Empire State Realty OP, L.P. 10-Q

ITEM 1. FINANCIAL STATEMENTS Empire State Realty OP, L.P. Condensed Consolidated Balance Sheets (amounts in thousands, except per unit amounts) September 30, 2021 December 31, 2020 ASSETS (unaudited) Commercial real estate properties, at cost: Land $ 201,196 $ 201,196 Development costs 8,007 7,966 Building and improvements 2,978,531 2,924,804 3,187,734 3,133,966 Less: accumulated depreciation ( 1,055,731 ) ( 941,612 ) Commercial real estate properties, net 2,132,003 2,192,354 Cash and cash equivalents 582,188 526,714 Restricted cash 38,779 41,225 Tenant and other receivables 21,664 21,541 Deferred rent receivables 228,394 222,508 Prepaid expenses and other assets 60,522 77,182 Deferred costs, net 189,327 203,853 Acquired below-market ground leases, net 338,862 344,735 Right of use assets 28,945 29,104 Goodwill 491,479 491,479 Total assets $ 4,112,163 $ 4,150,695 LIABILITIES AND CAPITAL Liabilities: Mortgage notes payable, net $ 773,925 $ 775,929 Senior unsecured notes, net 973,320 973,159 Unsecured term loan facilities, net 388,095 387,561 Unsecured revolving credit facility — — Accounts payable and accrued expenses 94,216 103,203 Acquired below-market leases, net 23,512 31,705 Ground lease liabilities 28,945 29,104 Deferred revenue and other liabilities 90,427 88,319 Tenants’ security deposits 26,042 30,408 Total liabilities 2,398,482 2,419,388 Commitments and contingencies Capital: Private perpetual preferred units: Private perpetual preferred units, $ 13.52 liquidation preference, 4,664 issued and outstanding in 2021 and 2020, respectively 21,936 21,936 Private perpetual preferred units, $ 16.62 liquidation preference, 1,560 issued and outstanding in 2021 and 2020 8,004 8,004 Series PR operating partnership units: ESRT partner's capital ( 2,851 and 2,853 general partner operating partnership units and 170,441 and 168,713 limited partner operating partnership units outstanding in 2021 and 2020, respectively) 1,038,978 1,055,249 Limited partners' interests ( 80,155 and 80,355 limited partner operating partnership units outstanding in 2021 and 2020, respectively) 649,690 648,543 Series ES operating partnership units 22,611 and 23,678 limited partner operating partnership units outstanding in 2021 and 2020, respectively) ( 3,172 ) ( 1,348 ) Series 60 operating partnership units ( 6,019 and 6,425 limited partner operating partnership units outstanding in 2021 and 2020, respectively) ( 1,176 ) ( 721 ) Series 250 operating partnership units ( 3,027 and 3,255 limited partner operating partnership units outstanding in 2021 and 2020, respectively) ( 579 ) ( 356 ) Total capital 1,713,681 1,731,307 Total liabilities and capital $ 4,112,163 $ 4,150,695 The accompanying notes are an integral part of these consolidated financial statements 2 Empire State Realty OP, L.P. Condensed Consolidated Statements of Operations (unaudited) (amounts in thousands, except per unit amounts) Three Months Ended September 30, Nine Months Ended September 30, 2021 2020 2021 2020 Revenues: Rental revenue $ 139,558 $ 139,909 $ 420,586 $ 426,021 Observatory revenue 12,796 4,419 23,758 24,049 Lease termination fees 11,321 331 15,949 1,575 Third-party management and other fees 314 283 917 930 Other revenue and fees 1,059 1,633 2,550 5,254 Total revenues 165,048 146,575 463,760 457,829 Operating expenses: Property operating expenses 33,357 33,836 92,429 105,054 Ground rent expenses 2,331 2,331 6,994 6,994 General and administrative expenses 14,427 14,517 42,369 48,617 Observatory expenses 6,370 5,931 16,226 18,087 Real estate taxes 29,566 31,196 92,367 90,029 Impairment charges — 2,103 — 6,204 Depreciation and amortization 65,794 44,733 155,339 143,609 Total operating expenses 151,845 134,647 405,724 418,594 Total operating income 13,203 11,928 58,036 39,235 Other income (expense): Interest income 211 366 497 2,529 Interest expense ( 23,577 ) ( 23,360 ) ( 70,553 ) ( 66,906 ) Loss on early extinguishment of debt — — ( 214 ) ( 86 ) IPO litigation expense — ( 1,165 ) — ( 1,165 ) Loss before income taxes ( 10,163 ) ( 12,231 ) ( 12,234 ) ( 26,393 ) Income tax (expense) benefit ( 20 ) ( 38 ) 3,271 2,794 Net loss ( 10,183 ) ( 12,269 ) ( 8,963 ) ( 23,599 ) Private perpetual preferred unit distributions ( 1,050 ) ( 1,050 ) ( 3,151 ) ( 3,147 ) Net loss attributable to common unitholders $ ( 11,233 ) $ ( 13,319 ) $ ( 12,114 ) $ ( 26,746 ) Total weighted average units: Basic 277,716 280,940 277,829 285,640 Diluted 277,716 280,940 277,829 285,640 Earnings per unit attributable to common unitholders: Basic $ ( 0.04 ) $ ( 0.05 ) $ ( 0.04 ) $ ( 0.10 ) Diluted $ ( 0.04 ) $ ( 0.05 ) $ ( 0.04 ) $ ( 0.10 ) Dividends per unit $ 0.035 $ — $ 0.070 $ 0.210 The accompanying notes are an integral part of these consolidated financial statements 3 Empire State Realty OP, L.P. Condensed Consolidated Statements of Comprehensive Loss (unaudited) (amounts in thousands) Three Months Ended September 30, Nine Months Ended September 30, 2021 2020 2021 2020 Net loss $ ( 10,183 ) $ ( 12,269 ) $ ( 8,963 ) $ ( 23,599 ) Other comprehensive income (loss): Unrealized gain (loss) on valuation of interest rate swap agreements ( 103 ) 64 ( 139 ) ( 19,340 ) Less: amount reclassified into interest expense 2,920 2,873 8,687 5,986 Other comprehensive income (loss) 2,817 2,937 8,548 ( 13,354 ) Comprehensive loss $ ( 7,366 ) $ ( 9,332 ) $ ( 415 ) $ ( 36,953 ) The accompanying notes are an integral part of these consolidated financial statements 4 Empire State Realty OP, L.P. Condensed Consolidated Statements of Capital For The Three Months Ended September 30, 2021 and 2020 (unaudited) (amounts in thousands) Series PR Operating Partnership Units Series ES Operating Partnership Units Limited Partners Series 60 Operating Partnership Units Limited Partners Series 250 Operating Partnership Units Limited Partners General Partner Limited Partners Private Perpetual Preferred Units Private Perpetual Preferred Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Total Capital Balance at June 30, 2021 6,224 $ 29,940 173,400 $ 1,055,659 80,241 $ 650,473 22,923 $ ( 1,692 ) 6,112 $ ( 789 ) 3,045 $ ( 383 ) $ 1,733,208 Issuance of OP units, net of costs — — — — — — — — — — — — — Conversion of operating partnership units to ESRT Partner's Capital — — 542 931 ( 119 ) ( 960 ) ( 312 ) 17 ( 93 ) 10 ( 18 ) 2 — Repurchases of common shares — — ( 626 ) ( 6,510 ) — — — — — — — — ( 6,510 ) Equity compensation — — ( 24 ) 180 33 5,198 — — — — — — 5,378 Distributions — ( 1,050 ) — ( 6,061 ) — ( 2,806 ) — ( 795 ) — ( 211 ) — ( 106 ) ( 11,029 ) Net income — 1,050 — ( 6,977 ) — ( 2,954 ) — ( 931 ) — ( 248 ) — ( 123 ) ( 10,183 ) Other comprehensive income (loss) — — 1,756 739 229 62 31 2,817 Balance at September 30, 2021 6,224 $ 29,940 173,292 $ 1,038,978 80,155 $ 649,690 22,611 $ ( 3,172 ) 6,019 $ ( 1,176 ) 3,027 $ ( 579 ) $ 1,713,681 Series PR Operating Partnership Units Series ES Operating Partnership Units Limited Partners Series 60 Operating Partnership Units Limited Partners Series 250 Operating Partnership Units Limited Partners General Partner Limited Partners Private Perpetual Preferred Units Private Perpetual Preferred Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Total Capital Balance at June 30, 2020 6,224 $ 29,940 173,347 $ 1,080,221 82,766 $ 647,520 24,529 $ ( 770 ) 6,776 $ ( 588 ) 3,405 $ ( 285 ) $ 1,756,038 Issuance of OP units, net of costs — — — — — — — — — — — — — Conversion of operating partnership units to ESRT Partner's Capital — — 779 2,386 ( 313 ) ( 2,435 ) ( 275 ) 23 ( 136 ) 19 ( 55 ) 7 — Repurchases of common shares — — ( 1,134 ) ( 7,345 ) — — — — — — — — ( 7,345 ) Equity compensation — — — 334 ( 1,313 ) 5,170 — — — — — — 5,504 Distributions — ( 1,050 ) — — — — — — — — — — ( 1,050 ) Net income — 1,050 — ( 8,204 ) — ( 3,490 ) — ( 1,145 ) — ( 320 ) — ( 160 ) ( 12,269 ) Other comprehensive income (loss) — — — 1,877 — 700 — 255 — 70 — 35 2,937 Balance at September 30, 2020 6,224 $ 29,940 172,992 $ 1,069,269 81,140 $ 647,465 24,254 $ ( 1,637 ) 6,640 $ ( 819 ) 3,350 $ ( 403 ) $ 1,743,815 5 Empire State Realty OP, L.P. Condensed Consolidated Statements of Capital For The Nine Months Ended September 30, 2021 and 2020 (unaudited) (amounts in thousands) Series PR Operating Partnership Units Series ES Operating Partnership Units Limited Partners Series 60 Operating Partnership Units Limited Partners Series 250 Operating Partnership Units Limited Partners General Partner Limited Partners Private Perpetual Preferred Units Private Perpetual Preferred Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Total Capital Balance at December 31, 2020 6,224 $ 29,940 171,565 $ 1,055,249 80,355 $ 648,543 23,678 $ ( 1,348 ) 6,424 $ ( 721 ) 3,255 $ ( 356 ) $ 1,731,307 Issuance of private perpetual preferred in exchange for common units — — — — — — — — — — — — — Conversion of operating partnership units to ESRT Partner's Capital — — 2,682 7,766 ( 982 ) ( 7,918 ) ( 1,067 ) 72 ( 405 ) 50 ( 228 ) 30 — Repurchases of common units — — ( 1,009 ) ( 10,043 ) — — — — — — — — ( 10,043 ) Equity compensation — — 54 344 782 15,072 — — — — — — 15,416 Distributions — ( 3,151 ) — ( 12,124 ) — ( 5,068 ) — ( 1,601 ) — ( 426 ) — ( 214 ) ( 22,584 ) Net income (loss) — 3,151 — ( 7,523 ) — ( 3,186 ) — ( 1,005 ) — ( 267 ) — ( 133 ) ( 8,963 ) Other comprehensive income — — — 5,309 — 2,247 — 710 — 188 — 94 8,548 Balance at September 30, 2021 6,224 $ 29,940 173,292 $ 1,038,978 80,155 $ 649,690 22,611 $ ( 3,172 ) 6,019 $ ( 1,176 ) 3,027 $ ( 579 ) $ 1,713,681 Series PR Operating Partnership Units Series ES Operating Partnership Units Limited Partners Series 60 Operating Partnership Units Limited Partners Series 250 Operating Partnership Units Limited Partners General Partner Limited Partners Private Perpetual Preferred Units Private Perpetual Preferred Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Operating Partnership Units Operating Partnership Unitholders Total Capital Balance at December 31, 2019 6,170 $ 29,151 181,894 $ 1,228,520 81,388 $ 680,580 25,810 $ 7,262 7,025 $ 1,593 3,535 $ 807 $ 1,947,913 Issuance of private perpetual preferred in exchange for common units 54 789 — — ( 97 ) ( 800 ) 43 11 — — — — — Conversion of operating partnership units to ESRT Partner's Capital — — 5,155 23,903 ( 2,986 ) ( 23,726 ) ( 1,599 ) ( 157 ) ( 385 ) ( 14 ) ( 185 ) ( 6 ) — Repurchases of common units — — ( 14,205 ) ( 121,950 ) — — — — — — — — ( 121,950 ) Equity compensation — — 148 719 2,835 19,455 — — — — — — 20,174 Distributions — ( 3,147 ) — ( 37,181 ) — ( 17,619 ) — ( 5,264 ) — ( 1,435 ) — ( 723 ) ( 65,369 ) Net income (loss) — 3,147 — ( 16,502 ) — ( 6,954 ) — ( 2,327 ) — ( 642 ) — ( 321 ) ( 23,599 ) Other comprehensive loss — — — ( 8,240 ) — ( 3,471 ) — ( 1,162 ) — ( 321 ) — ( 160 ) ( 13,354 ) Balance at September 30, 2020 6,224 $ 29,940 172,992 $ 1,069,269 81,140 $ 647,465 24,254 $ ( 1,637 ) 6,640 $ ( 819 ) 3,350 $ ( 403 ) $ 1,743,815 The accompanying notes are an integral part of these consolidated financial statements 6 Empire State Realty OP, L.P. Condensed Consolidated Statements of Cash Flows (unaudited) (amounts in thousands) Nine Months Ended September 30, 2021 2020 Cash Flows From Operating Activities Net loss $ ( 8,963 ) $ ( 23,599 ) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation and amortization 155,339 143,609 Impairment charges — 6,204 Amortization of non-cash items within interest expense 7,978 6,803 Amortization of acquired above- and below-market leases, net ( 5,615 ) ( 2,953 ) Amortization of acquired below-market ground leases 5,873 5,873 Straight-lining of rental revenue ( 13,197 ) ( 5,878 ) Equity based compensation 15,416 20,174 Settlement of derivative contract — ( 20,281 ) Loss on early extinguishment of debt 214 86 Increase (decrease) in cash flows due to changes in operating assets and liabilities: Security deposits ( 4,366 ) 20,697 Tenant and other receivables ( 123 ) ( 431 ) Deferred leasing costs ( 12,324 ) ( 8,241 ) Prepaid expenses and other assets 18,660 14,680 Accounts payable and accrued expenses ( 1,285 ) ( 1,699 ) Deferred revenue and other liabilities 9,420 8,509 Net cash provided by operating activities 167,027 163,553 Cash Flows From Investing Activities Development costs ( 41 ) ( 1,336 ) Additions to building and improvements ( 70,719 ) ( 112,018 ) Net cash used in investing activities ( 70,760 ) ( 113,354 ) The accompanying notes are an integral part of these consolidated financial statements 7 Empire State Realty OP, L.P. Condensed Consolidated Statements of Cash Flows (continued) (unaudited) (amounts in thousands) Nine Months Ended September 30, 2021 2020 Cash Flows From Financing Activities Repayment of mortgage notes payable ( 3,053 ) ( 2,939 ) Proceeds from unsecured senior notes — 175,000 Proceeds from unsecured term loan — 175,000 Repayment of unsecured term loan — ( 50,000 ) Proceeds from unsecured revolving credit facility — 550,000 Repayment of unsecured revolving credit facility — ( 550,000 ) Deferred financing costs ( 7,559 ) ( 3,585 ) Repurchases of common units ( 10,043 ) ( 121,950 ) Distributions ( 22,584 ) ( 65,369 ) Net cash (used in) provided by financing activities ( 43,239 ) 106,157 Net increase in cash and cash equivalents and restricted cash 53,028 156,356 Cash and cash equivalents and restricted cash—beginning of period 567,939 271,597 Cash and cash equivalents and restricted cash—end of period $ 620,967 $ 427,953 Reconciliation of Cash and Cash Equivalents and Restricted Cash: Cash and cash equivalents at beginning of period $ 526,714 $ 233,946 Restricted cash at beginning of period 41,225 37,651 Cash and cash equivalents and restricted cash at beginning of period $ 567,939 $ 271,597 Cash and cash equivalents at end of period $ 582,188 $ 373,088 Restricted cash at end of period 38,779 54,865 Cash and cash equivalents and restricted cash at end of period $ 620,967 $ 427,953 Supplemental disclosures of cash flow information: Cash paid for interest $ 58,208 $ 57,170 Cash paid for income taxes $ 472 $ 1,197 Non-cash investing and financing activities: Building and improvements included in accounts payable and accrued expenses $ 53,956 $ 63,984 Write-off of fully depreciated assets 10,798 54,992 Derivative instruments at fair values included in accounts payable and accrued expenses 4,887 10,222 Conversion of limited partners' operating partnership units to ESRT partner's capital 7,766 23,903 Issuance of Series 2019 private perpetual preferred in exchange for common units — 789 The accompanying notes are an integral part of these consolidated financial statements 8 Empire State Realty OP, L.P. Notes to Condensed Consolidated Financial Statements (unaudited) 1. Description of Business and Organization As used in these condensed consolidated financial statements, unless the context otherwise requires, “we,” “us,” "our," and the "company,” mean Empire State Realty OP, L.P. and its consolidated subsidiaries. Empire State Realty OP, L.P. (the "Operating Partnership") is the entity through which Empire State Realty Trust, Inc. (“ESRT”), a self-administered and self-managed real estate investment trust ("REIT"), conducts all of its business and owns (either directly or through subsidiaries) substantially all of its assets. We own, manage, operate, acquire and reposition office and retail properties in Manhattan and the greater New York metropolitan area. As of September 30, 2021, our total portfolio contained 10.1 million rentable square feet of office and retail space. We owned 14 office properties (including three long-term ground leasehold interests) encompassing approximately 9.4 million rentable square feet of office space. Nine of these properties are located in the midtown Manhattan market and aggregate approximately 7.6 million rentable square feet of office space, including the Empire State Building. Our Manhattan office properties also contain an aggregate of approximately 0.5 million rentable square feet of retail space on their ground floor and/or contiguous levels. Our 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, we have entitled land at the Stamford Transportation Center in Stamford, Connecticut, adjacent to one of our office properties, that will support the development of an approximately 0.4 million rentable square foot office building and garage. As of September 30, 2021, our portfolio included four standalone retail properties located in Manhattan and two standalone retail properties located in the city center of Westport, Connecticut, encompassing approximately 0.2 million rentable square feet in the aggregate. We were organized as a Delaware limited partnership on November 28, 2011 and operations commenced upon completion of the initial public offering of ESRT’s Class A common stock and related formation transactions on October 7, 2013. ESRT, as the sole general partner in our company, has responsibility and discretion in the management and control of our company, and our limited partners, in such capacity, have no authority to transact business for, or participate in the management activities, of our company. As of September 30, 2021, ESRT owned approximately 60.8 % of our operating partnership units. 2. Summary of Significant Accounting Policies There have been no material changes to the summary of significant accounting policies included in the section entitled "Summary of Significant Accounting Policies" in our December 31, 2020 Annual Report on Form 10-K. Basis of Quarterly Presentation and Principles of Consolidation The accompanying unaudited condensed consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America (“GAAP”), for interim financial information, and with the rules and regulations of the Securities and Exchange Commission (the "SEC"). Accordingly, certain information and footnote disclosures required by GAAP for complete financial statements have been condensed or omitted in accordance with such rules and regulations. In the opinion of management, all adjustments and eliminations (including intercompany balances and transactions), consisting of normal recurring adjustments, considered necessary for the fair presentation of the financial statements have been included. The results of operations for the periods presented are not necessarily indicative of the results that may be expected for the corresponding full years. These financial statements should be read in conjunction with the financial statements and accompanying notes included in the financial statements for the year ended December 31, 2020 contained in our Annual Report on Form 10-K. We do not consider our business to be subject to material seasonal fluctuations, except that our observatory business is subject to tourism seasonality and currently impacted by the Coronavirus 19 ("COVID-19") pandemic. Historically prior to the outbreak of the COVID-19 pandemic, approximately 16.0 % to 18.0 % of our annual observatory revenue was realized in the first quarter, 26.0 % to 28.0 % was realized in the second quarter, 31.0 % to 33.0 % was realized in the third quarter and 23.0 % to 25.0 % was realized in the fourth quarter. 9 We consolidate entities in which we have a controlling financial interest. In determining whether we have a controlling financial interest in a partially owned entity and the requirement to consolidate the accounts of that entity, we consider factors such as ownership interest, board representation, management representation, authority to make decisions, and contractual and substantive participating rights of the partners/members. For variable interest entities ("VIE"), we consolidate the entity if we are deemed to have a variable interest in the entity and through that interest we are deemed the primary beneficiary. The primary beneficiary of a VIE is the entity that has (i) the power to direct the activities that most significantly impact the entity's economic performance and (ii) the obligation to absorb losses of the VIE or the right to receive benefits from the VIE that could be significant to the VIE. The primary beneficiary is required to consolidate the VIE. We had no VIEs as of September 30, 2021 and December 31, 2020. We will assess the accounting treatment for each investment we may have in the future. This assessment will include a review of each entity’s organizational agreement to determine which party has what rights and whether those rights are protective or participating. For all VIEs, we will review such agreements in order to determine which party has the power to direct the activities that most significantly impact the entity’s economic performance and benefit. In situations where we or our partner could approve, among other things, the annual budget, or leases that cover more than a nominal amount of space relative to the total rentable space at each property, we would not consolidate the investment as we consider these to be substantive participation rights that result in shared power of the activities that would most significantly impact the performance and benefit of such joint venture investment. A non-controlling interest in a consolidated subsidiary is defined as the portion of the equity (net assets) in a subsidiary not attributable, directly or indirectly, to a parent. Non-controlling interests are required to be presented as a separate component of equity in the condensed consolidated balance sheets and in the condensed consolidated statements of operations by requiring earnings and other comprehensive income to be attributed to controlling and non-controlling interests. Accounting Estimates The preparation of the condensed consolidated financial statements in accordance with GAAP requires management to use estimates and assumptions that in certain circumstances affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the reported revenues and expenses. Significant items subject to such estimates and assumptions include allocation of the purchase price of acquired real estate properties among tangible and intangible assets, determination of the useful life of real estate properties and other long-lived assets, valuation and impairment analysis of commercial real estate properties, right of use assets and other long-lived and indefinite lived assets, estimate of tenant expense reimbursements, valuation of the allowance for doubtful accounts, and valuation of derivative instruments, ground lease liabilities, senior unsecured notes, mortgage notes payable, unsecured term loan and revolving credit facilities, and equity based compensation. These estimates are prepared using management’s best judgment, after considering past, current, and expected events and economic conditions. Actual results could differ from those estimates. Recently Issued or Adopted Accounting Standards During April 2020, the Financial Accounting Standards Board ("FASB") staff issued a question and answer document (the “Lease Modification Q&A”) focused on the application of lease accounting guidance to lease concessions provided as a result of the COVID-19 pandemic. Under existing lease guidance, the entity would have to determine, on a lease by lease basis, if a lease concession was the result of a new arrangement reached with the tenant, which would be accounted for under the lease modification framework, or if a lease concession was under the enforceable rights and obligations that existed in the original lease, which would be accounted for outside the lease modification framework. The Lease Modification Q&A provides entities with the option to elect to account for lease concessions as though the enforceable rights and obligations existed in the original lease. This election is only available when total cash flows resulting from the modified lease are substantially similar to the cash flows in the original lease. During March 2020, the FASB issued Accounting Standards Update ("ASU") 2020-04, Reference Rate Reform (Topic 848). ASU 2020-04 contains practical expedients for reference rate reform related activities that impact debt, leases, derivatives and other contracts. The guidance in ASU 2020-04 is optional and may be elected over time as reference rate reform activities occur. During the first quarter 2020, we elected to apply the hedge accounting expedients related to probability and the assessments of effectiveness for future LIBOR-indexed cash flows to assume that the index upon which future hedged transactions will be based matches the index on the corresponding derivatives. Application of these expedients preserves the presentation of derivatives consistent with past presentation. We continue to evaluate the impact of the guidance and may apply other elections as applicable as additional changes in the market occur. 10 3. Deferred Costs, Acquired Lease Intangibles and Goodwill Deferred costs, net, consisted of the following as of September 30, 2021 and December 31, 2020 (amounts in thousands): September 30, 2021 December 31, 2020 Leasing costs $ 202,247 $ 203,905 Acquired in-place lease value and deferred leasing costs 161,191 181,336 Acquired above-market leases 35,330 40,398 398,768 425,639 Less: accumulated amortization ( 217,273 ) ( 223,918 ) Total deferred costs, net, excluding net deferred financing costs $ 181,495 $ 201,721 At September 30, 2021 and December 31, 2020, $ 7.8 million and $ 2.1 million, respectively, of net deferred financing costs associated with the unsecured revolving credit facility was included in deferred costs, net on the condensed consolidated balance sheets. Amortization expense related to deferred leasing costs and acquired deferred leasing costs was $ 10.4 million and $ 5.4 million for the three months ended September 30, 2021 and 2020, respectively, and $ 22.1 million and $ 17.7 million for the nine months ended September 30, 2021 and 2020, respectively. Amortization expense related to acquired lease intangibles was $ 5.0 million and $ 1.5 million for the three months ended September 30, 2021 and 2020, respectively, and $ 8.3 million and $ 5.9 million for the nine months ended September 30, 2021 and 2020, respectively. Amortizing acquired intangible assets and liabilities consisted of the following as of September 30, 2021 and December 31, 2020 (amounts in thousands): September 30, 2021 December 31, 2020 Acquired below-market ground leases $ 396,916 $ 396,916 Less: accumulated amortization ( 58,054 ) ( 52,181 ) Acquired below-market ground leases, net $ 338,862 $ 344,735 September 30, 2021 December 31, 2020 Acquired below-market leases $ ( 65,245 ) $ ( 78,451 ) Less: accumulated amortization 41,733 46,746 Acquired below-market leases, net $ ( 23,512 ) $ ( 31,705 ) Rental revenue related to the amortization of below-market leases, net of above-market leases, was $ 4.2 million and $ 0.7 million for the three months ended September 30, 2021 and 2020, respectively, and $ 5.6 million and $ 3.0 million for the nine months ended September 30, 2021 and 2020, respectively. As of September 30, 2021, we had goodwill of $ 491.5 million. Goodwill was allocated $ 227.5 million to the observatory reportable segment and $ 264.0 million to the real estate reportable segment. In compliance with the requirements of authorities, we closed the Empire State Building Observatory on March 16, 2020 due to the COVID-19 pandemic and it remained closed until the 86th floor observation deck was reopened on July 20, 2020. The 102nd observation deck was reopened on August 24, 2020. The closure of our Observatory and subsequent reopening under international, national, and local travel restrictions and quarantines caused us during the quarter to choose to perform an impairment test related to goodwill. We engaged a third-party valuation consulting firm to perform the valuation process. The analysis used a combination of the discounted cash flow method (a form of the income approach) utilizing Level 3 unobservable inputs and the guideline company method (a form of the market approach). Significant assumptions under the former included revenue and cost projections, weighted average cost of capital, long-term growth rate and income tax considerations while the latter included guideline company enterprise values, revenue multiples and control premium rates. Our methodology to review goodwill impairment, which included a significant amount of judgment and estimates, provided a reasonable basis to determine whether impairment had occurred. Based upon the results of the goodwill impairment test of the 11 standalone Observatory reporting unit, which is after the intercompany rent expense paid to the Real Estate reporting unit, we determined that the fair value of the Observatory reporting unit exceeded its carrying value by less than 15.0 %. Many of the factors employed in determining whether or not goodwill is impaired are outside of our control and it is reasonably likely that assumptions and estimates will change in future periods. We will continue to assess the impairment of the Observatory reporting unit goodwill going forward and that continued assessment may again utilize a third-party valuation consulting firm. 4. Debt Debt consisted of the following as of September 30, 2021 and December 31, 2020 (amounts in thousands): Principal Balance As of September 30, 2021 September 30, 2021 December 31, 2020 Stated Rate Effective Rate (1) Maturity Date (2) Mortgage debt collateralized by: Fixed rate mortgage debt Metro Center $ 85,627 $ 87,382 3.59 % 3.66 % 11/5/2024 10 Union Square 50,000 50,000 3.70 % 3.97 % 4/1/2026 1542 Third Avenue 30,000 30,000 4.29 % 4.53 % 5/1/2027 First Stamford Place (3) 180,000 180,000 4.28 % 4.74 % 7/1/2027 1010 Third Avenue and 77 West 55th Street 36,875 37,477 4.01 % 4.22 % 1/5/2028 250 West 57th Street 180,000 180,000 2.83 % 3.23 % 12/1/2030 10 Bank Street 31,329 32,025 4.23 % 4.37 % 6/1/2032 383 Main Avenue 30,000 30,000 4.44 % 4.55 % 6/30/2032 1333 Broadway 160,000 160,000 4.21 % 4.28 % 2/5/2033 Total mortgage debt 783,831 786,884 Senior unsecured notes: (4) Series A 100,000 100,000 3.93 % 3.96 % 3/27/2025 Series B 125,000 125,000 4.09 % 4.12 % 3/27/2027 Series C 125,000 125,000 4.18 % 4.21 % 3/27/2030 Series D 115,000 115,000 4.08 % 4.11 % 1/22/2028 Series E 160,000 160,000 4.26 % 4.27 % 3/22/2030 Series F 175,000 175,000 4.44 % 4.45 % 3/22/2033 Series G 100,000 100,000 3.61 % 4.89 % 3/17/2032 Series H 75,000 75,000 3.73 % 5.00 % 3/17/2035 Unsecured term loan facility (4) 215,000 215,000 LIBOR plus 1.20 % 3.57 % 3/19/2025 Unsecured revolving credit facility (4) — — LIBOR plus 1.30 % — 3/31/2025 Unsecured term loan facility (4) 175,000 175,000 LIBOR plus 1.50 % 3.67 % 12/31/2026 Total principal 2,148,831 2,151,884 Deferred financing costs, net ( 13,491 ) ( 15,235 ) Total $ 2,135,340 $ 2,136,649 ______________ (1) The effective rate is the yield as of September 30, 2021 and includes the stated interest rate, deferred financing cost amortization and interest associated with variable to fixed interest rate swap agreements. (2) Pre-payment is generally allowed for each loan upon payment of a customary pre-payment penalty. (3) Represents a $ 164 million mortgage loan bearing interest at 4.09 % and a $ 16 million loan bearing interest at 6.25 %. (4) At September 30, 2021, we were in compliance with all debt covenants. 12 Principal Payments Aggregate required principal payments at September 30, 2021 are as follows (amounts in thousands): Year Amortization Maturities Total 2021 $ 1,037 $ — $ 1,037 2022 5,628 — 5,628 2023 7,876 — 7,876 2024 7,958 77,675 85,633 2025 5,826 315,000 320,826 Thereafter 20,084 1,707,747 1,727,831 Total $ 48,409 $ 2,100,422 $ 2,148,831 Deferred Financing Costs Deferred financing costs, net, consisted of the following at September 30, 2021 and December 31, 2020 (amounts in thousands): September 30, 2021 December 31, 2020 Financing costs $ 42,710 $ 35,365 Less: accumulated amortization ( 21,388 ) ( 17,998 ) Total deferred financing costs, net $ 21,322 $ 17,367 Amortization expense related to deferred financing costs was $ 1.1 million and $ 1.0 million for the three months ended September 30, 2021 and 2020, respectively, and $ 3.4 million and $ 3.0 million for the nine months ended September 30, 2021 and 2020, respectively. Unsecured Revolving Credit and Term Loan Facilities As described more fully in our Form 10-Q for the quarterly period ended March 31, 2021 (the "Q1 2021 10-Q"), in Q1 2021, we entered into an amended senior unsecured credit facility (the "Credit Facility") with Bank of America, N.A., as administrative agent and the other lenders party thereto. The Credit Facility is in the initial maximum principal amount of up to $ 1.065 billion, which consists of $ 850.0 million revolving credit facility that matures on March 31, 2025, and a $ 215.0 million term loan facility that matures on March 19, 2025. As of September 30, 2021, we had no borrowings under the revolving credit facility and $ 215.0 million under the term loan facility. Additionally, as described more fully in the Q1 2021 10-Q, we have outstanding a senior unsecured term loan facility (the "Term Loan Facility") that we entered into on March 19, 2020 with Wells Fargo Bank, National Association, as administrative agent, and the other lenders party thereto. The Term loan Facility is in the original principal amount of $ 175.0 million and matures on December 31, 2026. As of September 30, 2021, our borrowings amounted to $ 175.0 million under the Term Loan Facility. The terms of both the Credit Facility and the Term Loan Facility include customary covenants, including limitations on liens, investment, distributions, debt, fundamental changes, and transactions with affiliates and require certain customary financial reports. Both facilities also require compliance with financial ratios including a maximum leverage ratio, a maximum secured leverage ratio, a minimum fixed charge coverage ratio, a minimum unencumbered interest coverage ratio, and a maximum unsecured leverage ratio. The agreements governing both facilities also contain customary events of default (subject in certain cases to specified cure periods), including but not limited to non-payment, breach of covenants, representations or warranties, cross defaults, bankruptcy or other insolvency events, judgments, ERISA events, invalidity of loan documents, loss of real estate investment trust qualification, and occurrence of a change of control. As of September 30, 2021, we were in compliance with these covenants. 13 Senior Unsecured Notes The terms of the senior unsecured notes include customary covenants, including limitations on liens, investment, distributions, debt, fundamental changes, and transactions with affiliates and require certain customary financial reports. It also requires compliance with financial ratios including a maximum leverage ratio, a maximum secured leverage ratio, a minimum fixed charge coverage ratio, a minimum unencumbered interest coverage ratio, and a maximum unsecured leverage ratio. The agreements also contain customary events of default (subject in certain cases to specified cure periods), including but not limited to non-payment, breach of covenants, representations or warranties, cross defaults, bankruptcy or other insolvency events, judgments, ERISA events, the occurrence of certain change of control transactions and loss of real estate investment trust qualification. As of September 30, 2021, we were in compliance with these covenants. 5. Accounts Payable and Accrued Expenses Accounts payable and accrued expenses consisted of the following as of September 30, 2021 and December 31, 2020 (amounts in thousands): September 30, 2021 December 31, 2020 Accrued capital expenditures $ 53,956 $ 58,057 Accounts payable and accrued expenses 32,101 32,309 Interest rate swap agreement liability 4,887 8,849 Accrued interest payable 3,397 3,219 Due (from) to affiliated companies ( 125 ) 769 Total accounts payable and accrued expenses $ 94,216 $ 103,203 6. Financial Instruments and Fair Values Derivative Financial Instruments We use derivative financial instruments primarily to manage interest rate risk and such derivatives are not considered speculative. These derivative instruments are typically in the form of interest rate swap and forward agreements and the primary objective is to minimize interest rate risks associated with investing and financing activities. The counterparties of these arrangements are major financial institutions with which we may also have other financial relationships. We are exposed to credit risk in the event of non-performance by these counterparties; however, we currently do not anticipate that any of the counterparties will fail to meet their obligations. We have agreements with our derivative counterparties that contain a provision where if we either default or are capable of being declared in default on any of our indebtedness, then we could also be declared in default on our derivative obligations. As of September 30, 2021, the fair value of the derivative in a net liability position, which includes accrued interest but excludes any adjustment for nonperformance risk, related to the agreement was $ 4.9 million. If we had breached any of these provisions at September 30, 2021, we could have been required to settle our obligation under the agreement at its termination value of $ 4.9 million. As of September 30, 2021 and December 31, 2020, we had an interest rate LIBOR swap with an aggregate notional value of $ 265.0 million. The notional value does not represent exposure to credit, interest rate or market risks. As of September 30, 2021 and December 31, 2020, the fair value of our derivative instrument amounted to $( 4.9 ) million and $( 8.8 ) million, respectively, which is included in accounts payable and accrued expenses on the condensed consolidated balance sheets. This interest rate swap has been designated as a cash flow hedge and hedges the variability in future cash flows associated with our existing variable-rate term loan facilities. As of September 30, 2021 and 2020, our cash flow hedge is deemed highly effective and a net unrealized gain (loss) of $ 2.8 million and $ 2.9 million for the three months ended September 30, 2021 and 2020, respectively, and a net unrealized gain (loss) of $ 8.5 million and $( 13.4 ) million for the nine months ended September 30, 2021 and 2020, respectively, relating to both active and terminated hedges of interest rate risk, are reflected in the condensed consolidated statements of comprehensive income (loss). Amounts reported in accumulated other comprehensive loss related to derivatives will be reclassified to interest expense as interest payments are made on the debt. We estimate that $( 11.0 ) million net loss of the current balance held in accumulated other comprehensive loss will be reclassified into interest expense within the next 12 months. 14 The table below summarizes the terms of agreements and the fair values of our derivative financial instruments as of September 30, 2021 and December 31, 2020 (dollar amounts in thousands): September 30, 2021 December 31, 2020 Derivative Notional Amount Receive Rate Pay Rate Effective Date Expiration Date Asset Liability Asset Liability Interest rate swap $ 265,000 1 Month LIBOR 2.1485 % August 31, 2017 August 24, 2022 $ — $ ( 4,887 ) $ — $ ( 8,849 ) The table below shows the effect of our derivative financial instruments designated as cash flow hedges on accumulated other comprehensive income (loss) for the three and nine months ended September 30, 2021 and 2020 (amounts in thousands): Three Months Ended Nine Months Ended Effects of Cash Flow Hedges September 30, 2021 September 30, 2020 September 30, 2021 September 30, 2020 Amount of gain (loss) recognized in other comprehensive income (loss) $ ( 103 ) $ 64 $ ( 139 ) $ ( 19,340 ) Amount of loss reclassified from accumulated other comprehensive loss into interest expense ( 2,920 ) ( 2,873 ) ( 8,687 ) ( 5,986 ) The table below shows the effect of our derivative financial instruments designated as cash flow hedges on the condensed consolidated statements of operations for the three and nine months ended September 30, 2021 and 2020 (amounts in thousands): Three Months Ended Nine Months Ended Effects of Cash Flow Hedges September 30, 2021 September 30, 2020 September 30, 2021 September 30, 2020 Total interest expense presented in the condensed consolidated statements of operations in which the effects of cash flow hedges are recorded $ ( 23,577 ) $ ( 23,360 ) $ ( 70,553 ) $ ( 66,906 ) Amount of loss reclassified from accumulated other comprehensive loss into interest expense ( 2,920 ) ( 2,873 ) ( 8,687 ) ( 5,986 ) Fair Valuation The estimated fair values at September 30, 2021 and December 31, 2020 were determined by management, using available market information and appropriate valuation methodologies. Considerable judgment is necessary to interpret market data and develop estimated fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts we could realize on disposition of the financial instruments. The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated fair value amounts. The fair value of derivative instruments is determined using widely accepted valuation techniques, including discounted cash flow analysis on the expected cash flows of each derivative. Although the majority of the inputs used to value our derivatives fall within Level 2 of the fair value hierarchy, the credit valuation adjustments associated with our derivatives utilize Level 3 inputs, such as estimates of current credit spreads to evaluate the likelihood of default by ourselves and our counterparties. The impact of such credit valuation adjustments, determined based on the fair value of each individual contract, was not significant to the overall valuation. As a result, all our derivatives were classified as Level 2 of the fair value hierarchy. The fair value of our mortgage notes payable, senior unsecured notes - Series A, B, C, D, E, F, G and H - unsecured term loan facilities and unsecured revolving credit facility which are determined using Level 3 inputs, are estimated by discounting the future cash flows using current interest rates at which similar borrowings could be made by us. The following tables summarize the carrying and estimated fair values of our financial instruments as of September 30, 2021 and December 31, 2020 (amounts in thousands): 15 September 30, 2021 Estimated Fair Value Carrying Value Total Level 1 Level 2 Level 3 Interest rate swap included in accounts payable and accrued expenses $ 4,887 $ 4,887 $ — $ 4,887 $ — Mortgage notes payable 773,925 790,407 — — 790,407 Senior unsecured notes - Series A, B, C, D, E, F, G and H 973,320 999,220 — — 999,220 Unsecured term loan facilities 388,095 390,000 — — 390,000 December 31, 2020 Estimated Fair Value Carrying Value Total Level 1 Level 2 Level 3 Interest rate swap included in accounts payable and accrued expenses $ 8,849 $ 8,849 $ — $ 8,849 $ — Mortgage notes payable 775,929 808,294 — — 808,294 Senior unsecured notes - Series A, B, C, D, E, F, G and H 973,159 1,039,857 — — 1,039,857 Unsecured term loan facilities 387,561 390,000 — — 390,000 Disclosure about the fair value of financial instruments is based on pertinent information available to us as of September 30, 2021 and December 31, 2020. Although we are not aware of any factors that would significantly affect the reasonable fair value amounts, such amounts have not been comprehensively revalued for purposes of these financial statements since that date and current estimates of fair value may differ significantly from the amounts presented herein. 7. Leases Lessor We lease various spaces to tenants over terms ranging from one to 21 years. Certain leases have renewal options for additional terms. The leases provide for base monthly rentals and reimbursements for real estate taxes, escalations linked to the consumer price index or common area maintenance known as operating expense escalation. Operating expense reimbursements are reflected in our September 30, 2021 and 2020 condensed consolidated statements of operations as rental revenue. Rental revenue includes fixed and variable payments. Fixed payments primarily relate to base rent and variable payments primarily relate to tenant expense reimbursements for certain property operating costs. The components of rental revenue for the three and nine months ended September 30, 2021 and 2020 are as follows (amounts in thousands): Three Months Ended Nine Months Ended Rental revenue September 30, 2021 September 30, 2020 September 30, 2021 September 30, 2020 Fixed payments $ 124,764 $ 122,976 $ 374,968 $ 375,882 Variable payments 14,794 16,933 45,618 50,139 Total rental revenue $ 139,558 $ 139,909 $ 420,586 $ 426,021 As of September 30, 2021, we were entitled to the following future contractual minimum lease payments (excluding operating expense reimbursements) on non-cancellable operating leases to be received which expire on various dates through 2039 (amounts in thousands): 16 Remainder of 2021 $ 128,461 2022 489,237 2023 479,784 2024 443,878 2025 404,477 Thereafter 1,956,833 $ 3,902,670 The above future minimum lease payments exclude tenant recoveries and the net accretion of above and below market lease intangibles. Some leases are subject to termination options generally upon payment of a termination fee. The preceding table is prepared assuming such options are not exercised. Lessee We determine if an arrangement is a lease at inception. Our operating lease agreements relate to three ground lease assets and are reflected in right-of-use assets of $ 28.9 million and lease liabilities of $ 28.9 million in our consolidated balance sheets as of September 30, 2021. Right-of-use assets represent our right to use an underlying asset for the lease term and lease liabilities represent our obligation to make lease payments arising from the lease. Right-of-use assets and liabilities are recognized at the commencement date based on the present value of lease payments over the lease term. Variable lease payments are excluded from the right-of-use assets and lease liabilities and are recognized in the period in which the obligation for those payments is incurred. The ground leases are due to expire between the years 2050 and 2077, inclusive of extension options, and have no variable payments or residual value guarantees. As our leases do not provide an implicit rate, we determined our incremental borrowing rate based on information available at the date of adoption of ASU No. 2016-02, Leases (Topic 842), in determining the present value of lease payments. The weighted average incremental borrowing rate used to calculate the right-of-use assets and lease liabilities as of September 30, 2021 was 4.5 %. Rent expense for lease payments related to our operating leases is recognized on a straight-line basis over the non-cancellable term of the leases. The weighted average remaining lease term as of September 30, 2021 was 48.6 years. As of September 30, 2021, the following table summarizes our future minimum lease payments discounted by our incremental borrowing rates to calculate the lease liabilities of our leases (amounts in thousands): Remainder of 2021 $ 380 2022 1,518 2023 1,518 2024 1,518 2025 1,518 Thereafter 65,262 Total undiscounted cash flows 71,714 Present value discount ( 42,769 ) Ground lease liabilities $ 28,945 8. Commitments and Contingencies Legal Proceedings Except as described below, as of September 30, 2021, we were not involved in any material litigation, nor, to our knowledge, was any material litigation threatened against us or our properties, other than routine litigation arising in the ordinary course of business such as disputes with tenants. We believe that the costs and related liabilities, if any, which may result from such actions will not materially affect our condensed consolidated financial position, operating results or liquidity. As previously disclosed, in October 2014, 12 former investors (the "Claimants") in Empire State Building Associates L.L.C. (“ESBA”), which prior to the initial public offering of our company (the "Offering"), owned the fee title to the Empire 17 State Building, filed an arbitration with the American Arbitration Association against Peter L. Malkin, Anthony E. Malkin, Thomas N. Keltner, Jr., and our subsidiary ESRT MH Holdings LLC, the former supervisor of ESBA (the "Respondents"). The statement of claim (also filed later in federal court in New York for the expressed purpose of tolling the statute of limitations) alleges breach of fiduciary duty and related claims in connection with the Offering and formation transactions and seeks monetary damages and declaratory relief. Claimants had opted out of a prior class action bringing similar claims that was settled with court approval. Respondents filed an answer and counterclaims. In March 2015, the federal court action was stayed on consent of all parties pending the arbitration. Arbitration hearings started in May 2016 and concluded in August 2018. On August 26, 2020, the arbitration panel issued an award that denied all Claimants’ claims with one exception, on which it awarded Claimants approximately $ 1.2 million, inclusive of seven years of interest through October 2, 2020. This amount was recorded as an IPO litigation expense in the consolidated statement of operations for the year ended December 31, 2020. Respondents believe that such award in favor of the Claimants is entirely without merit and sought to vacate that portion of the award. On September 27, 2021, the court denied Respondents' motion to vacate and entered judgement in the aforementioned amount, inclusive of accumulated interest. Respondents are considering their options with respect to that ruling. In addition, certain of the Claimants in the federal court action sought to pursue claims in that case against Respondents. Respondents believe that any such claims are meritless. The magistrate judge assigned to the action has issued a Report and Recommendation rejecting Claimants’ claims; the district judge will decide whether to adopt the Report and Recommendation. Pursuant to indemnification agreements which were made with our directors, executive officers and chairman emeritus as part of our formation transactions, Anthony E. Malkin, Peter L. Malkin and Thomas N. Keltner, Jr. have defense and indemnity rights from us with respect to this arbitration. Unfunded Capital Expenditures At September 30, 2021, we estimate that we will incur approximately $ 85.2 million of capital expenditures (including tenant improvements and leasing commissions) on our properties pursuant to existing lease agreements. We expect to fund these capital expenditures with operating cash flow, additional property level mortgage financings, our unsecured credit facility, cash on hand and other borrowings. Future property acquisitions may require substantial capital investments for refurbishment and leasing costs. We expect that these financing requirements will be met in a similar fashion. Concentration of Credit Risk Financial instruments that subject us to credit risk consist primarily of cash and cash equivalents, restricted cash, short-term investments, tenant and other receivables and deferred rent receivables. At September 30, 2021, we held on deposit at various major financial institutions cash and cash equivalents and restricted cash balances in excess of amounts insured by the Federal Deposit Insurance Corporation. Asset Retirement Obligations We are required to accrue costs that we are legally obligated to incur on retirement of our properties which result from acquisition, construction, development and/or normal operation of such properties. Retirement includes sale, abandonment or disposal of a property. Under that standard, a conditional asset retirement obligation represents a legal obligation to perform an asset retirement activity in which the timing and/or method of settlement is conditional on a future event that may or may not be within a company’s control and a liability for a conditional asset retirement obligation must be recorded if the fair value of the obligation can be reasonably estimated. Environmental site assessments and investigations have identified asbestos or asbestos-containing building materials in certain of our properties. As of September 30, 2021, management has no plans to remove or alter these properties in a manner that would trigger federal and other applicable regulations for asbestos removal, and accordingly, the obligations to remove the asbestos or asbestos-containing building materials from these properties have indeterminable settlement dates. As such, we are unable to reasonably estimate the fair value of the associated conditional asset retirement obligation. However, ongoing asbestos abatement, maintenance programs and other required documentation are carried out as required and related costs are expensed as incurred. Other Environmental Matters Certain of our properties have been inspected for soil contamination due to pollutants, which may have occurred prior to our ownership of these properties or subsequently in connection with its development and/or its use. Required remediation to such properties has been completed, and as of September 30, 2021, management believes that there are no obligations related to environmental remediation other than maintaining the affected sites in conformity with the relevant authority’s mandates and filing the required documents. All such maintenance costs are expensed as incurred. We expect that resolution of the 18 environmental matters relating to the above will not have a material impact on our business, assets, consolidated financial condition, results of operations or liquidity. However, we cannot be certain that we have identified all environmental liabilities at our properties, that all necessary remediation actions have been or will be undertaken at our properties or that we will be indemnified, in full or at all, in the event that such environmental liabilities arise. Insurance Coverage We carry insurance coverage on our properties of types and in amounts with deductibles that we believe are in line with coverage customarily obtained by owners of similar properties. 9. Capital As of September 30, 2021, there were 285,104,512 common stock and operating partnership units outstanding, of which 173,292,301 , or 60.8 %, were owned by ESRT and 111,812,211 , or 39.2 %, were owned by other partners, including ESRT directors, members of senior management and other employees. On May 16, 2019, the Empire State Realty Trust, Inc. Empire State Realty OP, L.P. 2019 Equity Incentive Plan (“2019 Plan”) was approved by our shareholders. The 2019 Plan provides for grants to directors, employees and consultants of ESRT and the Operating Partnership, including options, restricted stock, restricted stock units, stock appreciation rights, performance awards, dividend equivalents and other equity-based awards. An aggregate of approximately 11.0 million shares of ESRT common stock is authorized for issuance under awards granted pursuant to the 2019 Plan. We will not issue any new equity awards under the First Amended and Restated Empire State Realty Trust, Inc. and Empire State Realty OP, L.P. 2013 Equity Incentive Plan ("2013 Plan", and collectively with the 2019 Plan, "the Plans"). The shares of ESRT Class A common stock underlying any awards under the 2019 Plan and the 2013 Plan that are forfeited, canceled or otherwise terminated, other than by exercise, will be added back to the shares of ESRT Class A common stock available for issuance under the 2019 Plan. Shares tendered or held back upon exercise of a stock option or settlement of an award under the 2019 Plan or the 2013 Plan to cover the exercise price or tax withholding and shares subject to a stock appreciation right that are not issued in connection with the stock settlement of the stock appreciation right upon exercise thereof, will not be added back to the shares of ESRT Class A common stock available for issuance under the 2019 Plan. In addition, shares of ESRT Class A common stock repurchased on the open market will not be added back to the shares of ESRT Class A common stock available for issuance under the 2019 Plan. Long-term incentive plan ("LTIP") units are a special class of partnership interests. Each LTIP unit awarded will be deemed equivalent to an award of one share of ESRT stock under the Plans, reducing the availability for other equity awards on a one -for-one basis. The vesting period for LTIP units, if any, will be determined at the time of issuance. Under the terms of the LTIP units, we will revalue for tax purposes its assets upon the occurrence of certain specified events, and any increase in valuation from the time of grant until such event will be allocated first to the holders of LTIP units to equalize the capital accounts of such holders with the capital accounts of unitholders. Subject to any agreed upon exceptions, once vested and having achieved parity with unitholders, LTIP units are convertible into Series PR operating partnership units on a one -for-one basis. LTIP units subject to time-based vesting, whether vested or not, receive the same per unit distributions as operating partnership units, which equal per share dividends (both regular and special) on our common stock. LTIP units subject to market-based vesting receive 10 % of such distributions currently, unless and until such LTIP units are earned based on performance, at which time they will receive the accrued and unpaid 90 % and will commence receiving 100 % of such distributions thereafter. Stock and Publicly Traded Operating Partnership Unit Repurchase Program ESRT's Board of Directors reauthorized the repurchase of up to $ 500 million of ESRT Class A common stock and the Operating Partnership’s Series ES, Series 250 and Series 60 operating partnership units through December 31, 2021. Under the program, ESRT may purchase ESRT Class A common stock and we may purchase our Series ES, Series 250 and Series 60 operating partnership units in accordance with applicable securities laws from time to time in the open market or in privately negotiated transactions. The timing, manner, price and amount of any repurchases will be determined by ESRT and us at our discretion and will be subject to stock price, availability, trading volume and general market conditions. The authorization does not obligate ESRT or us to acquire any particular amount of securities, and the program may be suspended or discontinued at ESRT and our discretion without prior notice. 19 The following table summarizes ESRT's purchases of equity securities in each of the three months ended September 30, 2021: Period Total Number of Shares Purchased Weighted Average Price Paid per Share Total Number of Shares Purchased as Part of Publicly Announced Plan Maximum Approximate Dollar Value Available for Future Purchase (in thousands) July 2021 — $ — — $ 496,467 August 2021 403,831 $ 10.54 403,831 $ 492,212 September 2021 221,771 $ 10.17 221,771 $ 489,958 Private Perpetual Preferred Units As of September 30, 2021, there were 4,664,038 Series 2019 Preferred Units ("Series 2019 Preferred Units") and 1,560,360 Series 2014 Private Perpetual Preferred Units ("Series 2014 Preferred Units"). The Series 2019 Preferred Units have a liquidation preference of $ 13.52 per unit and are entitled to receive cumulative preferential annual cash distributions of $ 0.70 per unit payable in arrears on a quarterly basis. The Series 2019 Preferred Units are not redeemable at the option of the holders and are redeemable at our option only in the case of specific defined events. The Series 2014 Preferred Units which have a liquidation preference of $ 16.62 per unit and are entitled to receive cumulative preferential annual cash distributions of $ 0.60 per unit payable in arrears on a quarterly basis. The Series 2014 Preferred Units are not redeemable at the option of the holders and are redeemable at our option only in the case of specific defined events. Distributions Total distributions paid to OP unitholders were $ 10.0 million and $ 19.4 million for the three and nine months ended September 30, 2021, respectively, and $ 0.0 million and $ 62.2 million for the three and nine months ended September 30, 2020, respectively. Total distributions paid to preferred unitholders were $ 1.1 million and $ 3.2 million for the three and nine months ended September 30, 2021, respectively, and $ 1.1 million and $ 3.1 million for the three and nine months ended September 30, 2020, respectively. Incentive and Share-Based Compensation The Plans provide for grants to directors, employees and consultants consisting of stock options, restricted stock, dividend equivalents, stock payments, performance shares, LTIP units, stock appreciation rights and other incentive awards. An aggregate of 11.0 million shares of ESRT common stock is authorized for issuance under awards granted pursuant to the 2019 Plan, and as of September 30, 2021, 7.7 million shares of ESRT common stock remain available for future issuance. In August 2021, we granted LTIP units under the 2019 Plan to Christina Chiu, our Executive Vice President and Chief Financial Officer, consisting of 8,772 LTIP units that are subject to time-based vesting and 26,930 LTIP units that are subject to market-based vesting, with fair market values of $ 0.075 million for the time-based vesting awards and $ 0.15 million for the market-based vesting awards. The awards subject to time-based vesting vest ratably over four years from January 1, 2021, subject generally to her continued employment. The first installment vests on January 1, 2022 and the remainder will vest thereafter in three equal annual installments. The vesting of the LTIP units subject to market-based vesting is based on the achievement of relative total stockholder return hurdles over a three-year performance period, commencing on January 1, 2021. Following the completion of the three-year performance period, our compensation and human capital committee will determine the number of LTIP units to which she is entitled based on our performance relative to the performance hurdles set forth in the LTIP unit award agreement entered into in connection with the award grant. These units then vest in two installments, with the first installment vesting on January 1, 2024 and the second installment vesting on January 1, 2025, subject generally to her continued employment on those dates. Share-based compensation for time-based equity awards is measured at the fair value of the award on the date of grant and recognized as an expense on a straight-line basis over the shorter of (i) the stated vesting period, which is generally three , four or five years , or (ii) the period from the date of grant to the date the employee becomes retirement eligible, which may occur upon grant. An employee is retirement eligible when the employee attains the (i) age of 65 and (ii) the date on which the employee has first completed ten years of continuous service with us or our affiliates. During the second quarter of 2020, the Board approved changing the definition of retirement age from 60 to 65 starting with the grant awards issued in March 2020 under the 2019 Plan. Share-based compensation for market-based equity awards is measured at the fair value of the award on 20 the date of grant and recognized as an expense on a straight-line basis over three or four years depending on retirement eligibility. For the market-based LTIP units, the fair value of the awards was estimated using a Monte Carlo Simulation model and discounted for the restriction period during which the LTIP units cannot be redeemed or transferred and the uncertainty regarding if, and when, the book capital account of the LTIP units will equal that of the common units. Our stock price, along with the prices of the comparative indexes, is assumed to follow the Geometric Brownian Motion Process. Geometric Brownian Motion is a common assumption when modeling in financial markets, as it allows the modeled quantity (in this case the stock price) to vary randomly from its current value and take any value greater than zero. The volatilities of the returns on our stock price and the comparative indexes were estimated based on implied volatilities and historical volatilities using a six-year look-back period. The expected growth rate of the stock prices over the performance period is determined with consideration of the risk-free rate as of the grant date. For LTIP unit awards that are time-based, the fair value of the awards was estimated based on the fair value of our stock at the grant date discounted for the restriction period during which the LTIP units cannot be redeemed or transferred and the uncertainty regarding if, and when, the book capital account of the LTIP units will equal that of the common units. For restricted stock awards, we estimate the stock compensation expense based on the fair value of the stock at the grant date. LTIP units and ESRT restricted stock issued during the nine months ended September 30, 2021 were valued at $ 20.0 million. The weighted average per unit or share fair value was $ 8.52 for grants issued in 2021. The per unit or share granted in 2021 was estimated on the respective dates of grant using the following assumptions: an expected life from 2.0 to 5.3 years, a dividend rate of 2.60 %, a risk-free interest rate from 0.12 % to 0.32 %, and an expected price volatility from 36.0 % to 53.0 %. No other stock options, dividend equivalents, or stock appreciation rights were issued or outstanding in 2021. The following is a summary of ESRT restricted stock and LTIP unit activity for the nine months ended September 30, 2021: Restricted Stock LTIP Units Weighted Average Grant Fair Value Unvested balance at December 31, 2020 217,700 7,750,284 $ 6.94 Vested ( 71,944 ) ( 992,776 ) 11.53 Granted 123,359 2,230,579 8.52 Forfeited or unearned ( 41,950 ) ( 1,449,361 ) 5.67 Unvested balance at September 30, 2021 227,165 7,538,726 $ 7.03 The LTIP unit and ESRT restricted stock awards are treated for accounting purposes as immediately vested upon the later of (i) the date the grantee attains the age of 60 or 65 , as applicable, and (ii) the date on which grantee has first completed ten years of continuous service with our company or its affiliates. For award agreements that qualify, we recognize noncash compensation expense on the grant date for the time-based awards and ratably over the vesting period for the market-based awards, and accordingly, we recognized $ 0.7 million and $ 2.1 million for the three and nine months ended September 30, 2021, respectively, and $ 0.4 million and $ 2.3 million for the three and nine months ended September 30, 2020, respectively. Unrecognized compensation expense was $ 2.3 million at September 30, 2021, which will be recognized over a weighted average period of 2.5 years. For the remainder of the LTIP unit and ESRT restricted stock awards, we recognize noncash compensation expense ratably over the vesting period, and accordingly, we recognized noncash compensation expense of $ 4.7 million and $ 13.3 million for the three and nine months ended September 30, 2021, respectively, and $ 5.1 million and $ 17.9 million for the three and nine months ended September 30, 2020, respectively. Unrecognized compensation expense was $ 28.1 million at September 30, 2021, which will be recognized over a weighted average period of 2.4 years. 21 Earnings Per Unit Earnings per unit for the three and nine months ended September 30, 2021 and 2020 is computed as follows (amounts in thousands, except per share amounts): Three Months Ended Nine Months Ended September 30, 2021 September 30, 2020 September 30, 2021 September 30, 2020 Numerator: Net loss $ ( 10,183 ) $ ( 12,269 ) $ ( 8,963 ) $ ( 23,599 ) Private perpetual preferred unit distributions ( 1,050 ) ( 1,050 ) ( 3,151 ) ( 3,147 ) Earnings allocated to unvested units ( 114 ) ( 342 ) ( 227 ) ( 985 ) Net loss attributable to common unitholders – basic and diluted $ ( 11,347 ) $ ( 13,661 ) $ ( 12,341 ) $ ( 27,731 ) Denominator: Weighted average units outstanding – basic 277,716 280,940 277,829 285,640 Effect of dilutive securities: Stock-based compensation plans — — — — Weighted average units outstanding –- diluted 277,716 280,940 277,829 285,640 Earnings per share: Basic $ ( 0.04 ) $ ( 0.05 ) $ ( 0.04 ) $ ( 0.10 ) Diluted $ ( 0.04 ) $ ( 0.05 ) $ ( 0.04 ) $ ( 0.10 ) There were 1,084,264 and 997,811 antidilutive shares and LTIP units for the three and nine months ended September 30, 2021, respectively, and zero and 169,848 antidilutive shares and LTIP units for the three and nine months ended September 30, 2020, respectively . 10. Related Party Transactions Supervisory Fee Revenue We earned supervisory fees from entities affiliated with Anthony E. Malkin, our Chairman and Chief Executive Officer, of $ 0.3 million and $ 0.2 million for the three months ended September 30, 2021 and 2020, respectively, and $ 0.8 million and $ 0.7 million for the nine months ended September 30, 2021 and 2020, respectively. These fees are included within third-party management and other fees. Property Management Fee Revenue We earned property management fees from entities affiliated with Anthony E. Malkin of $ 0.1 million and $ 0.1 million for the three months ended September 30, 2021 and 2020, respectively, and $ 0.2 million and $ 0.2 million for the nine months ended September 30, 2021 and 2020, respectively. These fees are included within third-party management and other fees. Other We receive rent generally at the market rental rate for 5,447 square feet of leased space from entities affiliated with Anthony E. Malkin at one of our properties. Under the lease, the tenant has the right to cancel such lease without special payment on 90 days’ notice. We also have a shared use agreement with such tenant, to occupy a portion of the leased premises as the office location for Peter L. Malkin, our chairman emeritus and employee, utilizing approximately 15 % of the space, for which we pay to such tenant an allocable pro rata share of the cost. We also have agreements with these entities and excluded properties and businesses to provide them with general computer-related support services. Total revenue aggregated $ 0.1 million and $ 0.1 million for the three months ended September 30, 2021 and 2020, respectively, and $ 0.2 million and $ 0.2 million for the nine months ended September 30, 2021 and 2020, respectively. 22 11. Segment Reporting We have identified two reportable segments: (1) real estate and (2) observatory. Our real estate segment includes all activities related to the ownership, management, operation, acquisition, redevelopment, repositioning and disposition of our traditional real estate assets. Our observatory segment includes the operation of the 86th and 102nd floor observatories at the Empire State Building. These two lines of businesses are managed separately because each business requires different support infrastructures, provides different services and has dissimilar economic characteristics such as investments needed, stream of revenues and marketing strategies. We account for intersegment sales and rent as if the sales or rent were to third parties, that is, at current market prices. The following tables provide components of segment net income (loss) for each segment for the three and nine months ended September 30, 2021 and 2020 (amounts in thousands): Three Months Ended September 30, 2021 Real Estate Observatory Intersegment Elimination Total Revenues: Rental revenue $ 139,558 $ — $ — $ 139,558 Intercompany rental revenue 5,310 — ( 5,310 ) — Observatory revenue — 12,796 — 12,796 Lease termination fees 11,321 — — 11,321 Third-party management and other fees 314 — — 314 Other revenue and fees 921 138 — 1,059 Total revenues 157,424 12,934 ( 5,310 ) 165,048 Operating expenses: Property operating expenses 33,357 — — 33,357 Intercompany rent expense — 5,310 ( 5,310 ) — Ground rent expense 2,331 — — 2,331 General and administrative expenses 14,427 — — 14,427 Observatory expenses — 6,370 — 6,370 Real estate taxes 29,566 — — 29,566 Depreciation and amortization 65,759 35 — 65,794 Total operating expenses 145,440 11,715 ( 5,310 ) 151,845 Total operating income 11,984 1,219 — 13,203 Other income (expense): Interest income 211 — — 211 Interest expense ( 23,577 ) — — ( 23,577 ) Income (loss) before income taxes ( 11,382 ) 1,219 — ( 10,163 ) Income tax (expense) benefit 53 ( 73 ) — ( 20 ) Net income (loss) $ ( 11,329 ) $ 1,146 $ — $ ( 10,183 ) Segment assets $ 3,870,142 $ 242,021 $ — $ 4,112,163 Expenditures for segment assets $ 21,349 $ — $ — $ 21,349 23 Three Months Ended September 30, 2020 Real Estate Observatory Intersegment Elimination Total Revenues: Rental revenue $ 139,909 $ — $ — $ 139,909 Intercompany rental revenue ( 2,233 ) — 2,233 — Observatory revenue — 4,419 — 4,419 Lease termination fees 331 — — 331 Third-party management and other fees 283 — — 283 Other revenue and fees 1,633 — — 1,633 Total revenues 139,923 4,419 2,233 146,575 Operating expenses: Property operating expenses 33,836 — — 33,836 Intercompany rent expense — ( 2,233 ) 2,233 — Ground rent expense 2,331 — — 2,331 General and administrative expenses 14,517 — — 14,517 Observatory expenses — 5,931 — 5,931 Real estate taxes 31,196 — — 31,196 Impairment charges 2,103 — — 2,103 Depreciation and amortization 44,679 54 — 44,733 Total operating expenses 128,662 3,752 2,233 134,647 Total operating income 11,261 667 — 11,928 Other income (expense): Interest income 360 6 — 366 Interest expense ( 23,360 ) — — ( 23,360 ) IPO litigation expense ( 1,165 ) — — ( 1,165 ) Income (loss) before income taxes ( 12,904 ) 673 — ( 12,231 ) Income tax (expense) benefit ( 196 ) 158 — ( 38 ) Net income (loss) $ ( 13,100 ) $ 831 $ — $ ( 12,269 ) Segment assets $ 3,771,476 $ 239,238 $ — $ 4,010,714 Expenditures for segment assets $ 30,831 $ 516 $ — $ 31,347 Nine Months Ended September 30, 2021 Real Estate Observatory Intersegment Elimination Total Revenues: Rental revenue $ 420,586 $ — $ — $ 420,586 Intercompany rental revenue 16,271 — ( 16,271 ) — Observatory revenue — 23,758 — 23,758 Lease termination fees 15,949 — — 15,949 Third-party management and other fees 917 — — 917 Other revenue and fees 2,412 138 — 2,550 Total revenues 456,135 23,896 ( 16,271 ) 463,760 Operating expenses: Property operating expenses 92,429 — — 92,429 Intercompany rent expense — 16,271 ( 16,271 ) — Ground rent expense 6,994 — — 6,994 General and administrative expenses 42,369 — — 42,369 Observatory expenses — 16,226 — 16,226 Real estate taxes 92,367 — — 92,367 Depreciation and amortization 155,244 95 — 155,339 Total operating expenses 389,403 32,592 ( 16,271 ) 405,724 Total operating income (loss) 66,732 ( 8,696 ) — 58,036 Other income (expense): Interest income 494 3 — 497 Interest expense ( 70,553 ) — — ( 70,553 ) Loss on early extinguishment of debt ( 214 ) — — ( 214 ) Loss before income taxes ( 3,541 ) ( 8,693 ) — ( 12,234 ) Income tax (expense) benefit ( 365 ) 3,636 — 3,271 Net loss $ ( 3,906 ) $ ( 5,057 ) $ — $ ( 8,963 ) Expenditures for segment assets $ 64,655 $ 4 $ — $ 64,659 24 Nine Months Ended September 30, 2020 Real Estate Observatory Intersegment Elimination Total Revenues: Rental revenue $ 426,021 $ — $ — $ 426,021 Intercompany rental revenue 13,356 — ( 13,356 ) — Observatory revenue — 24,049 — 24,049 Lease termination fees 1,575 — — 1,575 Third-party management and other fees 930 — — 930 Other revenue and fees 5,254 — — 5,254 Total revenues 447,136 24,049 ( 13,356 ) 457,829 Operating expenses: Property operating expenses 105,054 — — 105,054 Intercompany rent expense — 13,356 ( 13,356 ) — Ground rent expense 6,994 — — 6,994 General and administrative expenses 48,617 — — 48,617 Observatory expenses — 18,087 — 18,087 Real estate taxes 90,029 — — 90,029 Impairment charges 6,204 — — 6,204 Depreciation and amortization 143,522 87 — 143,609 Total operating expenses 400,420 31,530 ( 13,356 ) 418,594 Total operating income (loss) 46,716 ( 7,481 ) — 39,235 Other income (expense): Interest income 2,438 91 — 2,529 Interest expense ( 66,906 ) — — ( 66,906 ) Loss on early extinguishment of debt ( 86 ) — — ( 86 ) IPO litigation expense ( 1,165 ) — — ( 1,165 ) Loss before income taxes ( 19,003 ) ( 7,390 ) — ( 26,393 ) Income tax (expense) benefit ( 692 ) 3,486 — 2,794 Net loss $ ( 19,695 ) $ ( 3,904 ) $ — $ ( 23,599 ) Expenditures for segment assets $ 77,503 $ 2,748 $ — $ 80,251 During the second quarter 2020, we wrote off $ 4.1 million of prior expenditures on a Combined Heat Power/Redundancy onsite power generation project in our real estate segment that is rendered economically unviable due to New York City's Local Law 97 and from its measurement of carbon from natural gas combustion generates fines. During the third quarter 2020, we also wrote off $ 2.1 million of prior expenditures on a build-to-suit development project in our real estate segment that was halted due to reconsideration by the user driven by the COVID-19 pandemic. For the nine months ended September 30, 2020, the $ 6.2 million write-off is shown as impairment charges in the condensed consolidated statements of operations. 12. Subsequent Events On October 26, 2021, we signed conditional agreements for purchase of two multifamily assets in Manhattan totaling 625 residential units, for a total purchase price of approximately $ 307 million, inclusive of approximately $ 186 million of assumed debt. An affiliate of one of the principal current owners of the properties would retain a 10 % equity stake and would continue to serve as property manager. The transaction is subject to conditions, the satisfaction of which depend upon actions by third parties as well as by us. As such, there can be no assurance that the transaction can or will be closed. 25