP The New York Times Building 620 Eighth Avenue New York, NY 10018
goodwinlaw.com +1 212 813 8800 |
February 2, 2017
Empire State Realty Trust, Inc.
111 West 33rd Street, 12th Floor
New York, New York 10120
Re: | Securities Registered under Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333- 199199) (as amended or supplemented, the Registration Statement) filed on October 7, 2014 with the Securities and Exchange Commission (the Commission) pursuant to the Securities Act of 1933, as amended (the Securities Act), relating to the registration by Empire State Realty Trust, Inc., a Maryland corporation (the Company), of securities of the types specified therein. The Registration Statement became effective upon filing on October 7, 2014. Reference is made to our opinion letter dated October 7, 2014 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the Prospectus Supplement) filed on February 2, 2017 by the Company with the Commission pursuant to Rule 424(b)(7) under the Securities Act. The Prospectus Supplement relates to the registration of up to 29,610,854 shares of the Companys common stock, par value $0.01 per share (the Shares), to be sold from time to time by the selling stockholder listed in the Prospectus Supplement under the caption Selling Stockholder. We understand that the Shares are to be offered and sold in the manner described in the Prospectus Supplement.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Maryland General Corporation Law (which includes reported judicial decisions interpreting the Maryland General Corporation Law).
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and validly issued and are fully paid and non-assessable.
Empire State Realty Trust, Inc.
February 2, 2017
Page 2
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Companys Current Report on Form 8-K filed with the Commission on February 2, 2017, which is incorporated by reference into the Registration Statement and Prospectus Supplement, and to the references to our firm under the caption Legal Matters in the Registration Statement and Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours, |
/s/ Goodwin Procter LLP |
GOODWIN PROCTER LLP |
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Exhibit 8.1
As of February 2, 2017
Empire State Realty Trust, Inc.
Empire State Realty OP, L.P.
111 West 33rd Street, 12th Floor
New York, NY 10120
Ladies and Gentlemen:
We have acted as counsel to Empire State Realty Trust, Inc., a Maryland corporation (the Company) and Empire State Realty OP, L.P., a Delaware limited partnership through which the Company owns substantially all its properties and assets (the Operating Partnership) in connection with the filing of a Prospectus Supplement on Form 424(b)(7) (as amended or supplemented, the Prospectus Supplement) with the United Stated Securities and Exchange Commission (the SEC) pursuant to the Securities Act of 1933, as amended (the Securities Act), relating to the registration of 29,610,854 shares of Class A common stock, par value $0.01 per share, of the Company.
The Companys Registration Statement on Form S-3 (File No. 333-199199), originally filed by the Company with the SEC on October 7, 2014 under the Securities Act is referred to in this opinion letter as the Registration Statement.
This opinion letter relates to the Companys qualification for U.S. federal income tax purposes as a real estate investment trust (a REIT) under the Internal Revenue Code of 1986, as amended (the Code), for taxable years commencing with the Companys taxable year ended December 31, 2013, and the accuracy of certain matters discussed in the Registration Statement and the Prospectus Supplement under the heading U.S. Federal Income Tax Considerations and Supplemental Material Federal Income Tax Considerations.
In rendering the following opinions, we have reviewed and relied upon the Articles of Amendment and Restatement of the Company, the Bylaws of the Company, and the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, in each case, as may be amended or amended and restated and as in effect through the date hereof (the Organizational Documents). For purposes of this opinion letter, we have assumed (i) the genuineness of all signatures on documents we have examined, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to the original documents of all documents submitted to us as copies, (iv) the conformity to the original documents of copies obtained by us from filings with the SEC, (v) the conformity, to the extent relevant to our opinions, of final documents to all documents submitted to us as drafts, (vi) the authority and capacity of the individual or individuals who executed any such documents on behalf of any person, (vii) due execution and delivery of all such documents by all the parties thereto, (viii) the compliance of each party with all material provisions of such documents, and (ix) the accuracy and completeness of all records made available to us.
We also have reviewed and relied upon (i) the representations and covenants of the Company and the Operating Partnership contained in a letter that they provided to us in connection with the preparation of this opinion letter (the REIT Certificate) regarding the formation, organization, ownership and operations of the Company and its subsidiaries and other matters affecting the Companys ability to qualify as a REIT and (ii) a private letter ruling, dated August 16, 2011, issued by the Internal Revenue Service (the IRS) that addresses certain matters pertaining to the Companys qualification as a REIT (the Ruling). We assume that each of the representations and covenants in the REIT Certificate has been, is and will be true, correct and complete, and not breached. We also assume that the Company and its subsidiaries have been, are and will be owned and operated in accordance with the REIT Certificate and that all representations and covenants that speak to the best of knowledge and belief (or mere knowledge and/or belief) of any person(s) or party(ies), or are subject to similar qualification, have been, are and will continue to be true, correct and complete as if made without such qualification. To the extent such representations and covenants speak to the intended ownership or operations of any entity, we assume that such
Empire State Realty Trust, Inc.
Empire State Realty OP, L.P.
February 2, 2017
Page 2 of 3
entity will in fact be owned and operated in accordance with such stated intent. We further assume that the factual representations, assumptions and warranties made to the IRS in connection with the Ruling were true, correct, and complete when made and will continue to be true, correct and complete insofar as they relate to the matters that are the subject of the Ruling and that the Ruling will remain in effect and will not be revoked by the IRS.
Based upon the foregoing and subject to the limitations set forth herein, we are of the opinion that:
i. | The Company has been organized in conformity with the requirements for qualification and taxation as a REIT under the Code and its prior, current and proposed ownership, organization and method of operations as described in the REIT Certificate have allowed and will continue to allow the Company to satisfy the requirements for qualification and taxation as a REIT under the Code commencing with its taxable year ended December 31, 2013; and |
ii. | The statements set forth in the Registration Statement under the heading U.S. Federal Income Tax Considerations, as supplemented and amended in the Prospectus Supplement under the heading Supplemental Material Federal Income Tax Considerations, insofar as such statements describe applicable U.S. federal income tax law, are correct in all material respects. |
* * * * *
We express no opinion other than the opinions expressly set forth herein. Our opinions are not binding on the IRS or a court. The IRS may disagree with and challenge our conclusions, and a court could sustain such a challenge. Our opinions are based upon the Code, the Income Tax Regulations and Procedure and Administration Regulations promulgated thereunder and existing administrative and judicial interpretations thereof (including the practices and policies of the IRS in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives such a ruling), all as in effect as of the date of this opinion letter or, to the extent different and relevant for a prior taxable year or other period, as in effect for the applicable taxable year or period. Changes in applicable law could cause the U.S. federal income tax treatment of the Company to differ materially and adversely from the treatment described herein and render the tax discussion in the Registration Statement under the heading U.S. Federal Income Tax Considerations, as supplemented and amended in the Prospectus Supplement under the heading Supplemental Material Federal Income Tax Considerations, incorrect or incomplete.
In rendering our opinions, we have relied solely on the Organizational Documents, the REIT Certificate, the Ruling, and the assumptions set forth herein. For purposes of our opinions, we have not investigated or verified the accuracy of any of the representations in the Ruling or the REIT Certificate or any of our assumptions set forth herein. We also have not investigated or verified the ability of the Company and its subsidiaries to operate in compliance with the Ruling, the REIT Certificate or our assumptions. Differences between the actual ownership and operations of such entities and the prior, proposed and intended ownership and operations described in the Ruling, the REIT Certificate or our assumptions could result in U.S. federal income tax treatment of the Company that differs materially and adversely from the treatment described herein. The Companys actual qualification as a REIT depends on the Company meeting and having met, in its actual ownership and operations, the applicable asset composition, source of income, shareholder diversification, distribution and other requirements of the Code necessary for a corporation to qualify as a REIT. We will not monitor actual results or verify the Companys compliance with the requirements for qualification and taxation as a REIT, and no assurance can be given that the actual ownership and operations of the Company and its affiliates have satisfied or will satisfy those requirements.
Our opinions do not preclude the possibility that the Company may need to utilize one or more of the various savings provisions under the Code and the regulations thereunder that would permit the Company to cure certain violations of the requirements for qualification and taxation as a REIT. Utilizing such savings provisions could require the Company to pay significant penalty or excise taxes and/or interest charges and/or make additional distributions to shareholders that the Company otherwise would not make.
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Empire State Realty Trust, Inc.
Empire State Realty OP, L.P.
February 2, 2017
Page 3 of 3
We hereby consent to the inclusion of this opinion letter as Exhibit 8.1 to the Prospectus Supplement and to the references to our firm under the heading Supplemental U.S. Federal Income Tax Considerations in the Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder, nor do we thereby admit that we are experts with respect to any part of such Prospectus Supplement within the meaning of the term experts as used in the Securities Act or the rules and regulations of the SEC promulgated thereunder.
This opinion letter speaks only as of the date hereof, and we undertake no obligation to update this opinion letter or to notify any person of any changes in facts, circumstances or applicable law (including without limitation any discovery of any facts that are inconsistent with the REIT Certificate or our assumptions).
Very truly yours, |
/s/ Goodwin Procter LLP |
GOODWIN PROCTER LLP |
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