Empire State Realty Trust, Inc. (Form: S-11/A, Received: 09/27/2013 17:15:33)

Signatures

/s/ Anthony E. Malkin

Anthony E. Malkin

Chairman of the Board of Directors, Chief Executive Officer and President (Principal Executive Officer)

September 27, 2013

/s/ David A. Karp

David A. Karp

Chief Financial Officer, Executive Vice President and Treasurer (Principal Financial and Accounting Officer)

September 27, 2013

As filed with the Securities and Exchange Commission on September 27, 2013

Registration Statement No. 333-179485

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

AMENDMENT NO. 8

FORM S-11

FOR REGISTRATION

UNDER

THE SECURITIES ACT OF 1933

OF SECURITIES OF CERTAIN REAL ESTATE COMPANIES

EMPIRE STATE REALTY TRUST, INC.

(Exact name of registrant as specified in its governing instruments)

One Grand Central Place

60 East 42 ^nd Street

New York, New York 10165

(212) 953-0888

(Address, including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

Anthony E. Malkin

Chairman, Chief Executive Officer and President

c/o Empire State Realty Trust, Inc.

One Grand Central Place

60 East 42nd Street

New York, New York 10165

(212) 953-0888

(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)

Copies to:

Larry P. Medvinsky, Esq.

Jason D. Myers, Esq.

Clifford Chance US LLP

31 West 52 ^nd Street

New York, New York 10019

Tel: (212) 878-8000

Fax: (212) 878-8375

Stuart A. Barr, Esq.

Hogan Lovells US LLP

555 Thirteenth Street, NW

Washington, DC 20004

Tel: (202) 637-5600

Fax: (202) 637-5910

Approximate date of commencement of proposed sale to the public : As soon as practicable after the effective date of this registration statement. ¨

If any of the Securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box: ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨

If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check One):


Large accelerated filer	¨	Accelerated filer	¨
Non-accelerated filer	x (Do not check if a smaller reporting company)	Smaller Reporting Company	¨

CALCULATION OF REGISTRATION FEE




Title of Each Class of Securities to be Registered	Proposed Maximum Aggregate Offering Price ^{(1) (2)}	Amount of Registration Fee ⁽¹⁾
Class A Common Stock, par value $0.01 per share	$1,233,375,000	$146,432.35 ⁽³⁾

(1)	Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended.

(2)	Includes the offering price of Class A common stock that may be purchased by the underwriters upon the exercise of their option.

(3)	Includes $114,600.00 previously paid.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

Empire State Realty Trust, Inc. has prepared this Amendment No. 8 to the Registration Statement on Form S-11 (File No. 333-179485) for the purpose of updating the fees and expenses as set forth below in Item 31 of Part II as well as filing Exhibits 1.1, 5.1, 8.1, 10.4, 10.5, 10.6, 10.7 and 23.1 and updated versions of Exhibits 3.1, 10.17, 10.18, 10.19 and 21.1 to the Registration Statement as set forth below in Item 36(b) of Part II. No changes have been made to the preliminary prospectus constituting Part I of the Registration Statement or to Part II of the Registration Statement (other than to reflect the changes in Item 31 and to reflect in the Exhibit Table the filing of the aforementioned exhibits).

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 31.

Other Expenses of Issuance and Distribution.

The following table shows the fees and expenses, other than underwriting discounts and commissions, to be paid by us in connection with the sale and distribution of the securities being registered hereby including the costs of the consolidation transaction. All amounts are estimates except the Securities and Exchange Commission, or SEC, registration fee and the Financial Industry Regulatory Authority, Inc., or FINRA, filing fee.


SEC registration fee	$	146,432.35
FINRA filing fee	$	110,506.25
NYSE listing fee	$	250,000.00
Legal fees and expenses (including Blue Sky fees)	$	32,895,413.00
Accounting fees and expenses	$	47,283,894.00
Printing and engraving expenses	$	5,333,099.00
Transfer agent fees and expenses	$	24,705.00
Miscellaneous	$	24,022,789.00

Total	$	110,066,838.60

Item 32.

Sales to Special Parties.

None.

Item 33.

Recent Sales of Unregistered Securities.

On July 29, 2011, Anthony E. Malkin purchased 1,000 shares of our Class A common stock for an aggregate purchase price of $100.00 in a private offering. We will repurchase these shares at cost upon completion of this offering. Such issuance was exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof.

Prior to or concurrently with the completion of this offering, based on the mid-point of the range of prices on the cover of the prospectus, we will acquire, through a series of contributions and merger transactions, the assets and liabilities of the entities through which our predecessor holds our predecessor and the related properties and will issue 148,839,571 operating partnership units and 17,715,085 shares of our Class A common stock and will pay $717.8 million in cash to holders of interests in our predecessor and the related properties. In addition, prior to or concurrently with the completion of this offering, we will issue 1,130,006 shares of our Class B common stock to certain holders of interest in our predecessor and the related properties that receive operating partnership units. All of such persons had a substantive, pre-existing relationship with us and irrevocably committed to the transfer of such interests prior to the initial filing of this registration statement, and

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all such persons who will receive operating partnership units and/or shares of our common stock are “accredited investors” as defined under Regulation D of the Securities Act. Each such person is a holder of an interest in our predecessor and we have dealt with such persons throughout the time that such persons held interests in our predecessor. The issuance of such operating partnership units and common stock will be effected in reliance upon an exemption from registration provided by Section 4(2) under the Securities Act and pursuant to Rule 506 of Regulation D of the Securities Act. All such persons were provided with and had access to information about the issuers of these securities including business objectives and historical property and financial information.

Item 34.

Indemnification of Directors and Officers.

Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains such a provision and eliminates the liability of our directors and officers to the maximum extent permitted by Maryland law.

The MGCL requires a Maryland corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that:

•

the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty;

•

the director or officer actually received an improper personal benefit in money, property or services; or

•

in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.

Under the MGCL, a Maryland corporation may not indemnify a director or officer in a suit by or in the right of the corporation or in any proceeding charging improper personal benefit in which the director or officer was adjudged liable on the basis that personal benefit was improperly received. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct, was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by the corporation or in its right, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.

In addition, the MGCL permits a Maryland corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of:

•

a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and

•

a written undertaking by the director or officer or on the director’s or officer's behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct.

Our charter and bylaws obligate us, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to:

•

any present or former director or officer who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity; or

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•

any individual who, while a director or officer of our company and at our request, serves or has served another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner, member, manager or trustee of such corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity.

Our charter and bylaws also permit us, with the approval of our board of directors, to indemnify and advance expenses to members, managers, shareholders, directors, limited partners, general partners, officers or controlling persons of our predecessor in their capacities as such. In addition, our equity incentive plan requires us to indemnify our directors and members of our compensation committee in connection with the performance of their duties, responsibilities and obligations under our equity incentive plan, to the maximum extent permitted by Maryland law.

Upon completion of this offering, we intend to enter into indemnification agreements with each of our directors, executive officers and chairman emeritus, and certain other parties, providing for the indemnification by us for certain liabilities and expenses incurred as a result of actions brought, or threatened to be brought, against (i) our directors, executive officers and chairman emeritus and (ii) our executive officers, chairman emeritus and certain other parties who are former members, managers, shareholders, directors, limited partners, general partners, officers or controlling persons of our predecessor in their capacities as such. In addition, our operating partnership's partnership agreement provides that we, as general partner, and our officers and directors are indemnified to the maximum extent permitted by law. Furthermore, following completion of this offering, we intend to purchase and maintain insurance on behalf of all of our directors and executive officers against or incurred by them in their official capacities, whether or not we are required or have the power to indemnify them against the same liability and, pursuant to the indemnification agreements, we will be required to maintain a comparable "tail" directors' and officers' liability insurance policy for six years after each director or executive officer ceases to serve in such capacity.

Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 35.

Treatment of Proceeds from Stock Being Registered.

None of the proceeds will be credited to an account other than the appropriate capital share account.

Item 36.

Financial Statements and Exhibits.

(a)

Financial Statements . See page F-1 for an index to the financial statements included in the registration statement.

(b)

Exhibits . The following is a complete list of exhibits filed as part of the registration statement, which are incorporated herein:

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Exhibit Number		Exhibit Description

1.1		Form of Underwriting Agreement among Empire State Realty Trust, Inc., Empire State Realty OP, L.P. and the underwriters named therein

3.1		Articles of Amendment and Restatement of Empire State Realty Trust, Inc.

3.2**		Bylaws of Empire State Realty Trust, Inc.

4.1**		Form of Specimen Class A Common Stock Certificate of Empire State Realty Trust, Inc.

4.2**		Form of Specimen Class B Common Stock Certificate of Empire State Realty Trust, Inc.

5.1		Opinion of Clifford Chance US LLP (including consent of such firm)

8.1		Tax Opinion of Clifford Chance US LLP (including consent of such firm)

10.1**		Form of Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P.

10.2**		Form of Registration Rights Agreement among Empire State Realty Trust, Inc. and the persons named therein

10.3**		Empire State Realty Trust, Inc. Equity Incentive Plan

10.4		Form of Restricted Stock Agreement (Performance-Based)

10.5		Form of Restricted Stock Agreement (Time-Based)

10.6		Form of LTIP Agreement (Performance-Based)

10.7		Form of LTIP Agreement (Time-Based)

10.8**		Form of Tax Protection Agreement among Empire State Realty Trust, Inc., Empire State Realty OP, L.P., and the parties named therein

10.9**		Form of Indemnification Agreement among Empire State Realty Trust, Inc. and its directors and officers

10.10**		Contribution Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and certain members of the Malkin Group listed on the signature pages thereto

10.11**		Amended and Restated Contribution Agreement dated July 2, 2012 among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and certain entities affiliated with the Helmsley estate listed on the signature pages thereto

10.12**		Form of Contribution Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and each of the private existing entities contributing properties in the consolidation

10.13**		Form of Contribution Agreement among Empire State Realty Trust, Inc., Empire Realty OP, L.P. and each of the public existing entities contributing properties in the consolidation

10.14**		Form of Merger Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and each of the predecessor management companies

10.15**		Representation, Warranty and Indemnity Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P., Anthony E. Malkin, Cynthia M. Blumenthal and Scott D. Malkin

10.16**		Employment Agreement between Empire State Realty Trust, Inc. and Anthony E. Malkin

10.17		Amended and Restated Option Agreement among Empire Realty Trust, L.P. and 112 West 34 ^th Street Associates L.L.C.

10.18		Amended and Restated Option Agreement among Empire Realty Trust, L.P. and 112 West 34 ^th Street Company L.L.C.

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10.19		Amended and Restated Option Agreement among Empire Realty Trust, L.P. and 1400 Broadway Associates L.L.C.

10.20**		Form of Asset Management Agreement

10.21**		Form of Services Agreement

10.22**		Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.23**		First Amendment to Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.24**		Second Amendment to Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.25**		Replacement Promissory Note A-1 among Empire State Land Associates L.L.C. and Empire State Building Associates L.L.C. and HSBC Bank USA, National Association

10.26**		Consolidated, Amended and Restated Fee and Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C. and HSBC Bank USA, National Association

10.27**		Third Amendment to Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.28**		Commitment Letter for Secured Revolving and Term Credit Facility among Bank of America, N.A., Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Empire State Realty Trust, Inc. and Empire State Realty OP, L.P.

10.29**		Agreement to Amend Commitment Letter for Secured Revolving and Term Credit Facility among Bank of America, N.A., Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Empire State Realty Trust, Inc. and Empire State Realty OP, L.P.

10.30**		Form of Change in Control Severance Agreement

10.31**		Form of Secured Revolving and Term Credit Facility among Empire State Realty OP, L.P., ESRT Empire State Building, L.L.C., Empire State Realty Trust, Inc., the subsidiaries of Empire State Realty OP, L.P. from time to time party thereto, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA and the other lenders party thereto.

21.1		List of Subsidiaries of Empire State Realty Trust, Inc.

23.1		Consent of Clifford Chance US LLP (included in Exhibits 5.1 and 8.1)

23.2**		Consent of Ernst & Young LLP

23.3**		Consent of Rosen Consulting Group

23.4**		Consent of William H. Berkman

23.5**		Consent of Alice M. Connell

23.6**		Consent of Steven J. Gilbert

23.7**		Consent of S. Michael Giliberto

23.8**		Consent of Lawrence E. Golub

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23.9**		Consent of Thomas J. DeRosa

24.1**		Power of Attorney (included on the signature page to the registration statement)

99.1**		Stipulation of Settlement dated September 28, 2012 and Amendment thereto, dated October 10, 2012

**	Previously filed.

Item 37.

Undertakings.

(a)

The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

(b)

Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

(c)

The undersigned registrant hereby further undertakes that:

(1)

For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

(2)

For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-11 and has duly caused this Amendment No. 8 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on September 27, 2013.


Empire State Realty Trust, Inc.

By:		/s/ Anthony E. Malkin
		Anthony E. Malkin Chief Executive Officer and President

Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 8 to the Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

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EXHIBIT INDEX


Exhibit Number		Exhibit Description

1.1		Form of Underwriting Agreement among Empire State Realty Trust, Inc., Empire State Realty OP, L.P. and the underwriters named therein

3.1		Articles of Amendment and Restatement of Empire State Realty Trust, Inc.

3.2**		Bylaws of Empire State Realty Trust, Inc.

4.1**		Form of Specimen Class A Common Stock Certificate of Empire State Realty Trust, Inc.

4.2**		Form of Specimen Class B Common Stock Certificate of Empire State Realty Trust, Inc.

5.1		Opinion of Clifford Chance US LLP (including consent of such firm)

8.1		Tax Opinion of Clifford Chance US LLP (including consent of such firm)

10.1**		Form of Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P.

10.2**		Form of Registration Rights Agreement among Empire State Realty Trust, Inc. and the persons named therein

10.3**		Empire State Realty Trust, Inc. Equity Incentive Plan

10.4		Form of Restricted Stock Agreement (Performance-Based)

10.5		Form of Restricted Stock Agreement (Time-Based)

10.6		Form of LTIP Agreement (Performance-Based)

10.7		Form of LTIP Agreement (Time-Based)

10.8**		Form of Tax Protection Agreement among Empire State Realty Trust, Inc., Empire State Realty OP, L.P., and the parties named therein

10.9**		Form of Indemnification Agreement among Empire State Realty Trust, Inc. and its directors and officers

10.10**		Contribution Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and certain members of the Malkin Group listed on the signature pages thereto

10.11**		Amended and Restated Contribution Agreement dated July 2, 2012 among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and certain entities affiliated with the Helmsley estate listed on the signature pages thereto

10.12**		Form of Contribution Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and each of the private existing entities contributing properties in the consolidation

10.13**		Form of Contribution Agreement among Empire State Realty Trust, Inc., Empire Realty OP, L.P. and each of the public existing entities contributing properties in the consolidation

10.14**		Form of Merger Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P. and each of the predecessor management companies

10.15**		Representation, Warranty and Indemnity Agreement among Empire Realty Trust, Inc., Empire Realty Trust, L.P., Anthony E. Malkin, Cynthia M. Blumenthal and Scott D. Malkin

10.16**		Employment Agreement between Empire State Realty Trust, Inc. and Anthony E. Malkin

10.17		Amended and Restated Option Agreement among Empire Realty Trust, L.P. and 112 West 34 ^th Street Associates L.L.C.

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10.18		Amended and Restated Option Agreement among Empire Realty Trust, L.P. and 112 West 34 ^th Street Company L.L.C.

10.19		Amended and Restated Option Agreement among Empire Realty Trust, L.P. and 1400 Broadway Associates L.L.C.

10.20**		Form of Asset Management Agreement

10.21**		Form of Services Agreement

10.22**		Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.23**		First Amendment to Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.24**		Second Amendment to Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.25**		Replacement Promissory Note A-1 among Empire State Land Associates L.L.C. and Empire State Building Associates L.L.C. and HSBC Bank USA, National Association

10.26**		Consolidated, Amended and Restated Fee and Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C. and HSBC Bank USA, National Association

10.27**		Third Amendment to Secured Term Loan among Empire State Land Associates L.L.C., Empire State Building Associates L.L.C., HSBC Bank USA, National Association, DekaBank Deutsche Girozentrale and other institutional lenders

10.28**		Commitment Letter for Secured Revolving and Term Credit Facility among Bank of America, N.A., Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Empire State Realty Trust, Inc. and Empire State Realty OP, L.P.

10.29**		Agreement to Amend Commitment Letter for Secured Revolving and Term Credit Facility among Bank of America, N.A., Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Empire State Realty Trust, Inc. and Empire State Realty OP, L.P.

10.30**		Form of Change in Control Severance Agreement

10.31**		Form of Secured Revolving and Term Credit Facility among Empire State Realty OP, L.P., ESRT Empire State Building, L.L.C., Empire State Realty Trust, Inc., the subsidiaries of Empire State Realty OP, L.P. from time to time party thereto, Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA and the other lenders party thereto.

21.1		List of Subsidiaries of Empire State Realty Trust, Inc.

23.1		Consent of Clifford Chance US LLP (included in Exhibits 5.1 and 8.1)

23.2**		Consent of Ernst & Young LLP

23.3**		Consent of Rosen Consulting Group

23.4**		Consent of William H. Berkman

23.5**		Consent of Alice M. Connell

23.6**		Consent of Steven J. Gilbert

23.7**		Consent of S. Michael Giliberto

23.8**		Consent of Lawrence E. Golub

23.9**		Consent of Thomas J. DeRosa

24.1**		Power of Attorney (included on the signature page to the registration statement)

99.1**		Stipulation of Settlement dated September 28, 2012 and Amendment thereto, dated October 10, 2012

**	Previously filed.

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Exhibit 1.1

EMPIRE STATE REALTY TRUST, INC.

(a Maryland corporation)

[ — ] Shares of Common Stock

UNDERWRITING AGREEMENT

Dated: [ — ], 2013

EMPIRE STATE REALTY TRUST, INC.

(a Maryland corporation)

[ — ] Shares of Class A Common Stock

UNDERWRITING AGREEMENT

[ — ], 2013

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

Goldman, Sachs & Co.

as Representative(s) of the several Underwriters

c/o Merrill Lynch, Pierce, Fenner & Smith

Incorporated

One Bryant Park

New York, New York 10036

Goldman, Sachs & Co.

200 West Street

New York, New York 10282

Ladies and Gentlemen:

Empire State Realty Trust, Inc., a Maryland corporation (the “ Company ”) and Empire State Realty Trust, L.P., a Delaware limited partnership (the “ Operating Partnership ” and, together with the Company, the “ Transaction Entities ”), confirm their respective agreements with Merrill Lynch, Pierce, Fenner & Smith Incorporated (“ Merrill Lynch ”), Goldman Sachs & Co. (“ Goldman Sachs ”) and each of the other Underwriters named in Schedule A hereto (collectively, the “ Underwriters ,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Merrill Lynch and Goldman Sachs are acting as representatives (in such capacity, the “ Representatives ”), with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Class A Common Stock, par value $0.01 per share, of the Company (“ Common Stock ”) set forth in Schedule A hereto and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of [ — ] additional shares of Common Stock to cover overallotments, if any. The aforesaid [ — ] shares of Common Stock (the “ Initial Securities ”) to be purchased by the Underwriters and all or any part of the [ — ] shares of Common Stock subject to the option described in Section 2(b) hereof (the “ Option Securities ”) are herein called, collectively, the “ Securities .”

Capitalized terms used but not otherwise defined herein shall have the meanings given to those terms in the Prospectus (as herein defined).

The Transaction Entities understand that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered.

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Substantially concurrently with or immediately prior to the Closing Time (as hereinafter defined), the Transaction Entities will have completed the formation transactions described in the Registration Statement, the General Disclosure Package and the Prospectus under the headings “Prospectus Summary —The Company — Structure and Formation of Our Company” and “Structure and Formation of Our Company—Formation Transactions.” As part of these transactions,

(i)

the Underwriters will purchase the Securities and offer them in a public offering as contemplated hereunder;

(ii)

the Company will contribute the net proceeds of the Offering to the Operating Partnership in exchange for units of limited partnership interest in the Operating Partnership that are designated as Series PR Operating Partnership Units (“ Series PR OP Units ”);

(iii)

pursuant to certain contribution agreements and agreements and plans of merger, as more fully described on Schedule C hereto (the “ Acquisition Agreements ”), the Company and/or the Operating Partnership will acquire, directly or indirectly,

(a)

fee interests in three office properties that are owned by certain publicly-registered limited liability companies (the “ Public LLCs ”) acquired in exchange for an aggregate of approximately $[ — ] million in cash and [ — ] shares of Class A Common Stock, [ — ] shares of Class B Common Stock, par value $0.01 per share, of the Company (the “ Class B Common Stock ”), [ — ] units of limited partnership interest in the Operating Partnership that are designated as Series ES Operating Partnership Units, [ — ] units of limited partnership interest in the Operating Partnership that are designated as Series 60 Operating Partnership Units and [ — ] units of limited partnership interest in the Operating Partnership that are designated as Series 250 Operating Partnership Units (collectively, the “ Public OP Units ,” and together with the Series PR OP Units, the “ OP Units ”) through a consent solicitation and offering registered with the Commission (as defined below) pursuant to the registration statement on Form S-4, originally filed with the Commission on February 13, 2012 (Registration No. 333-179486) (as amended, the “ Form S-4 Registration Statement ”) (the “ Public Consolidation ”);

(b)

(1) fee or leasehold interests in 18 office and retail properties (including the three office properties referred to in paragraph (a) above) and one development parcel held by certain privately held limited liability companies, limited partnerships and corporations that Anthony E. Malkin and Peter L. Malkin and/or their affiliates and family members own interests in or control (the “ Private Entities ”) and (2) ownership of certain asset management, property management and construction companies that Anthony E. Malkin and Peter L. Malkin own interests in and control, as set forth on Schedule D hereto (the “ Management Companies ” and each, individually, a “ Management Company ” and, together with the Public LLCs and the Private Entities the “ Predecessor Entities ” and, collectively, the “ Predecessor ”) in exchange for an aggregate of approximately $[ — ] million in cash, [ — ] shares of Class A Common Stock, [ — ] shares of Class B Common Stock and [ — ] Series PR OP Units (the “ Private Consolidation ”) (the investors receiving such cash, Class A Common Stock, Class B Common Stock and OP Units in the Public Consolidation and the Private Consolidation being herein referred to as the “ Pre-Formation Participants ”).

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(iv)

pursuant to a representation, warranty and indemnity agreement, dated as of November 28, 2011 and filed as an exhibit to the Registration Statement (the “ Representation, Warranty and Indemnity Agreement ”), Anthony E. Malkin, Scott D. Malkin and Cynthia M. Blumenthal have provided representations and warranties regarding the entities and assets being acquired in the Public Consolidation and the Private Consolidation, and have agreed to indemnify the Company and the Operating Partnership for breaches of those representations and warranties;

(v)

in order to provide the Company and the Operating Partnership an exclusive remedy for potential claims under the Representation, Warranty and Indemnity Agreement, Anthony E. Malkin, Scott D. Malkin and Cynthia M. Blumenthal have entered into an indemnity escrow agreement, dated as of [ — ] and filed as an exhibit to the Registration Statement (the “ Escrow Agreement ”), pursuant to which they will deposit into escrow at the Closing Time $25,000,000 of the Common Stock or OP Units received by them as consideration in the Private Consolidation;

(vi)

the Company will enter into a registration rights agreement with certain persons receiving shares of Common Stock and/or OP Units;

(vii)

in the Formation Transactions (as defined below), pursuant to which the Company, subject to certain limitations, will agree to file one or more registration statements covering the issuance or resale of the shares of Common Stock issued in the Formation Transactions or the shares of Common Stock issued or issuable, at its option, in exchange for OP Units or Class B Common Stock issued in the Formation Transactions (the “ Registration Rights Agreement );

(viii)

the Operating Partnership has executed option agreements to acquire interests in two additional office properties from three entities (the “ Option Agreements ,” and together with this Agreement, the Acquisition Agreements, the Representation, Warranty and Indemnity Agreement, the Escrow Agreement, the Registration Rights Agreement, the Employment Agreement (as hereinafter defined), the Change in Control Agreements (as hereinafter defined) and the Operating Partnership Agreement (as hereinafter defined), the “ Operative Documents ”);

(ix)

the Operating Partnership will enter into a term loan and revolving credit facility providing for an aggregate commitment of up to $800.0 million; and

(x)

the Company will adopt a cash and equity-based incentive award plan and other incentive plans for its directors, officers, employees and consultants (the foregoing transactions listed in clauses (i)-(x), as more particularly described in the Prospectus, are referred to herein as the “ Formation Transactions ”).

The Company has filed with the Securities and Exchange Commission (the “ Commission ”) a registration statement on Form S-11 (No. 333-179485), as amended by Amendments Nos. 1, 2, 3, 4, 5, 6, 7 and 8 thereto, including the related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the Securities Act of 1933, as amended (the “ 1933 Act ”). Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430A (“ Rule 430A ”) of the rules and regulations of the Commission under the 1933 Act (the “ 1933 Act Regulations ”) and Rule 424(b) (“ Rule 424(b) ”) of the 1933 Act Regulations. The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became

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effective pursuant to Rule 430A(b) is herein called the “Rule 430A Information.” Such registration statement, including the amendments thereto, the exhibits thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the “Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “preliminary prospectus.” The final prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“ EDGAR ”).

As used in this Agreement:

“ Applicable Time ” means [ :00 P./A.M.], New York City time, on [ — ], 2013 or such other time as agreed by the Company and the Representatives in writing.

“ General Disclosure Package ” means any Issuer General Use Free Writing Prospectuses (as defined below) issued at or prior to the Applicable Time, the prospectus that is included in the Registration Statement as of the Applicable Time and the information included on Schedule E-1 hereto, all considered together.

“ Issuer Free Writing Prospectus ” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“ Rule 433 ”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“ Rule 405 ”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).

“ Issuer General Use Free Writing Prospectus ” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “ bona fide electronic road show,” as defined in Rule 433 (the “ Bona Fide Electronic Road Show ”)), as evidenced by its being specified in Schedule E-2 hereto.

“ Issuer Limited Use Free Writing Prospectus ” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.

All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall include all such financial statements and schedules and other information, if any, which is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be.

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SECTION 1. Representations and Warranties .

(a) Representations and Warranties by the Transaction Entities . Each of the Transaction Entities, jointly and severally, represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:

(i) Registration Statement and Prospectuses . Each of the Registration Statement and any post-effective amendment thereto, has become effective under the 1933 Act. Other than a Rule 462(b) Registration Statement, which became effective upon filing, no other document with respect to the Registration Statement has heretofore been filed with the Commission. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any Issuer Free Writing Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (if any) from the Commission for additional information.

Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, at the Closing Time and at each Date of Delivery complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. The preliminary prospectus that is included in the General Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus delivered to the Underwriters for use in connection with this offering, the Prospectus and any Issuer Free Writing Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(ii) Accurate Disclosure . Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the Applicable Time, at the Closing Time and at each Date of Delivery, neither (A) the General Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

The representations and warranties in Section 1(a)(ii) shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), including any prospectus wrapper, the General Disclosure Package, any individual Issuer Limited Use Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by any Underwriter

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through the Representatives expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting–Commissions and Discounts,” the information in the last paragraph under the heading “Underwriting – New York Stock Exchange,” the information in the second, third and fourth paragraphs under the heading “Underwriting–Price Stabilization, Short Positions and Penalty Bids” and the information under the heading “Underwriting–Electronic Offer, Sale and Distribution of Shares” in each case contained in the Prospectus (collectively, the “ Underwriter Information ”).

(iii) Issuer Free Writing Prospectuses . No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, or any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations on the date of first use, and the Company has complied with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the 1933 Act Regulations. The Company has not made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives; provided, that such consent is deemed to have been given with respect to each Issuer Free Writing Prospectus identified on Schedule E-2 . The Company has retained in accordance with the 1933 Act Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the 1933 Act Regulations. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Securities.

(iv) Company Not Ineligible Issuer . At the time of filing the Registration Statement and any post-effective amendment thereto and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.

(v) Independent Accountants . The accountants who certified the financial statements and supporting schedules included in the Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants with respect to the Company as required by the 1933 Act, the 1933 Act Regulations and the Public Accounting Oversight Board.

(vi) Financial Statements; Non-GAAP Financial Measures . The financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in all material respects the financial position of the entities purported to be shown thereby (including the Predecessor (as defined in such financial statements) and the Company and its consolidated subsidiaries) at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“ GAAP ”) applied on a consistent basis throughout the periods presented. The supporting schedules, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited or unaudited, as applicable, financial statements included therein. The pro forma financial statements and the related notes thereto included in the Registration

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Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein, have been prepared in all material respects in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Except as included in the Registration Statement, the General Disclosure Package and/or the Prospectus, no other historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Securities Exchange Act of 1934, as amended (the “ 1934 Act ”) and Item 10 of Regulation S-K of the 1933 Act, in each case, to the extent applicable.

(vii) No Material Adverse Change in Business . Except as otherwise stated in the Registration Statement, the General Disclosure Package and/or the Prospectus, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in or affecting the properties described in the Registration Statement, the General Disclosure Package and the Prospectus as owned or leased by the Transaction Entities or their respective subsidiaries immediately following the Formation Transactions (the “ Properties ”), considered as a whole, or in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transaction Entities and their respective subsidiaries and the Predecessor considered as one enterprise (and assuming the completion of the Formation Transactions), whether or not arising in the ordinary course of business (a “ Material Adverse Effect ”), (B) there have been no transactions entered into by the Transaction Entities and their respective subsidiaries, or any Predecessor Entity (or subsidiary thereof), other than those in the ordinary course of business, which are material with respect to the Transaction Entities and their respective subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by either of the Transaction Entities or any of their respective subsidiaries or any Predecessor Entity (or any subsidiary thereof) on any class of its capital stock, OP Units or other form of ownership interests.

(viii) Good Standing of the Company . The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Maryland and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations (A) under this Agreement and each of the Operative Documents to which it is a party and (B) in connection with the Formation Transactions; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.

(ix) Good Standing of Operating Partnership . The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, is duly qualified to do business and is in good standing as a foreign limited partnership in each jurisdiction in which its ownership or lease of property and other assets or the conduct of its business requires such qualification, except where the failure to so qualify will not have a Material Adverse Effect, and has all power and authority necessary to own or hold its

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properties and other assets, to conduct the business in which it is engaged and to enter into and perform its obligations (A) under this Agreement and each of the Operative Documents to which it is a party and (B) in connection with the Formation Transactions. The Company, immediately following the Formation Transactions, will be the sole general partner of the Operating Partnership. At the Closing Time, the First Amended and Restated Agreement of Limited Partnership of the Operating Partnership in the form filed as an exhibit to the Registration Statement (the “ Operating Partnership Agreement ”), will be in full force and effect, and the aggregate percentage interests of the Company and the limited partners in the Operating Partnership will be as set forth in the Registration Statement, the General Disclosure Package and the Prospectus; provided that to the extent any portion of the Underwriter’s option to purchase the Option Securities is exercised at the Closing Time, the percentage interest of such partners in the Operating Partnership will be adjusted accordingly. Additionally, to the extent any portion of such option to purchase the Option Securities is exercised subsequent to the Closing Time, the Company will contribute the proceeds from the sale of the Option Securities to the Operating Partnership in exchange for a number of OP Units equal to the number of Option Securities issued.

(x) Good Standing of Subsidiaries . Each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Company (after giving effect to the Formation Transactions) (each, a “ Subsidiary ” and collectively, the “ Subsidiaries ”) has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and/or the Prospectus, all of the issued and outstanding capital stock or equity interests of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only subsidiaries of the Company are (A) the subsidiaries listed on Exhibit 21 to the Registration Statement and (B) certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X.

(xi) Capitalization . The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any securityholder of the Company. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (i) other than with respect to (x) the OP Units and Class B Common Stock disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (y) any shares reserved pursuant to the Company’s equity incentive plan as disclosed in the Registration

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Statement, the General Disclosure Package and the Prospectus, no shares of capital stock of the Company are reserved for any purpose, (ii) except for the OP Units and the Class B Common Stock, there are no outstanding securities convertible into or exchangeable for any shares of capital stock of the Company, and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for shares of capital stock or any other securities of the Company.

(xii) Authorization of Agreement . This Agreement has been duly authorized, executed and delivered by each of the Transaction Entities.

(xiii) Authorization and Enforceability of Operative Documents . (A) At or prior to the Closing Time, the Operating Partnership Agreement will have been duly and validly authorized, executed and delivered by the Company and the Operating Partnership and will be a valid and binding agreement of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms; (B) each of the Acquisition Agreements and the Representation, Warranty and Indemnity Agreement has been duly authorized, executed and delivered by the Company, the Operating Partnership and the Predecessor Entities that are parties thereto, and is a valid and binding agreement, enforceable against the Company, the Operating Partnership and the Predecessor Entities that are parties thereto in accordance with its terms; (C) the Escrow Agreement has been duly authorized by the Company and the Operating Partnership and, at or prior to the Closing Time, will be executed and delivered by the Company, the Operating Partnership and each other party thereto and will constitute a valid and binding agreement of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with its terms; (D) the employment agreement described in the Registration Statement, the General Disclosure Package and the Prospectus and filed as an exhibit to the Registration Statement, between the Transaction Entities and Anthony E. Malkin (the “ Employment Agreement ”) and the change in control severance agreements described in the Registration Statement, the General Disclosure Package and the Prospectus and filed as exhibits to the Registration Statement, between the Transaction Entities and each of David A. Karp, Thomas P. Durels and Thomas N. Keltner, Jr. (the “ Change in Control Agreements ”) have been duly authorized by the Company and the Operating Partnership and, at or prior to the Closing Time, will be executed and delivered by the Company and the Operating Partnership and will constitute valid and binding agreements of the Company and the Operating Partnership, enforceable against the Company and the Operating Partnership in accordance with their terms; (E) the Registration Rights Agreement has been duly authorized by the Company and, at or prior to the Closing Time, will be executed and delivered by the Company and will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms; and (F) each of the Option Agreements has been duly authorized by the Operating Partnership and, at or prior to the Closing Time, will be executed and delivered by the Operating Partnership and will constitute a valid and binding agreement of the Operating Partnership, enforceable against the Operating Partnership in accordance with its terms; except in each case, as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws relating to or affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity and, with respect to equitable relief, the discretion of the court before which any proceeding therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity), and with respect to indemnification thereunder, except as rights may be limited by applicable law or policies underlying such law.

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(xiv) Authorization, Issuance, and Description of Securities and Class A Common Stock . The Securities to be purchased by the Underwriters and the shares of Class A Common Stock (other than the Securities) to be issued in connection with the Formation Transactions (the “ Pre-Formation Participant Shares ”) have been duly authorized for issuance and sale to the Underwriters, the Pre-Formation Participants or their nominees, as applicable, pursuant to this Agreement, or the Acquisition Agreements, as applicable, and, when (A) the Securities have been issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein and (B) the Pre-Formation Participant Shares have been issued and delivered by the Company pursuant to the applicable Acquisition Agreement in exchange for the consideration set forth therein, such Securities and Pre-Formation Participant Shares, as applicable, will be validly issued and fully paid and non-assessable. The issuance and sale by the Company of Class A Common Stock (other than the Securities) in connection with the Private Consolidation at or prior to the Closing Time are exempt from the registration requirements of the 1933 Act and applicable state securities, real estate syndication and blue sky laws. The Class A Common Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package, and the Prospectus, and such description conforms to the rights set forth in the instruments defining the same. No holder of Securities will be subject to personal liability by reason of being such a holder. The certificates, if any, to be used to evidence the Securities will, at the Closing Time, be in due and proper form and will comply in all material respects with all applicable legal requirements, the requirements of the charter and bylaws of the Company and the requirements of the New York Stock Exchange. The issuance of the Securities and the Pre-Formation Participant Shares is not subject to any preemptive or other similar rights of any securityholder of the Company.

(xv) Authorization, Issuance, and Description of OP Units . The OP Units to be issued in the Formation Transactions (the “ Pre-Formation Participant Units ”) have been duly authorized for issuance by the Operating Partnership and the Company, as its general partner, and, at the Closing Time, will be validly issued. The issuance and sale by the Operating Partnership of the Series PR OP Units in connection with the Private Consolidation are exempt from the registration requirements of the 1933 Act and applicable state securities, real estate syndication and blue sky laws. The issuance and sale by the Operating Partnership of the Public OP Units in connection with the Public Consolidation at or prior to the Closing Time have been registered with the Commission pursuant to the Form S-4 Registration Statement. The terms of the OP Units conform in all material respects to the descriptions related thereto in the Registration Statement, the General Disclosure Package and the Prospectus. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (i) no OP Units are reserved for any purpose, (ii) there are no outstanding securities convertible into or exchangeable for any OP Units, and (iii) there are no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for OP Units or any other securities of the Operating Partnership.

(xvi) Authorization and Description of Class B Common Stock . The shares of Class B Common Stock to be issued by the Company in the Formation Transactions have been duly authorized and, when such Class B Common Stock has been issued and delivered by the Company pursuant to the applicable Acquisition Agreement against payment of the consideration set forth therein, such shares of Class B Common Stock will be validly issued and fully paid and non-assessable. The issuance and sale by the Company of the Class B Common Stock in connection with the Private Consolidation are exempt from the registration requirements of the 1933 Act and applicable state securities, real estate syndication and blue sky laws, and are not in violation of the preemptive or other similar rights of any security holder of the Company. The issuance and sale by the Company of the Class B Common Stock in connection with the Public Consolidation at or prior to the Closing Time have been registered with the Commission pursuant to the Form S-4 Registration Statement. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no shares of Class B Common Stock are

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reserved for any purpose and there are no outstanding securities convertible into or exchangeable for any Class B Common Stock and no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for Class B Common Stock. The terms of the Class B Common Stock conform in all material respects to statements and descriptions related thereto contained in each of the Registration Statement, the General Disclosure Package and the Prospectus.

(xvii) Registration Rights . There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by either of the Transaction Entities under the 1933 Act pursuant to this Agreement, other than those rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus.

(xviii) Absence of Violations, Defaults and Conflicts . Neither of the Transaction Entities nor any of their respective subsidiaries is (A) in violation of its charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which either of the Transaction Entities or any of their respective subsidiaries is a party or by which it or any of them may be bound, or to which any of the Properties or any other properties or assets of the Transaction Entities or any of their respective subsidiaries is subject (collectively, “ Agreements and Instruments ”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a “ Governmental Entity ”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the other Operative Documents and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the Formation Transactions, the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “ Use of Proceeds ”) and compliance by the Transaction Entities with their obligations hereunder and thereunder have been duly authorized by all necessary corporate or limited partnership action, as applicable, and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of either of the Transaction Entities or any of their subsidiaries or any Predecessor Entity (or any subsidiary thereof) pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the charter, by-laws, certificate of limited partnership, agreement of limited partnership or similar organizational document of either of the Transaction Entities or any of their subsidiaries or any Predecessor Entity (or any subsidiary thereof) or (ii) or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity or body having jurisdiction over the Company or any of its subsidiaries (except, in the case of clause (ii) only, for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by either of the Transaction Entities or any of their subsidiaries or any Predecessor Entity (or any subsidiary thereof).

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(xix) Absence of Labor Dispute . No labor dispute with the employees of either of the Transaction Entities or any of their subsidiaries exists or, to the knowledge of either of the Transaction Entities, is imminent, which, in either case, would result in a Material Adverse Effect.

(xx) ERISA . Each Transaction Entity is in compliance in all material respects with all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ ERISA ”); no “reportable event” (as defined in Section 4043 of ERISA) has occurred with respect to any “pension plan” (as defined in, and subject to, Title IV of ERISA) for which any Transaction Entity would have any liability; no Transaction Entity has incurred or expects to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Code; each “pension plan” for which any Transaction Entity would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred thereunder, whether by action or by failure to act, which would cause the loss of such qualification, except where the failure to be so qualified would not have a Material Adverse Effect.

(xxi) Absence of Proceedings . Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries or Predecessor Entity (or subsidiary thereof), which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which would reasonably be expected to result in a Material Adverse Effect, or which would materially and adversely affect their respective properties or assets or the consummation of the transactions contemplated in this Agreement or the Formation Transactions or the performance by the Company of its obligations hereunder or under the other Operative Agreements; and the aggregate of all pending legal or governmental proceedings to which the Company or any such subsidiary or Predecessor Entity (or subsidiary thereof) is a party or of which any of their respective properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not result in a Material Adverse Effect.

(xxii) Accurate Disclosure . The statements in the Registration Statement, the General Disclosure Package and the Prospectus under the headings “Prospectus Summary—Our Tax Status,” “Prospectus Summary—Restrictions on Transfer,” “Prospectus Summary—Restrictions on Ownership of Our Capital Stock,” “Management—Executive Compensation,” “Certain Relationships and Related Transactions,” “Description of Securities,” “Certain Provisions of the Maryland General Corporation Law and Our Charter and Bylaws,” “U.S. Federal Income Tax Considerations,” “ERISA Considerations” and “Underwriting,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings in all material respects.

(xxiii) Accuracy of Exhibits . There are no contracts or documents that are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that have not been so described or filed as required.

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(xxiv) No Finder’s Fee . Except for the Underwriters’ discounts and commissions payable by the Company to the Underwriters in connection with the offering of the Securities contemplated herein or as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither of the Transaction Entities has incurred any liability for any brokerage commission, finder’s fees or similar payments in connection with the offering of the Securities contemplated hereby

(xxv) Absence of Further Requirements . No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, or under the other Operative Documents, or in connection with the consummation of the Formation Transactions, except (A) such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the New York Stock Exchange, state securities laws or the rules of FINRA, and (B) prior to the consummation of the Formation Transactions, the filing of a certificate of merger with respect to each of the mergers contemplated by the Acquisition Agreements and its acceptance by the secretary of state of the jurisdiction of incorporation or each party thereto.

(xxvi) Possession of Licenses and Permits . Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, each of the Transaction Entities and their subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “ Governmental Licenses ”) issued by the appropriate Governmental Entities necessary under applicable law to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect; each of the Transaction Entities and their respective subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and except as described in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries nor any Predecessor Entity (or subsidiary thereof) has received any written notice of proceedings pending and relating to the revocation or modification of any Governmental Licenses that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.

(xxvii) Title to Property . (A) Upon consummation of the Formation Transactions, the Operating Partnership or a subsidiary thereof will have good and marketable fee title to all real property owned by them and a valid leasehold interest in all real property leased by them, as applicable, free and clear of all mortgages, pledges, liens, claims, security interests, restrictions or encumbrances of any kind, except such as (1) are described in the Registration Statement, the General Disclosure Package and/or the Prospectus or (2) do not, singly or in the aggregate, materially adversely affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Transaction Entities or any of their subsidiaries; (B) neither the Transaction Entities nor any of their subsidiaries owns any real property other than the Properties; (C) each of the ground leases and subleases of real property, if any, material to the business of the Transaction Entities and their subsidiaries, considered as one

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enterprise, and under which the Transaction Entities or any of their subsidiaries holds properties described in the Registration Statement, the General Disclosure Package and the Prospectus, is valid, enforceable and in full force and effect, except in each case, as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws relating to or affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity and, with respect to equitable relief, the discretion of the court before which any proceeding therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity), and with respect to indemnification thereunder, except as rights may be limited by applicable law or policies underlying such law, with such exceptions as are not material and do not materially interfere with the use made or proposed to be made of such real property by either of the Transaction Entities or any of their respective subsidiaries, and neither of the Transaction Entities nor any of their subsidiaries has received notice of any material claim of any sort that has been asserted by any ground lessor or sublessor under any such ground lease or sublease threatening the rights of the Transaction Entities or any of their subsidiaries to the continued possession of the leased or subleased premises under any such ground lease or sublease; (D) all liens, charges, encumbrances, claims or restrictions on any of the Properties and the assets of a Transaction Entity or any of their subsidiaries that are required to be disclosed in the Registration Statement, the General Disclosure Package or the Prospectus are disclosed therein; (E) no tenant under any of the leases at the Properties has a right of first refusal to purchase the premises demised under such lease; (F) each of the Properties complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access to the Properties), except if and to the extent disclosed in the Prospectus, and except for such failures to comply that would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; (G) except if and to the extent disclosed in the Registration Statement, the General Disclosure package or the Prospectus, no Transaction Entity has knowledge of any pending or threatened condemnation proceedings, zoning change or other similar proceeding or action that will materially affect the use or value of any of the Properties; and (H) the mortgages and deeds of trust that encumber the Properties are not convertible into equity securities of the entity owning such Property and said mortgages and deeds of trust are not cross-defaulted or cross-collateralized with any property other than other Properties.

(xxviii) Utilities . To the knowledge of the Transaction Entities, water, stormwater, sanitary sewer, electricity and telephone service are all available at the property lines of each Property over duly dedicated streets or perpetual easements of record benefiting the applicable Property.

(xxix) Possession of Intellectual Property . The Transaction Entities and their respective subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “ Intellectual Property ”) reasonably necessary to conduct the business now operated by them, and neither of the Transaction Entities nor any of their respective subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances that would render any Intellectual Property invalid or inadequate to protect the interest of the Transaction Entities or any of their respective subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.

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(xxx) Environmental Laws . Except as described in the Registration Statement, the General Disclosure Package and/or the Prospectus or would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither of the Transaction Entities nor any of their respective subsidiaries nor any Predecessor Entity (or subsidiary thereof) is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “ Hazardous Materials ”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “ Environmental Laws ”), (B) the Transaction Entities and their respective subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws with respect to their respective Properties and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against either of the Transaction Entities or any of their subsidiaries or any Predecessor Entity (or subsidiary thereof) and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.

(xxxi) Accounting Controls and Disclosure Controls . The Company and each of its subsidiaries (i) have taken all necessary actions to ensure that, within the time period required, the Company and its subsidiaries will maintain effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 under the rules and regulations of the Commission under the 1934 Act (the “ 1934 Act Regulations ”)) and (ii) currently maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the Company’s inception, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. Based on its evaluation of its internal control over financial reporting, the Company is not aware of any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company and its subsidiaries have established a system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations) that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.

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(xxxii) Compliance with the Sarbanes-Oxley Act. The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it will be in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “ Sarbanes-Oxley Act ”) that are then in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement, and is actively taking steps to ensure that it will be in compliance with other provisions of the Sarbanes-Oxley Act not currently in effect, upon the effectiveness of such provisions.

(xxxiii) Payment of Taxes . All material United States federal income tax returns of the Company and its subsidiaries required by law to be filed have been filed in a timely manner and all such tax returns are correct and complete in all material respects and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except taxes and assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The Company and its subsidiaries have filed in a timely manner all tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law, and all such tax returns are correct and complete in all material respects, except insofar as the failure to file such returns would not result in a Material Adverse Effect, and all such tax returns are correct and complete in all material respects. The Company and its subsidiaries have paid all material taxes due, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect.

(xxxiv) Insurance . The Transaction Entities and their respective subsidiaries and the Predecessor Entities (and subsidiaries thereof) carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. Except as described in the Registration Statement, the General Disclosure Package and /or the Prospectus, neither of the Transaction Entities has any reason to believe that it or any of its subsidiaries will not be able (A) to renew, if desired, its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither of the Company nor any of its subsidiaries nor any Predecessor Entity (or subsidiary thereof) has been denied any insurance coverage that it has sought or for which it has applied. The Transaction Entities, directly or indirectly, have obtained title insurance on the fee or leasehold interests, as the case may be, in each of the Properties, in an amount equal to no less than eighty percent (80%) of the purchase price of each such Property.

(xxxv) Investment Company Act . Neither of the Transaction Entities is required, and upon the issuance and sale of the Securities and the Pre-Formation Participant Shares as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus neither will be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “ 1940 Act ”).

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(xxxvi) Absence of Manipulation . Neither of the Transaction Entities, nor any of their respective affiliates, has taken, nor will take, directly or indirectly, any action that is designed, or would reasonably be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

(xxxvii) Foreign Corrupt Practices Act . Neither of the Transaction Entities, any of their respective subsidiaries or, to the knowledge of either of the Transaction Entities, any director, officer, agent, employee, affiliate or other person acting on behalf of either of the Transaction Entities or any of their respective subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and each of the Transaction Entities and, to the knowledge of each of the Transaction Entities, their respective affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

(xxxviii) Money Laundering Laws . The operations of each of the Transaction Entities and their respective subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “ Money Laundering Laws ”); and no action, suit or proceeding by or before any Governmental Entity involving either of the Transaction Entities or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of either of the Transaction Entities, threatened.

(xxxix) OFAC . None of the Company, any of its subsidiaries, or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of any such entity is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”); and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any of its subsidiaries, joint venture partners or other person, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

(xl) Lending Relationship . Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither of the Transaction Entities (i) has any material lending or other relationship with any bank or lending affiliate of any Underwriter or (ii) intends to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate of any Underwriter.

(xli) Statistical and Market-Related Data . Any statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.

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(xlii) Approval of Listing . The Securities have been approved for listing on the New York Stock Exchange, subject to notice of issuance.

(xliii) Prior Sales of Common Stock or OP Units . Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not sold, issued or distributed any shares of Common Stock and the Operating Partnership has not sold, issued or distributed any OP Units.

(xliv) Real Estate Investment Trust . Commencing with its taxable year ending December 31, 2013, the Company will be organized in conformity with the requirements for qualification and taxation as a real estate investment trust (“ REIT ”) under the Internal Revenue Code of 1986, as amended (the “ Code ”), and the Company’s proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT under the Code for such taxable year and thereafter.

(xlv) No Restrictions on Distributions or Repayment . Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Operating Partnership is not currently prohibited, directly or indirectly, from paying any distributions to the Company to the extent permitted by applicable law, from making any other distribution on the Operating Partnership’s partnership interest, or from repaying the Company for any loans or advances made by the Company to the Operating Partnership.

(xlvi) No Equity Awards . Except for grants which are subject to consummation of the offering or are otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company has not granted to any person or entity, a stock option or other equity-based award to purchase Common Stock, pursuant to an equity-based compensation plan or otherwise.

(xlvii) Absence of Certain Relationships . No relationship, direct or indirect, exists between or among either of the Transaction Entities on the one hand, and the directors, officers, stockholders, customers or suppliers of the Transaction Entities on the other hand, which is required to be described in the Registration Statement, the General Disclosure Package or the Prospectus which is not so described.

(xlviii) No Rated Debt Securities Outstanding . Neither of the Transaction Entities nor any of their respective subsidiaries has outstanding any securities that have received a rating from any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act.

(b) Officer’s Certificates . Any certificate signed by any officer of either of the Transaction Entities or any of their subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Transaction Entities to each Underwriter as to the matters covered thereby.

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SECTION 2. Sale and Delivery to Underwriters; Closing .

(a) Initial Securities . On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price per share set forth in Schedule A , that number of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.

(b) Option Securities . In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grant(s) an option to the Underwriters, severally and not jointly, to purchase up to an additional [ — ] shares of Common Stock, as set forth in Schedule B , at the price per share set forth in Schedule A , less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby granted may be exercised for 30 days after the date hereof and may be exercised in whole or in part from time to time only for the purpose of covering overallotments made in connection with the offering and distribution of the Initial Securities upon notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a “ Date of Delivery ”) shall be determined by the Representatives, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time (as hereinafter defined). If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject, in each case, to such adjustments as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.

(c) Payment . Payment of the purchase price for, and delivery of certificates for, or book-entry credits representing, the Initial Securities shall be made at the offices of Clifford Chance US LLP, 31 West 52 ^nd Street, New York, New York 10019, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New York City time) on the fifth (sixth, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “ Closing Time ”).

In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for or book-entry credits representing, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representatives and the Company, on each Date of Delivery as specified in the notice from the Representatives to the Company.

Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery, to the Representatives for the respective accounts of the Underwriters of certificates for the Securities or book-entry credits representing the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. Each of the Representatives,

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individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.

(d) Denominations; Registration . Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representatives may request in writing at least one full business day before the Closing Time or the relevant Date of Delivery, as the case may be. The Initial Securities and any Option Securities shall be delivered by or on behalf of the Company to the Representatives, through the facilities of The Depository Trust Company, for the account of the several Underwriters. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the relevant Date of Delivery, as the case may be.

SECTION 3. Covenants of the Transaction Entities . Each of the Transaction Entities covenants with each Underwriter as follows:

(a) Compliance with Securities Regulations and Commission Requests . The Company, subject to Section 3(b), will comply with the requirements of Rule 430A, and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make reasonable efforts to prevent the issuance of any stop order, prevention or suspension and, if any such stop order, prevention or suspension is issued, to obtain the withdrawal thereof at the earliest possible moment.

(b) Continued Compliance with Securities Laws . The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“ Rule 172 ”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will

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not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company will give the Representatives notice of its intention to make any filings pursuant to the 1934 Act or 1934 Act Regulations from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.

(c) Delivery of Registration Statements . The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(d) Delivery of Prospectuses . The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(e) Blue Sky Qualifications . The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect for a period of not less than one year from the later of the effective date of the Registration Statement and any Rule 462(b) Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.

(f) Rule 158 . The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.

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(g) Use of Proceeds . The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”

(h) Listing . The Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock (including the Securities) on the New York Stock Exchange.

(i) Restriction on Sale of Securities . During a period of 180 days from the date of the Prospectus (the “ Lock-up Period ”), the Company will not, without the prior written consent of the Representatives (i) directly or indirectly offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, sell or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing (except for a registration statement on Form S-8 relating to the Company’s equity incentive plan) or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock issued pursuant to any existing non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (D) any shares of Common Stock or OP Units issued in connection with the Formation Transactions (including shares of Common Stock or OP Units that may be issued in connection with the Option Agreements), provided that , for the avoidance of doubt, this clause (D) shall apply only to transfers made in connection with the Formation Transactions and not to any subsequent transfer by the Company of Common Stock received pursuant to the Escrow Agreement as a result of indemnification claim against a party thereto, (E) shares of Common Stock transferred in accordance with Article VII of the Company’s charter or (F) shares of Common Stock or OP Units, in the aggregate not to exceed 10% of the number of shares of Common Stock or OP Units, outstanding in the aggregate, issued in connection with other acquisitions of real property or real property companies; provided, however, that the recipients of shares of Common Stock issued in connection with such an acquisition shall be required to agree in writing not to sell, offer, dispose of or otherwise transfer any such shares during the remainder of the Lock-Up Period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives) or (G) any shares of common stock sold pursuant to a Demand Registration (as defined in the Registration Rights Agreement). In the event that either (1) during the last 17 days of the Lock-up Period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will issue an earnings release or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed in this Section 3(i) shall continue to apply until the expiration of the 18-day period beginning on the date of the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive, in writing, such extension.

(j) Reporting Requirements . The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the 1933 Act.

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(k) Issuer Free Writing Prospectuses . The Company agrees that, without the prior written consent of the Representative(s), it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule E-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or the Prospectus and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified, or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission, provided that this sentence shall not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriter Information.

(l) Absence of Manipulation . Except as contemplated herein or in the Registration Statement, the General Disclosure Package and the Prospectus, neither Transaction Entity will take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Securities.

(m) Qualification and Taxation as a REIT . The Company will use its best efforts to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2013, and the Company will use its best efforts to continue to qualify for taxation as a REIT under the Code unless and until the Company’s board of directors determines in good faith that it is no longer in the best interests of the Company and its stockholders to be so qualified.

(n) Sarbanes-Oxley . Each of the Transaction Entities will comply in all material respects with all applicable provisions of the Sarbanes-Oxley Act that are in effect.

SECTION 4. Payment of Expenses .

(a) Expenses . The Transaction Entities jointly and severally agree to pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits thereto) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e)

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hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation, printing and delivery to the Underwriters of the Blue Sky Survey and any supplement thereto (not to exceed $10,000), (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and one-half of the cost of aircraft chartered in connection with the road show, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities and (ix) the fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange. Except as explicitly provided in this Section 4(a), Section 4(b), Section 6 and Section 7, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel and other advisors.

(b) Termination of Agreement . If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 9(a)(i) or (iii) or Section 10 hereof, the Company shall reimburse the Underwriters (or the non-defaulting Underwriters, solely with respect to a termination pursuant to Section 10) for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel, for the Underwriters.

SECTION 5. Conditions of Underwriters’ Obligations . The obligations of the several Underwriters hereunder are subject, in their discretion, to the accuracy of the representations and warranties of the Transaction Entities contained herein or in certificates of any officer of either of the Transaction Entities or any of their subsidiaries delivered pursuant to the provisions hereof, to the performance by the Transaction Entities of their covenants and other obligations hereunder, and to the following further conditions:

(a) Effectiveness of Registration Statement; Rule 430A Information . The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and at Closing Time no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.

(b) Opinion of Counsel for the Transaction Entities . At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of Clifford Chance US LLP, counsel for the Transaction Entities, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially to the effect set forth in Exhibit A-1 hereto, and to such further effect as counsel to the Underwriters may reasonably request.

(c) Tax Opinion . At the Closing Time, the Representatives shall have received the favorable tax opinion, dated the Closing Time, of Clifford Chance US LLP, tax counsel for the Transaction Entities, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters substantially to the effect set forth in Exhibit A-2 hereto.

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(d) Opinion of Counsel for Underwriters . At Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of Hogan Lovells US LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters with respect to the issuance and sale of the Securities delivered at the Closing Time, the Registration Statement, the General Disclosure Package, the Prospectus and other related matters as the Representatives may reasonably require, and the Transaction Entities shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. In giving such opinion such counsel may state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Transaction Entities and their subsidiaries and certificates of public officials.

(e) Officers’ Certificate . At the Closing Time, there shall not have been, since the date hereof, since the Applicable Time or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Transaction Entities and their subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the Chief Executive Officer, the President or a Vice President of the Company and the Operating Partnership and of the chief financial or chief accounting officer of the Company and the Operating Partnership, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Transaction Entities in Section 1(a) of this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time in all material respects, (iii) the Transaction Entities have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated by the Commission.

(f) Ernst & Young LLP Comfort Letter . At or prior to the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, dated as of the date of this Agreement, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.

(g) Ernst & Young LLP Bring-down Comfort Letter . At the Closing Time and on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, dated as of such date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.

(h) Approval of Listing . At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.

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(i) No Objection . FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.

(j) Lock-up Agreements . At the date of this Agreement, the Representatives shall have received agreements substantially in the form of Exhibit B hereto signed, respectively, by the Company’s directors and named executive officers listed on Schedule F hereto.

(k) Formation Transactions . All of the transactions that are to occur in order to consummate the Formation Transactions shall have been, or shall be substantially concurrently with the Closing Time, consummated on terms reasonably satisfactory to the Representatives.

(l) Title Insurance . At or before the Closing Time, the Transaction Entities will have obtained title insurance policies insuring the fee or leasehold title to each of the properties described in the Registration Statement, the General Disclosure Package and the Prospectus as owned or leased by the Transaction Entities or their respective subsidiaries immediately following the Formation Transactions at the respective current market value of such properties.

(m) Conditions to Purchase of Option Securities . In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Transaction Entities contained herein and the statements in any certificates furnished by the Transaction Entities and any of their subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:

(i) Officers’ Certificate . A certificate, dated such Date of Delivery, of the Chief Executive Officer, the President or a Vice President of each of the Company and the Operating Partnership and of the chief financial or chief accounting officer of each of the Company and the Operating Partnership confirming that the certificate delivered at the Closing Time pursuant to Section 5(e) hereof remains true and correct as of such Date of Delivery.

(ii) Opinion of Counsel for Transaction Entities . If requested by the Representatives, the favorable opinion of Clifford Chance US LLP, counsel for the Transaction Entities, in form and substance reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.

(iii) Tax Opinion . The favorable tax opinion of Clifford Chance US LLP, tax counsel for the Transaction Entities, in form and substance reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(c) hereof.

(iv) Opinion of Counsel for Underwriters . If requested by the Representatives, the favorable opinion of Hogan Lovells US LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(d) hereof.

(v) Ernst & Young LLP Bring-down Comfort Letter . If requested by the Representatives, a letter from Ernst & Young LLP, in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as

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the letter furnished to the Representatives pursuant to Section 5(f) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery.

(n) Additional Documents . At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters.

(o) Termination of Agreement . If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 14, 15 and 16 shall survive any such termination and remain in full force and effect.

SECTION 6. Indemnification .

(a) Indemnification of Underwriters . The Transaction Entities jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “ Affiliate ”)), its selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:

(i) against any and all loss, liability, claim, damage and expense whatsoever, joint or several, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), (B) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“ Marketing Materials ”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or (C) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Company’s disclosures contained in the S-4 Registration Statement, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of matters covered by clause (A) or (B) above, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except to the extent provided in Section 6(a)(ii);

(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever, in each case based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Transaction Entities;

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(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever, in each case based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;

provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of or based on any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General Disclosure Package, or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with the Underwriter Information.

(b) Indemnification of Company, Directors and Officers . Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General Disclosure Package, or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with the Underwriter Information.

(c) Actions against Parties; Notification . Each indemnified party shall give notice as promptly as reasonably practicable, in writing, to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this Section 6. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall be satisfactory to the indemnified party and shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses, other than reasonable costs of investigation, of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

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(d) Settlement without Consent if Failure to Reimburse . If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

SECTION 7. Contribution . If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses, referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses, incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Transaction Entities, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Transaction Entities, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

The relative benefits received by the Transaction Entities, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Transaction Entities, on the one hand, and the total underwriting discount and commissions received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.

The relative fault of the Transaction Entities, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Transaction Entities or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

The Transaction Entities and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses, incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.

Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.

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No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Transaction Entities, each officer of the Transaction Entities who signed the Registration Statement, and each person, if any, who controls the Transaction Entities within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Transaction Entities. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.

SECTION 8. Representations, Warranties and Agreements to Survive . All representations, warranties, indemnities and agreements contained in this Agreement or in certificates of officers of the Transaction Entities or any of their subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.

SECTION 9. Termination of Agreement .

(a) Termination . The Representative(s) may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Representative(s), since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs, or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof, or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative(s), impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the New York Stock Exchange, or (iv) if trading generally on the New York Stock Exchange has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, (v) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.

(b) Liabilities . If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15 and 16 shall survive such termination and remain in full force and effect.

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SECTION 10. Default by One or More of the Underwriters . If one or more of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase the Securities which it or they are obligated to purchase under this Agreement (the “ Defaulted Securities ”), the Representatives shall have the right, in their discretion, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth. If within 24 hours after such default by one or more Underwriters the Representatives do not arrange for the purchase of all, but not less than all, of the Defaulted Securities, then the Transaction Entities shall be entitled to (but shall not be obligated to take) a further period of 24 hours within which to procure one or more underwriters reasonably satisfactory to the Representatives to purchase the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, neither the Representatives nor the Company shall have completed such arrangements within such respective periods, then:

(i) if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, then the Company shall have the right to require and each of the non-defaulting Underwriters shall then be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or

(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, or if the Company shall not exercise the right described in subsection (i) above, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell, the Option Securities to be purchased and sold on such Date of Delivery, shall terminate without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 4 hereof and the indemnity and contribution agreements in Sections 6 and 7 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.

In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.

SECTION 11. Notices . All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to Merrill Lynch at One Bryant Park, New York, New York 10036, attention of Syndicate Department, with a copy to ECM Legal and to Goldman Sachs at 200 West Street, New York, New York 10282-2198, Attention: Registration Department; notices to the Company shall be directed to it at One Grand Central Place, 60 East 42nd Street, New York, New York, 10165, attention of Thomas N. Keltner, Jr.

In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the underwriters are required to obtain, verify and record information that

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identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the underwriters to properly identify their respective clients.

SECTION 12. No Advisory or Fiduciary Relationship . Each of the Transaction Entities acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Transaction Entities, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Transaction Entities, any of their subsidiaries, or their respective stockholders, unitholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Transaction Entities with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Transaction Entities or any of their subsidiaries on other matters) and no Underwriter has any obligation to the Transaction Entities with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of each of the Transaction Entities, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering of the Securities and the Transaction Entities have consulted their own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.

SECTION 13. Parties . This Agreement shall each inure to the benefit of and be binding upon the Underwriters, the Transaction Entities and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Transaction Entities and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Transaction Entities and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

SECTION 14. Trial by Jury . Each of the Transaction Entities (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders or unitholders, as applicable, and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

SECTION 15. GOVERNING LAW . THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.

SECTION 16. Consent to Jurisdiction; Waiver of Immunity . Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“ Related Proceedings ”) shall be instituted in (i) the U.S. District Court for the Southern District of New York in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “ Specified Courts ”), and

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each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “ Related Judgment ”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.

SECTION 17. TIME . TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME AND THE TERM “BUSINESS DAY” SHALL MEAN ANY DAY WHEN THE COMMISSION’S OFFICE IN WASHINGTON, D.C. IS OPEN FOR BUSINESS.

SECTION 18. Prior Agreements Superseded . This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.

SECTION 19. Partial Unenforceability . The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

SECTION 20. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

SECTION 21. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.

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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.


Very truly yours,

EMPIRE STATE REALTY TRUST, INC.

By
Title:

EMPIRE STATE REALTY OP, L.P.

By
Title:


CONFIRMED AND ACCEPTED,
as of the date first above written:

MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED

By
Name:
Title:

GOLDMAN, SACHS & CO.

By
		(Goldman, Sachs & Co.)

For themselves and as Representatives of the other Underwriters named in Schedule A hereto.

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Exhibit 3.1

EMPIRE STATE REALTY TRUST, INC.

ARTICLES OF AMENDMENT AND RESTATEMENT

FIRST: Empire State Realty Trust, Inc., a Maryland corporation (the “ Corporation ”), desires to amend and restate its charter as currently in effect and as hereinafter amended (the “ Charter ”).

SECOND: The following provisions are all the provisions of the Charter currently in effect and as hereinafter amended:

ARTICLE I

Name

The name of the Corporation is:

Empire State Realty Trust, Inc.

Under circumstances in which the Board of Directors of the Corporation (the “ Board of Directors ”) determines that the use of the name of the Corporation is not practicable, the Corporation may use any other designation or name of the Corporation.

ARTICLE II

Purpose

The purposes for which the Corporation is formed are to engage in any lawful act or activity (including, without limitation or obligation, engaging in business as a real estate investment trust under the Internal Revenue Code of 1986, as amended, or any successor statute (the “ Code ”)) for which corporations may be organized under the general laws of the State of Maryland as now or hereafter in force. For purposes of the Charter, “ REIT ” means a real estate investment trust within the meaning of Sections 856 through 860 of the Code. The foregoing enumerated purposes and objects shall be in no way limited or restricted by reference to, or inference from, the terms of any other clause of this or any other article of the Charter and each shall be regarded as independent; and they are intended to be and shall be construed as powers as well as purposes and objects of the Corporation and shall be in addition to and not in limitation of the general powers of corporations under the Maryland General Corporation Law (the “ MGCL ”).

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ARTICLE III

Principal Office in State

The address of the principal office of the Corporation in the State of Maryland is c/o CSC Lawyers Incorporating Service Company, 7 St. Paul Street, Suite 1660, Baltimore, Maryland 21202. The Corporation may have such offices or places of business within or outside the State of Maryland as the Board of Directors may from time to time determine.

ARTICLE IV

Resident Agent

The name and address of the resident agent of the Corporation in the State of Maryland are c/o CSC Lawyers Incorporating Service Company, 7 St. Paul Street, Suite 1660, Baltimore, Maryland 21202. The resident agent is a Maryland corporation.

ARTICLE V

Provisions for Defining, Limiting and Regulating Certain Powers of the Corporation and of the Stockholders and Directors

Section 5.1 Number of Directors . The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. The number of directors of the Corporation initially shall be one, which number may be increased or decreased only by the Board of Directors pursuant to the Bylaws of the Corporation (the “ Bylaws ”), but shall never be less than the minimum number required by the MGCL nor more than 15. The name of the initial director who shall serve until the first annual meeting of stockholders and until his successor is duly elected and qualifies is:

Anthony E. Malkin

The Board of Directors may fill any vacancy, whether resulting from an increase in the number of directors or otherwise, on the Board of Directors occurring before the first annual meeting of stockholders in the manner provided in the Bylaws.

The Corporation elects, at such time as it becomes eligible to make the election provided for under Section 3-804(c) of the MGCL, that, except as may be provided by the Board of Directors in setting the terms of any class or series of stock, any and all vacancies on the Board of Directors may be filled only by the affirmative vote of a majority of the remaining directors in office, even if the remaining directors do not constitute a quorum, and any director elected to fill a vacancy shall serve for the remainder of the full term of the directorship in which such vacancy occurred and until a successor is duly elected and qualifies.

Section 5.2 Extraordinary Actions . Except as specifically provided in Section 5.8 (relating to removal of directors) and in the last sentence of Article VIII, notwithstanding any provision of law permitting or requiring any action to be taken or approved by the affirmative

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vote of the holders of shares entitled to cast a greater number of votes, any action taken by stockholders shall be effective and valid if declared advisable by the Board of Directors and taken or approved by the affirmative vote of holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter.

Section 5.3 Authorization by Board of Stock Issuance . The Board of Directors may authorize the issuance from time to time of shares of stock of the Corporation of any class or series, whether now or hereafter authorized, or securities or rights convertible into shares of its stock of any class or series, whether now or hereafter authorized, for such consideration as the Board of Directors may deem advisable (or without consideration in the case of a stock split or stock dividend), subject to such restrictions or limitations, if any, as may be set forth in the MGCL, the Charter or the Bylaws.

Section 5.4 Preemptive and Appraisal Rights . Except as may be provided by the Board of Directors in setting the terms of classified or reclassified shares of stock pursuant to Section 6.4 or as may otherwise be provided by a contract approved by the Board of Directors, no holder of shares of stock of the Corporation shall, as such holder, have any preemptive right to purchase or subscribe for any additional shares of stock of the Corporation or any other security of the Corporation which it may issue or sell. Holders of shares of stock shall not be entitled to exercise any rights of an objecting stockholder provided for under Title 3, Subtitle 2 of the MGCL or any successor statute unless the Board of Directors, upon the affirmative vote of a majority of the Board of Directors, shall determine that such rights apply, with respect to all or any classes or series of stock, to one or more transactions occurring after the date of such determination in connection with which holders of such shares would otherwise be entitled to exercise such rights.

Section 5.5 Indemnification . The Corporation shall, to the maximum extent permitted by Maryland law in effect from time to time, indemnify, and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, (a) any individual who is a present or former director or officer of the Corporation or (b) any individual who, while a director or officer of the Corporation and at the request of the Corporation, serves or has served as a director, officer, partner, member, manager or trustee of another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise, from and against any claim or liability to which such person may become subject or which such person may incur by reason of his or her service in such capacity. The Corporation shall have the power, with the approval of the Board of Directors, to provide such indemnification and advancement of expenses to any (a) present or former member, manager, shareholder, director, limited partner, general partner, officer or controlling person of (1) Malkin Holdings LLC, (2) an entity that owned an interest in one of the 18 real properties or two acres of land that are going to be or were contributed to the Corporation, Empire State Realty OP, L.P. (the “ Operating Partnership ”) or their subsidiaries (each such entity, a “ Contributing Entity ”) in the Corporation’s initial public offering or (3) any direct or indirect partner or member, or any employee benefit plan or other enterprise thereof ( provided, that , in the case such direct or indirect partner or member owns direct or indirect interests in any properties not being contributed to the Corporation, the Operating Partnership or their subsidiaries in the Corporation’s initial public offering, only to the extent such service relates to the business of

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Malkin Holdings LLC or any Contributing Entity) or (b) any agent for participants in any Contributing Entity or any direct or indirect partner or member thereof ( provided , that , in the case such direct or indirect partner or member owns direct or indirect interests in any properties not being contributed to the Corporation or the Operating Partnership, only to the extent such service relates to the business of Malkin Holdings LLC or any Contributing Entity). The rights to indemnification and advance of expenses provided by this Charter and the Bylaws shall vest immediately upon election of a director or officer. The indemnification and payment or reimbursement of expenses provided in this Charter shall not be deemed exclusive of or limit in any way other rights to which any person seeking indemnification or payment or reimbursement of expenses may be or may become entitled under any bylaw, resolution, insurance, agreement or otherwise. For the avoidance of doubt, the rights of indemnification provided by this Charter and the Bylaws shall protect acts performed by such indemnitees (including by reason of being named a person who is about to become a director) prior to the date of this Charter, including acts performed, or omissions taking place, prior to the formation of the Corporation.

Section 5.6 Determinations by Board . The determination as to any of the following matters, made in good faith by or pursuant to the direction of the Board of Directors consistent with the Charter, shall be final and conclusive and shall be binding upon the Corporation and every holder of shares of its stock: the amount of the net income of the Corporation for any period and the amount of assets at any time legally available for the payment of dividends, redemption of its stock or the payment of other distributions on its stock; the amount of paid-in surplus, net assets, other surplus, annual or other cash flow, funds from operations, net profit, net assets in excess of capital, undivided profits or excess of profits over losses on sales of assets; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of any class or series of stock of the Corporation; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Corporation or of any shares of stock of the Corporation; the number of shares of stock of any class of the Corporation; any matter relating to the acquisition, holding and disposition of any assets by the Corporation; or any other matter relating to the business and affairs of the Corporation or required or permitted by applicable law, the Charter or Bylaws or otherwise to be determined by the Board of Directors.

Section 5.7 REIT Qualification . If the Corporation elects to qualify for U.S. federal income tax treatment as a REIT, the Board of Directors shall take such actions as it determines are necessary or appropriate to preserve the qualification of the Corporation as a REIT; provided, however, that if the Board of Directors determines that it is no longer in the best interests of the Corporation to continue to be qualified as a REIT, the Board of Directors may revoke or otherwise terminate, pursuant to Section 856(g) of the Code, the Corporation’s REIT election. The Board of Directors also may determine that compliance with any restriction or limitation on stock ownership and transfers set forth in Article VII is no longer required for REIT qualification.

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Section 5.8 Removal of Directors . Subject to the rights of holders of one or more classes or series of Preferred Stock to elect or remove one or more directors, any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and then only by the affirmative vote of holders of shares entitled to cast at least two-thirds of all the votes entitled to be cast generally in the election of directors. For the purpose of this paragraph, “cause” shall mean, with respect to any particular director, conviction of a felony or a final judgment of a court of competent jurisdiction holding that such director caused demonstrable, material harm to the Corporation through bad faith or active and deliberate dishonesty.

ARTICLE VI

Stock

Section 6.1 Authorized Shares . The Corporation has authority to issue 500,000,000 shares of stock, consisting of 400,000,000 shares of Class A Common Stock, $0.01 par value per share (“ Class A Common Stock ”), 50,000,000 shares of Class B Common Stock, $0.01 par value per share ( “Class B Common Stock ” and together with the Class A Common Stock, “ Common Stock ”), and 50,000,000 shares of Preferred Stock, $0.01 par value per share (“ Preferred Stock ”). The aggregate par value of all authorized shares of stock having par value is $5,000,000. If shares of one class of stock are classified or reclassified into shares of another class of stock pursuant to Section 6.2, 6.3 or 6.4 of this Article VI, the number of authorized shares of the former class shall be automatically decreased and the number of shares of the latter class shall be automatically increased, in each case by the number of shares so classified or reclassified, so that the aggregate number of shares of stock of all classes that the Corporation has authority to issue shall not be more than the total number of shares of stock set forth in the first sentence of this paragraph. The Board of Directors, with the approval of a majority of the entire Board and without any action by the stockholders of the Corporation, may amend the Charter from time to time to increase or decrease the aggregate number of shares of stock or the number of shares of stock of any class or series that the Corporation has authority to issue.

Section 6.2 Class A Common Stock . Subject to the provisions of Article VII and except as may otherwise be specified in the Charter, each share of Class A Common Stock shall entitle the holder thereof to one vote on each matter on which holders of Class A Common Stock are entitled to vote. The Board of Directors may reclassify any unissued shares of Class A Common Stock from time to time in one or more classes or series of stock. In the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of Class A Common Stock shall be entitled (after payment or provision for payment of the debts and other liabilities of the Corporation and to holders of shares of any class of stock hereafter classified or reclassified having a preference over Class A Common Stock as to distributions in the liquidation, dissolution or winding up of the Corporation) to share ratably in the remaining net assets of the Corporation, together with the holders of shares of any other class of stock now existing or hereafter classified or reclassified not having a preference over Class A Common Stock as to distributions in the liquidation, dissolution or winding up of the Corporation. The holders of Class A Common Stock shall be entitled to receive dividends when and as authorized by the Board of Directors and declared by the Corporation, but only out of funds legally available therefor. Except as expressly provided in this Article VI, Class A Common Stock and Class B Common Stock shall have the same rights and privileges and rank equally, share ratably and be identical in all respects as to all matters. The Class A Common Stock and Class B Common Stock shall vote together as a single class.

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Section 6.3 Class B Common Stock . Subject to the provisions of Article VII and except as may otherwise be specified in the Charter, the rights, preferences, privileges and restrictions granted and imposed upon the Class B Common Stock are as follows:

Section 6.3.1 Definitions . For the purpose of this Section 6.3, the following terms shall have the following meanings:

Affiliate . The term “ Affiliate ” shall mean, with respect to any Person, (i) any Person directly or indirectly controlling or controlled by or under common control with such Person, (ii) any Person owning or controlling ten percent (10%) or more of the outstanding voting interests of such Person, (iii) any Person of which such Person owns or controls ten percent (10%) or more of the voting interests or (iv) any officer, director, general partner or trustee of such Person or any Person referred to in clauses (i), (ii), and (iii) above. For the purposes of this definition, “control” when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Controlled Entity ” means, as to any Person, (a) any corporation more than twenty five percent (25%) of the outstanding voting stock of which is owned by such Person and such Person’s Family Members and Affiliates, (b) any trust, whether or not revocable, of which such Person and such Person’s Family Members and Affiliates are the sole initial income beneficiaries, (c) any partnership of which such Person or such Person’s Family Members and Affiliates are the managing partners and in which such Person, such Person’s Family Members and Affiliates hold partnership interests representing at least twenty-five percent (25%) of such partnership’s capital and profits and (d) any limited liability company of which such Person or such Person’s Family Members and Affiliates are the managers and in which such Person, such Person’s Family Members and Affiliates hold membership interests representing at least twenty-five percent (25%) of such limited liability company’s capital and profits.

“ Family Member ” means, as to any Person that is an individual, such Person’s spouse, ancestors (whether by blood or by adoption or step-ancestors by marriage), descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law and descendants (whether by blood or by adoption or step-descendants by marriage) of a brother or sister and any limited liability company or inter vivos or testamentary trusts (whether revocable or irrevocable) of which only such Person, his or her spouse, ancestors (whether by blood or by adoption or step-ancestors by marriage), descendants (whether by blood or by adoption or step-descendants by marriage), brothers and sisters, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law and descendants (whether by blood or by adoption or step-descendants by marriage) of a brother or sister are initial income beneficiaries.

OP Unit . The term “ OP Unit ” shall have the meaning set forth in the Partnership Agreement.

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Operating Partnership . The term “ Operating Partnership ” shall mean Empire State Realty OP, L.P., a Delaware limited partnership.

Partnership Agreement . The term “ Partnership Agreement ” shall mean the First Amended and Restated Agreement of Limited Partnership of the Operating Partnership, as amended from time to time.

Person . The term “ Person ” shall mean an individual or a corporation, partnership (general or limited), trust, estate, custodian, nominee, unincorporated organization, association, limited liability company or any other individual or entity in its own or any representative capacity.

Qualified Transferee . The term “ Qualified Transferee ” shall mean (a) a Family Member of a Person, (b) an Affiliate of a Person or (c) a Controlled Entity of such Person.

Transfer . The term “ Transfer ” shall mean any sale, assignment, bequest, conveyance, devise, gift (outright or in trust), pledge, encumbrance, hypothecation, mortgage, exchange, transfer or other disposition or act of alienation, whether voluntary or involuntary or by operation of law, of any OP Unit or share of Class B Common Stock in a single transaction or series of transactions. The term “Transfer” shall include the exercise of the redemption rights afforded to holders of OP Units under the Partnership Agreement. In the event that any OP Units or shares of Class B Common Stock are Transferred to a Qualified Transferee described in clause (b) or (c) of the definition of such term, and such Transferee thereafter ceases to be a Qualified Transferee of the Transferor, then a Transfer of such any OP Units or shares of Class B Common Stock shall be deemed to occur at such time as such Transferee ceases to be a Qualified Transferee. The terms “ Transferring ” and “ Transferred ” shall have the correlative meanings.

Section 6.3.2 Dividend Rights . Subject to the preferences applicable to any series of Preferred Stock, if any, outstanding at any time, the holders of Class B Common Stock shall be entitled to share equally, on a per share basis, in such dividends and other distributions of cash, property or shares of stock of the Corporation as may be authorized by the Board of Directors and declared by the Corporation from time to time with respect to the Class A Common Stock out of assets or funds of the Corporation legally available therefor.

Section 6.3.3 Voting Rights . Subject to the provisions of Article VII and except as may otherwise be specified in the Charter, each share of Class B Common Stock shall entitle the holder thereof to fifty (50) votes on each matter on which holders of Class A Common Stock are entitled to vote. The Class B Common Stock and Class A Common Stock shall vote together as a single class.

Section 6.3.4 Reclassification of Unissued Shares . The Board of Directors may reclassify any unissued shares of Class B Common Stock from time to time in one or more classes or series of stock.

Section 6.3.5 Liquidation . In the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of Class B Common Stock shall be entitled (after payment or provision for payment of the debts

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and other liabilities of the Corporation and to holders of shares of any class of stock hereafter classified or reclassified having a preference over Class B Common Stock as to distributions in the liquidation, dissolution or winding up of the Corporation) to share ratably in the remaining net assets of the Corporation, together with the holders of shares of any other class of stock hereafter classified or reclassified not having a preference over Class B Common Stock as to distributions in the liquidation, dissolution or winding up of the Corporation.

Section 6.3.6 Equal Status . Except as expressly provided in this Article VI, Class A Common Stock and Class B Common Stock shall have the same rights and privileges and rank equally, share ratably and be identical in all respects as to all matters.

Section 6.3.7 Automatic Conversion .

(a)

In the event a holder of Class B Common Stock Transfers OP Units held by such Person other than to a Qualified Transferee, then, to the extent such holder has a sufficient number of shares of Class B Common Stock, one share of Class B Common Stock held by such holder shall, upon such Transfer, automatically convert into one share of Class A Common Stock for every 49 OP Units Transferred by such Person (rounding up to the nearest 49).

(b)

If a Qualified Transferee of OP Units (the “ first Qualified Transferee ”) Transfers OP Units (the “ subject OP Units ”) held by the first Qualified Transferee other than to the initial holder of the subject OP Units (the “ initial Transferor ”) or to another Qualified Transferee of the initial Transferor, one share of Class B Common Stock held by the first Qualified Transferee shall, upon such Transfer, automatically convert into one share of Class A Common Stock for every 49 OP Units Transferred by such Person (rounding up to the nearest 49). If the first Qualified Transferee does not hold a sufficient number of shares of Class B Common Stock to be converted into shares of Class A Common Stock in accordance with the preceding sentence, then a number of shares of Class B Common Stock equal to such deficiency held by the initial Transferor (or, if the initial Transferor does not hold sufficient shares of Class B Common Stock, (i) one or more Qualified Transferees of the initial Transferor to which the initial Transferor has Transferred shares of Class B Common Stock or (ii) one or more Qualified Transferees of the Qualified Transferees referred to in subclause (i) above) shall automatically convert into one share of Class A Common Stock for every 49 OP Units Transferred by such Person (rounding up to the nearest 49).

Section 6.3.8 Transfers . Immediately prior to any Transfer of Class B Common Stock other than to a Qualified Transferee, shares of Class B Common Stock subject to Transfer shall automatically convert into an equal number of shares of Class A Common Stock.

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Section 6.3.9 Optional Conversion .

(a)

Each holder of Class B Common Stock may, from time to time, convert some or all of the shares of Class B Common Stock held by such holder into an equal number of shares of Class A Common Stock, in accordance with this Section 6.3.9 (the “ Optional Conversion Right ”).

(b)

In order to exercise the Optional Conversion Right, a holder of Class B Common Stock shall deliver the certificates (if any) representing the shares of Class B Common Stock to be converted, duly endorsed for transfer, together with a written conversion notice to the transfer agent for the Class B Common Stock (or if there is no transfer agent, to the Corporation). Such conversion notice shall state: (i) the number of shares of Class B Common Stock to be converted; and (ii) the date on which such conversion shall occur (which date shall be a Business Day no less than five (5) Business Days and not exceeding twenty (20) Business Days from the date of such conversion notice) (the “ Optional Conversion Date ”). Notwithstanding the foregoing, if the shares of Class B Common Stock are held in global form, such notice shall comply with applicable procedures of the Depository Trust Company (“ DTC ”). Shares of Class B Common Stock as to which the Optional Conversion Right has been properly exercised shall be converted into the applicable number of shares of Class A Common Stock in accordance with this Section 6.3.9 prior to the close of business on the Optional Conversion Date.

(c)

In connection with the exercise of any Optional Conversion Right, the Corporation shall comply with all U.S. federal and state securities laws and stock exchange rules in connection with any conversion of Class B Common Stock into Class A Common Stock.

Section 6.4 Preferred Stock . The Board of Directors may classify any unissued shares of Preferred Stock and reclassify any previously classified but unissued shares of Preferred Stock of any series from time to time, in one or more classes or series of stock.

Section 6.5 Classified or Reclassified Shares . Prior to issuance of classified or reclassified shares of any class or series, the Board of Directors by resolution shall: (a) designate that class or series to distinguish it from all other classes and series of stock of the Corporation; (b) specify the number of shares to be included in the class or series; (c) set or change, subject to the provisions of Article VII and subject to the express terms of any class or series of stock of the Corporation outstanding at the time, the preferences, conversion or other rights, voting powers, restrictions, including, without limitation, restrictions on transferability, limitations as to dividends or other distributions, qualifications and terms and conditions of redemption for each class or series; and (d) cause the Corporation to file articles supplementary with the State Department of Assessments and Taxation of Maryland. Any of the terms of any class or series of stock set or changed pursuant to clause (c) of this Section 6.4 may be made dependent upon facts or events ascertainable outside the Charter (including determinations by the Board of Directors or other facts or events within the control of the Corporation) and may vary among holders thereof, provided that the manner in which such facts, events or variations shall operate upon the terms of such class or series of stock is clearly and expressly set forth in the articles supplementary or other charter document.

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Section 6.6 Stockholders’ Consent in Lieu of Meeting . Any action required or permitted to be taken at any meeting of the stockholders may be taken without a meeting if a unanimous consent setting forth the action is given in writing or by electronic transmission by each stockholder entitled to vote on the matter and filed with the minutes of proceedings of the stockholders.

Section 6.7 Charter and Bylaws . The rights of all stockholders and the terms of all stock are subject to the provisions of the Charter and the Bylaws.

ARTICLE VII

Restrictions on Transfer and Ownership of Shares

Section 7.1 Definitions . For the purpose of this Article VII, the following terms shall have the following meanings:

Aggregate Stock Ownership Limit . The term “ Aggregate Stock Ownership Limit ” shall mean not more than 9.8% (in value or in number of shares, whichever is more restrictive) of the aggregate of the outstanding shares of Capital Stock, subject to adjustment from time to time by the Board of Directors in accordance with Section 7.2.8. Notwithstanding the foregoing, for purposes of determining the percentage ownership of Capital Stock by any Person, shares of Capital Stock that are treated as Beneficially Owned or Constructively Owned by such Person shall be deemed outstanding. The number and value of the outstanding shares of Capital Stock shall be determined by the Board of Directors in good faith, which determination shall be conclusive for all purposes hereof.

Beneficial Ownership . The term “ Beneficial Ownership ” shall mean ownership of Capital Stock by a Person, whether the interest in the shares of Capital Stock is held directly or indirectly (including by a nominee), and shall include interests that would be treated as owned through the application of Section 544 of the Code, as modified by Sections 856(h)(1)(B) and 856(h)(3) of the Code. Whenever a Person Beneficially Owns shares of Capital Stock that are not actually outstanding (e.g. shares issuable upon the exercise of an option or the conversion of a convertible security) (“ Option Shares ”), then, whenever the Charter requires a determination of the percentage of outstanding shares of a class of Capital Stock Beneficially Owned by such Person, the Option Shares Beneficially Owned by such Person shall also be deemed to be outstanding. The terms “ Beneficial Owner ,” “ Beneficially Own ,” “ Beneficially Owns ” and “ Beneficially Owned ” shall have the correlative meanings.

Business Day . The term “ Business Day ” shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.

Capital Stock . The term “ Capital Stock ” shall mean all classes or series of stock of the Corporation, including, without limitation, Common Stock and Preferred Stock.

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Charitable Beneficiary . The term “ Charitable Beneficiary ” shall mean one or more beneficiaries of the Trust as determined pursuant to Section 7.3.6, provided that each such organization must be described in Section 501(c)(3) of the Code and contributions to each such organization must be eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the Code.

Common Stock Ownership Limit . The term “ Common Stock Ownership Limit ” shall mean not more than 9.8% (in value or in number of shares, whichever is more restrictive, and subject to adjustment from time to time by the Board of Directors in accordance with Section 7.2.8) of the aggregate of the outstanding shares of Common Stock, excluding any such outstanding Common Stock which is not treated as outstanding for federal income tax purposes. Notwithstanding the foregoing, for purposes of determining the percentage ownership of Common Stock by any Person, shares of Common Stock that are treated as Beneficially Owned or Constructively Owned by such Person shall be deemed to be outstanding. The number and value of the outstanding shares of Common Stock shall be determined by the Board of Directors in good faith, which determination shall be conclusive for all purposes hereof.

Constructive Ownership . The term “ Constructive Ownership ” shall mean ownership of Capital Stock by a Person, whether the interest in the shares of Capital Stock is held directly or indirectly (including by a nominee), and shall include interests that would be treated as owned through the application of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively Own,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings.

Excepted Holder . The term “ Excepted Holder ” shall mean any Person for whom an Excepted Holder Limit is created by the Board of Directors pursuant to Section 7.2.7.

Excepted Holder Limit . The term “ Excepted Holder Limit ” shall mean, provided that the affected Excepted Holder agrees to comply with the requirements established by the Board of Directors pursuant to Section 7.2.7 and subject to adjustment pursuant to Section 7.2.8, the percentage limit established by the Board of Directors pursuant to Section 7.2.7, which limit may be expressed, in the discretion of the Board of Directors, as one or more percentages and/or numbers of shares of Capital Stock, and may apply with respect to one or more classes of Capital Stock or to all classes of Capital Stock in the aggregate, provided that the affected Excepted Holder agrees to comply with the requirements established by the Board of Directors pursuant to Section 7.2.7 and subject to adjustment pursuant to Section 7.2.8.

Initial Date . The term “ Initial Date ” shall mean the date of closing of the Corporation’s initial public offering of Class A Common Stock.

Market Price . The term “ Market Price ” on any date shall mean, with respect to any class or series of outstanding shares of Capital Stock, the Closing Price for such Capital Stock on such date. The “ Closing Price ” on any date shall mean the last sale price for such Capital Stock, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, for such Capital Stock, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the NYSE or, if such Capital Stock is not listed or admitted to trading on the NYSE, as

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reported on the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Capital Stock is listed or admitted to trading or, if such Capital Stock is not listed or admitted to trading on any national securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the principal automated quotation system that may then be in use or, if such Capital Stock is not quoted by any such system, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such Capital Stock selected by the Board of Directors or, in the event that no trading price is available for such Capital Stock, the fair market value of the Capital Stock, as determined in good faith by the Board of Directors.

NYSE . The term “ NYSE ” shall mean the New York Stock Exchange.

Person . The term “ Person ” shall mean an individual, corporation, partnership, limited liability company, estate, trust (including a trust qualified under Sections 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and a group to which an Excepted Holder Limit applies.

Prohibited Owner . The term “ Prohibited Owner ” shall mean, with respect to any purported Transfer, any Person who, but for the provisions of Section 7.2.1, would Beneficially Own or Constructively Own shares of Capital Stock in excess of the Aggregate Stock Ownership Limit, Common Stock Ownership Limit or Excepted Holder Limit, and if appropriate in the context, shall also mean any Person who would have been the record owner of the shares that the Prohibited Owner would have so owned.

Restriction Termination Date . The term “ Restriction Termination Date ” shall mean the first day after the Initial Date on which the Board of Directors determines pursuant to Section 5.7 of the Charter that it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT, or that compliance with the restrictions and limitations on Beneficial Ownership, Constructive Ownership and Transfers of shares of Capital Stock set forth herein is no longer required in order for the Corporation to qualify as a REIT.

Transfer . The term “ Transfer ” shall mean any issuance, sale, transfer, gift, assignment, devise or other disposition, as well as any other event that causes any Person to acquire, or change its level of, beneficial ownership (for purposes of Section 856(a)(5) of the Code), Beneficial Ownership or Constructive Ownership of Capital Stock or the right to vote or receive dividends on Capital Stock, or any agreement to take any such actions or cause any such events, including (a) the granting or exercise of any option (or any disposition of any option), (b) any disposition of any securities or rights convertible into or exchangeable for Capital Stock or any interest in Capital Stock or any exercise of any such conversion or exchange right and (c) Transfers of interests in other entities that result in changes in beneficial ownership (for purposes of Section 856(a)(5) of the Code), Beneficial Ownership or Constructive Ownership of Capital Stock; in each case, whether voluntary or involuntary, whether owned of record, beneficially owned (for purposes of Section 856(a)(5) of the Code), Beneficially Owned or Constructively Owned and whether by operation of law or otherwise. The terms “ Transferring ” and “ Transferred ” shall have the correlative meanings.

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Trust . The term “ Trust ” shall mean any trust provided for in Section 7.2.1(b).

Trustee . The term “ Trustee ” shall mean the Person unaffiliated with the Corporation and a Prohibited Owner, that is appointed by the Corporation to serve as trustee of the Trust.

Section 7.2 Capital Stock.

Section 7.2.1 Ownership Limitations . Subject to Section 7.4, during the period beginning on the Initial Date through the date prior to the Restriction Termination Date:

(a)

Basic Restrictions .

(i)

(1) No Person, other than an Excepted Holder, shall Beneficially Own or Constructively Own shares of Capital Stock in excess of the Aggregate Stock Ownership Limit, (2) no Person, other than an Excepted Holder, shall Beneficially Own or Constructively Own shares of Common Stock in excess of the Common Stock Ownership Limit and (3) no Excepted Holder shall Beneficially Own or Constructively Own shares of Capital Stock in excess of the Excepted Holder Limit for such Excepted Holder.

(ii)

No Person shall Beneficially Own or Constructively Own shares of Capital Stock to the extent that such Beneficial Ownership or Constructive Ownership of shares of Capital Stock would result in the Corporation (A) being “closely held” within the meaning of Section 856(h) of the Code (without regard to whether the ownership interest is held during the last half of a taxable year), or (B) otherwise failing to qualify as a REIT.

(iii)

No Person shall Beneficially Own or Constructively Own shares of Capital Stock to the extent that such ownership would result in the Corporation owning (directly or indirectly) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation (either directly or indirectly through one or more partnerships or limited liability companies) from such tenant for the taxable year of the Corporation during which such determination is being made would reasonably be expected to equal or exceed the lesser of (a) one percent (1%) of the Corporation’s gross income (as determined for purposes of Section 856(c) of the Code), or (b) an amount that would cause the Corporation to fail to satisfy any of the gross income requirements of Section 856(c) of the Code.

(iv)

Any Transfer of shares of Capital Stock that, if effective, would result in the Capital Stock being beneficially owned by less than

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100 Persons (for purposes of Section 856(a)(5) of the Code) shall be void ab initio , and the intended transferee shall acquire no rights in such shares of Capital Stock.

Without limitation of the application of any other provision of this Article VII, it is expressly intended that the restrictions on ownership and Transfer described in this Section 7.2.1 of Article VII shall apply to restrict the rights of any members or partners in limited liability companies or partnerships to exchange their interest in such entities for shares of Capital Stock.

(b)

Transfer in Trust . If any Transfer of shares of Capital Stock occurs which, if effective, would result in any Person Beneficially Owning or Constructively Owning shares of Capital Stock in violation of Section 7.2.1(a)(i), (ii) or (iii),

(i)

then that number of shares of Capital Stock the Beneficial Ownership or Constructive Ownership of which otherwise would cause such Person to violate Section 7.2.1(a)(i), (ii) or (iii) (rounded up to the nearest whole share) shall be automatically transferred to a Trust for the benefit of a Charitable Beneficiary, as described in Section 7.3, effective as of the close of business on the Business Day prior to the date of such Transfer, and such Person shall acquire no rights in such shares; or

(ii)

if the transfer to the Trust described in clause (i) of this sentence would not be effective for any reason to prevent the violation of Section 7.2.1(a)(i), (ii) or (iii), then the Transfer of that number of shares of Capital Stock that otherwise would cause any Person to violate Section 7.2.1(a)(i), (ii) or (iii), shall be void ab initio , and the intended transferee shall acquire no rights in such shares of Capital Stock.

In determining which shares of Capital Stock are to be transferred to a Trust in accordance with this Section 7.2.1(b) and Section 7.3 hereof, shares shall be so transferred to a Trust in such manner as minimizes the aggregate value of the shares that are transferred to the Trust (except as provided in Section 7.2.6) and, to the extent not inconsistent therewith, on a pro rata basis. To the extent that, upon a transfer of shares of Capital Stock pursuant to this Section 7.2.1(b), a violation of any provision of Section 7.2.1(a) would nonetheless be continuing (as, for example, where the ownership of shares of Capital Stock by a single Trust would result in the shares of Capital Stock being beneficially owned (for purposes of Section 856(a)(5) of the Code) by fewer than 100 Persons), then shares of Capital Stock shall be transferred to that number of Trusts, each having a Trustee and a Charitable Beneficiary or Beneficiaries that are distinct from those of each other Trust, such that there is no violation of any provision of Section 7.2.1(a) hereof.

Section 7.2.2 Remedies for Breach . If the Board of Directors or any duly authorized committee thereof shall at any time determine in good faith that a Transfer or other event has taken place that results in a violation of Section 7.2.1 or that a Person intends to acquire or has

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attempted to acquire “beneficial ownership” (for purposes of Section 856(a)(5) of the Code), Beneficial Ownership or Constructive Ownership of any shares of Capital Stock in violation of Section 7.2.1 (whether or not such violation is intended), the Board of Directors or such committee thereof shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or other event, including, without limitation, causing the Corporation to redeem shares, refusing to give effect to such Transfer on the books of the Corporation or instituting proceedings to enjoin such Transfer or other event; provided , however , that any Transfer or attempted Transfer or other event in violation of Section 7.2.1 shall automatically result in the transfer to the Trust described above, and, where applicable, such Transfer (or other event) shall be void ab initio as provided above irrespective of any action (or non-action) by the Board of Directors or such committee thereof.

Section 7.2.3 Notice of Restricted Transfer . Any Person who acquires or attempts or intends to acquire Beneficial Ownership or Constructive Ownership of shares of Capital Stock that will or may violate Section 7.2.1(a) or any Person who would have owned shares of Capital Stock that resulted in a transfer to the Trust pursuant to the provisions of Section 7.2.1(b) shall immediately give written notice to the Corporation of such event or, in the case of such a proposed or attempted transaction, give at least 15 days prior written notice, and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Transfer on the Corporation’s qualification as a REIT.

Section 7.2.4 Owners Required To Provide Information . From the Initial Date and prior to the Restriction Termination Date:

(a)

every owner of five percent (5%) or more (or such lower percentage as required by the Code or the U.S. Treasury Department regulations promulgated thereunder) of the outstanding shares of Capital Stock, within 30 days after the end of each taxable year, shall give written notice to the Corporation stating the name and address of such owner, the number of shares of each class and series of Common Stock and other shares of Capital Stock Beneficially Owned and a description of the manner in which such shares are held. Each such owner shall provide to the Corporation such additional information as the Corporation may request in order to determine the effect, if any, of such Beneficial Ownership on the Corporation’s qualification as a REIT and to ensure compliance with the Common Stock Ownership Limit and the Aggregate Stock Ownership Limit; and

(b)

each Person who is a Beneficial Owner or Constructive Owner of Capital Stock and each Person (including the stockholder of record) who is holding shares of Capital Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation such information as the Corporation may request, in good faith, in order to determine the Corporation’s qualification as a REIT and to comply with the requirements of any taxing authority or governmental authority or to determine such compliance.

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Section 7.2.5 Remedies Not Limited . Subject to Section 5.7 of the Charter, nothing contained in this Section 7.2 shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders in preserving the Corporation’s qualification as a REIT.

Section 7.2.6 Ambiguity . In the case of an ambiguity in the application of any of the provisions of this Section 7.2, Section 7.3, or any definition contained in Section 7.1, the Board of Directors shall have the power to determine the application of the provisions of this Section 7.2 or Section 7.3 or any such definition with respect to any situation based on the facts known to it. In the event Section 7.2 or 7.3 requires an action by the Board of Directors and the Charter fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of Sections 7.1, 7.2 or 7.3. Absent a decision to the contrary by the Board of Directors (which the Board of Directors may make in its sole and absolute discretion), if a Person would have (but for the remedies set forth in Section 7.2.2) acquired Beneficial Ownership or Constructive Ownership of shares of Capital Stock in violation of Section 7.2.1, such remedies (as applicable) shall apply first to the shares of Capital Stock which, but for such remedies, would have been Beneficially Owned or Constructively Owned (but not actually owned) by such Person, pro rata among the Persons who actually own such shares of Capital Stock based upon the relative number of the shares of Capital Stock held by each such Person.

Section 7.2.7 Exceptions .

(a)

Subject to Section 7.2.1(a)(ii), the Board of Directors, in its sole and absolute discretion, may exempt (prospectively and/or retroactively, as applicable) a Person from the Aggregate Stock Ownership Limit and/or the Common Stock Ownership Limit, as the case may be, and establish or increase an Excepted Holder Limit for such Person if:

(i)

the Board of Directors obtains such representations, covenants and undertakings from such Person as are reasonably necessary to ascertain that no individual’s (as defined in Section 542(a)(2) of the Code, as modified by Section 856(h)(3) of the Code) Beneficial Ownership or Constructive Ownership of such shares of Capital Stock will violate Section 7.2.1(a)(ii);

(ii)

such Person provides the Board of Directors with information including, to the extent necessary, representations and undertakings satisfactory to the Board of Directors in its reasonable discretion that demonstrate such Person’s Beneficial Ownership or Constructive Ownership of stock in excess of the Aggregate Stock Ownership Limit or Common Stock Ownership Limit will not violate Section 7.2.1(a)(iii); and

(iii)

such Person agrees that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in Sections 7.2.1 through

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7.2.6) will result in such shares of Capital Stock being automatically transferred to a Trust in accordance with Sections 7.2.1(b) and 7.3.

(b)

Prior to granting any exception pursuant to Section 7.2.7(a), the Board of Directors may require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’s qualification as a REIT. Notwithstanding the receipt of any ruling or opinion, the Board of Directors may impose such conditions or restrictions as it deems appropriate in connection with granting such exception.

(c)

Subject to Section 7.2.1(a)(ii), an underwriter which participates in a public offering or a private placement of Capital Stock (or securities convertible into or exchangeable for Capital Stock) may Beneficially Own or Constructively Own shares of Capital Stock (or securities convertible into or exchangeable for Capital Stock) in excess of the Aggregate Stock Ownership Limit, the Common Stock Ownership Limit, or both such limits, but only to the extent necessary to facilitate such public offering or private placement.

(d)

The Board of Directors may only reduce the Excepted Holder Limit for an Excepted Holder: (1) with the written consent of such Excepted Holder at any time, or (2) pursuant to the terms and conditions of the agreements and undertakings entered into with such Excepted Holder in connection with the establishment of the Excepted Holder Limit for that Excepted Holder. No Excepted Holder Limit shall be reduced to a percentage that is less than the Common Stock Ownership Limit or the Aggregate Stock Ownership Limit, as applicable.

Section 7.2.8 Increase or Decrease in Aggregate Stock Ownership and Common Stock Ownership Limits .

(a)

Subject to Section 7.2.1(a)(ii), the Board of Directors may, in its sole and absolute discretion, from time to time increase or decrease the Common Stock Ownership Limit and the Aggregate Stock Ownership Limit; provided , however , that any decreased Common Stock Ownership Limit and/or Aggregate Stock Ownership Limit will not be effective for any Person whose percentage ownership in Common Stock is in excess of such decreased Common Stock Ownership Limit and/or whose percentage ownership in Capital Stock is in excess of such decreased Aggregate Stock Ownership Limit, as applicable, until such time as such Person’s percentage of Common Stock equals or falls below the decreased Common Stock Ownership Limit and/or such Person’s percentage of Capital Stock equals or falls below the decreased Aggregate Stock Ownership Limit, as applicable, but any further acquisition of Capital

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Stock in excess of such percentage ownership of Common Stock and/or Capital Stock will be in violation of the Common Stock Ownership Limit and/or Aggregate Stock Ownership Limit, as applicable, and, provided further , that any increased or decreased Common Stock Ownership Limit and/or Aggregate Stock Ownership Limit would not allow five or fewer Persons to Beneficially Own more than 49.9% in value of the outstanding Capital Stock.

(b)

Prior to increasing or decreasing the Common Stock Ownership Limit or the Aggregate Stock Ownership Limit pursuant to Section 7.2.8(a), the Board of Directors may require such opinions of counsel, affidavits, undertakings or agreements, in any case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’s qualification as a REIT.

Section 7.2.9 Legends .

(a)

Each certificate representing shares of Class A Common Stock, if certificated, or any written statement of information in lieu of a certificate, if shares of Class A Common Stock are uncertificated, shall bear substantially the following legend:

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half of a taxable year) or otherwise cause the Corporation to fail to qualify as a REIT; (iv) no Person may Beneficially Own or Constructively Own shares of Capital Stock to the extent that such ownership would result in the Corporation owning (directly or indirectly) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation (either directly or indirectly through one or more partnerships or limited liability companies) from such tenant for the taxable year of the Corporation during which such determination is being made would reasonably be expected to equal or exceed the lesser of (a) one percent (1%) of the Corporation’s gross income (as determined for purposes of Section 856(c) of the Code), or (b) an amount that would cause the Corporation to fail to satisfy any of the gross income requirements of Section 856(c) of the Code; and (v) any Transfer of shares of Capital Stock that, if effective, would result in the Capital Stock being beneficially owned by less than 100 persons (for purposes of Section 856(a)(5) of the Code) shall be void ab initio, and the intended transferee shall acquire no rights in such shares of Capital Stock. Any Person who Beneficially Owns or Constructively Owns or attempts to Beneficially Own or Constructively Own shares of Capital Stock which causes or will cause a Person to Beneficially Own or Constructively Own shares of Capital Stock in excess or in violation of the above limitations must immediately notify the Corporation in writing, or, in the case of such a proposed or attempted transaction, give at least 15 days prior written notice. If any of the restrictions on transfer or ownership as set forth in (i) through (iv) above are violated, the shares of Capital Stock in excess or in violation of such limitations will be automatically transferred to a Trustee of a Trust for the benefit of one or more Charitable Beneficiaries. In addition, the Corporation may redeem shares upon the terms and conditions specified by the Board of Directors in its sole discretion if the Board of Directors determines that ownership or a Transfer or other event may violate the restrictions described above. Furthermore, upon the occurrence of certain events, attempted Transfers in violation of the restrictions described in (i) through (iv) above may be void ab initio. All capitalized terms in this legend have the meanings defined in the charter of the Corporation, as the same may be amended from time to time, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Capital Stock on request and without charge. Requests for such a copy may be directed to the Secretary of the Corporation at its principal office.

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(b)

Each certificate representing shares of Class B Common Stock, if certificated, or any written statement of information in lieu of a certificate, if shares of Class B Common Stock are uncertificated, shall bear substantially the following legends:

The shares represented by this Certificate are subject to restrictions on Beneficial Ownership and Constructive Ownership and Transfer for the purpose, among others, of the Corporation’s maintenance of its qualification as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”). Subject to certain further restrictions and except as expressly provided in the Corporation’s charter, (i) no Person may Beneficially Own or Constructively Own shares of Common Stock (as defined in the charter of the Corporation, which includes Class A Common Stock and Class B Common Stock) in excess of 9.8% (in value or number of shares, whichever is more restrictive) of the outstanding shares of Common Stock unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable); (ii) no Person may Beneficially Own or Constructively Own shares of Capital Stock in excess of 9.8% (in value or number of shares, whichever is more restrictive) of the total outstanding shares of Capital Stock, unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable); (iii) no Person may Beneficially Own or Constructively Own Capital Stock that would result in the Corporation being “closely held” under Section 856(h) of the Code (without regard to whether the ownership interest is held during the last half of a taxable year) or otherwise cause the Corporation to fail to qualify as a REIT; (iv) no Person may Beneficially Own or Constructively Own shares of Capital Stock to the extent that such ownership would result in the Corporation owning (directly or indirectly) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation (either directly or indirectly through one or more partnerships or limited liability companies) from such tenant for the taxable year of the Corporation during which such determination is being made would reasonably be expected to equal or exceed the lesser of (a) one percent (1%) of the Corporation’s gross income (as determined for purposes of Section 856(c) of the Code), or (b) an amount that would cause the Corporation to fail to satisfy any of the gross income requirements of Section 856(c) of the Code; and (v) any Transfer of shares of Capital Stock that, if effective, would result in the Capital Stock being beneficially owned by less

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than 100 persons (for purposes of Section 856(a)(5) of the Code) shall be void ab initio, and the intended transferee shall acquire no rights in such shares of Capital Stock. Any Person who Beneficially Owns or Constructively Owns or attempts to Beneficially Own or Constructively Own shares of Capital Stock which causes or will cause a Person to Beneficially Own or Constructively Own shares of Capital Stock in excess or in violation of the above limitations must immediately notify the Corporation in writing, or, in the case of such a proposed or attempted transaction, give at least 15 days prior written notice. If any of the restrictions on transfer or ownership as set forth in (i) through (iv) above are violated, the shares of Capital Stock in excess or in violation of such limitations will be automatically transferred to a Trustee of a Trust for the benefit of one or more Charitable Beneficiaries. In addition, the Corporation may redeem shares upon the terms and conditions specified by the Board of Directors in its sole discretion if the Board of Directors determines that ownership or a Transfer or other event may violate the restrictions described above. Furthermore, upon the occurrence of certain events, attempted Transfers in violation of the restrictions described in (i) through (iv) above may be void ab initio.

If a Qualified Transferee of OP Units (the “first Qualified Transferee”) Transfers OP Units (the “subject OP Units”) held by the first Qualified Transferee other than to the initial holder of the subject OP Units (the “initial Transferor”) or to another Qualified Transferee of the initial Transferor, one share of Class B Common Stock held by the first Qualified Transferee shall, upon such Transfer, automatically convert into one share of Class A Common Stock for every 49 OP Units Transferred by such Person (rounding up to the nearest 49). If the first Qualified Transferee does not hold a sufficient number of shares of Class B Common Stock to be converted into shares of Class A Common Stock in accordance with the preceding sentence, then a number of shares of Class B Common Stock equal to such deficiency held by the initial Transferor (or, if the initial Transferor does not hold sufficient shares of Class B

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Common Stock, (i) one or more Qualified Transferees of the initial Transferor to which the initial Transferor has Transferred shares of Class B Common Stock or (ii) one or more Qualified Transferees of the Qualified Transferees referred to in subclause (i) above) shall automatically convert into one share of Class A Common Stock for every 49 OP Units Transferred by such Person (rounding up to the nearest 49). Immediately prior to any Transfer of Class B Common Stock other than to a Qualified Transferee, shares of Class B Common Stock subject to Transfer shall automatically convert into an equal number of shares of Class A Common Stock.

All capitalized terms in these legends have the meanings defined in the charter of the Corporation, as the same may be amended from time to time, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Capital Stock on request and without charge. Requests for such a copy may be directed to the Secretary of the Corporation at its principal office.

Instead of the foregoing legends, the certificate or written statement of information delivered in lieu of a certificate, if any, may state that the Corporation will furnish a full statement about certain restrictions on transferability to a stockholder on request and without charge.

Section 7.3 Transfer of Capital Stock in Trust .

Section 7.3.1 Ownership in Trust . Upon any purported Transfer or other event described in Section 7.2.1(b) that would result in a transfer of shares of Capital Stock to a Trust, such shares of Capital Stock shall be deemed to have been transferred to the Trustee as trustee of a Trust for the exclusive benefit of one or more Charitable Beneficiaries. Such transfer to the Trustee shall be deemed to be effective as of the close of business on the Business Day prior to the purported Transfer or other event that results in the transfer to the Trust pursuant to Section 7.2.1(b). The Trustee shall be appointed by the Corporation and shall be a Person unaffiliated with the Corporation and any Prohibited Owner. Each Charitable Beneficiary shall be designated by the Corporation as provided in Section 7.3.6.

Section 7.3.2 Status of Shares Held by the Trustee . Shares of Capital Stock held by the Trustee shall be issued and outstanding shares of Capital Stock. The Prohibited Owner shall have no rights in the shares held by the Trustee. The Prohibited Owner shall not benefit economically from ownership of any shares held in trust by the Trustee, shall have no rights to dividends or other distributions and shall not possess any rights to vote or other rights attributable to the shares held in the Trust. The Prohibited Owner shall have no claim, cause of action or any other recourse whatsoever against the purported transferor of such Capital Stock.

Section 7.3.3 Dividend and Voting Rights . The Trustee shall have all voting rights and rights to dividends or other distributions with respect to shares of Capital Stock held in the Trust, which rights shall be exercised for the exclusive benefit of the Charitable Beneficiary. Any

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dividend or other distribution paid prior to the discovery by the Corporation that the shares of Capital Stock have been transferred to the Trustee shall be paid by the recipient of such dividend or other distribution to the Trustee upon demand and any dividend or other distribution authorized but unpaid shall be paid when due to the Trustee. Any dividend or other distribution so paid to the Trustee shall be held in trust for the Charitable Beneficiary. The Prohibited Owner shall have no voting rights with respect to shares held in the Trust and, subject to Maryland law, effective as of the date that the shares of Capital Stock have been transferred to the Trustee, the Trustee shall have the authority (at the Trustee’s sole discretion) (i) to rescind as void any vote cast by a Prohibited Owner prior to the discovery by the Corporation that the shares of Capital Stock have been transferred to the Trustee and (ii) to recast such vote in accordance with the desires of the Trustee acting for the benefit of the Charitable Beneficiary; provided , however , that if the Corporation has already taken irreversible corporate action, then the Trustee shall not have the authority to rescind and recast such vote. Notwithstanding the provisions of this Article VII, until the Corporation has received notification that shares of Capital Stock have been transferred into a Trust, the Corporation shall be entitled to rely on its share transfer and other stockholder records for purposes of preparing lists of stockholders entitled to vote at meetings, determining the validity and authority of proxies and otherwise conducting votes of stockholders.

Section 7.3.4 Sale of Shares by Trustee . Within 20 days of receiving notice from the Corporation that shares of Capital Stock have been transferred to the Trust, the Trustee of the Trust shall sell the shares held in the Trust to a person, designated by the Trustee, whose ownership of the shares will not violate the ownership limitations set forth in Section 7.2.1(a). Upon such sale, the interest of the Charitable Beneficiary in the shares sold shall terminate and the Trustee shall distribute the net proceeds of the sale to the Prohibited Owner and to the Charitable Beneficiary as provided in this Section 7.3.4. The Prohibited Owner shall receive the lesser of (1) the price paid by the Prohibited Owner for the shares or, if the Prohibited Owner did not give value for the shares in connection with the event causing the shares to be held in the Trust (e.g., in the case of a gift, devise or other such transaction), the Market Price of the shares on the day of the event causing the shares to be held in the Trust and (2) the price per share received by the Trustee (net of any commissions and other expenses of sale) from the sale or other disposition of the shares held in the Trust. The Trustee shall reduce the amount payable to the Prohibited Owner by the amount of dividends and other distributions which have been paid to the Prohibited Owner and are owed by the Prohibited Owner to the Trustee pursuant to Section 7.3.3 of this Article VII. Any net sales proceeds in excess of the amount payable to the Prohibited Owner shall be immediately paid to the Charitable Beneficiary. If, prior to the discovery by the Corporation that shares of Capital Stock have been transferred to the Trustee, such shares are sold by a Prohibited Owner, then (i) such shares shall be deemed to have been sold on behalf of the Trust and (ii) to the extent that the Prohibited Owner received an amount for such shares that exceeds the amount that such Prohibited Owner was entitled to receive pursuant to this Section 7.3.4, such excess shall be paid to the Trustee upon demand.

Section 7.3.5 Purchase Right in Stock Transferred to the Trustee . Shares of Capital Stock transferred to the Trustee shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that resulted in such Transfer to the Trust or, if the event that resulted in the Transfer to the Trust did not involve a purchase of such shares at Market Price (e.g., in the case of a devise, gift or other such transaction), the Market Price of such shares on the day of the event that resulted in

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the Transfer of such shares to the Trust and (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer until the Trustee has sold, pursuant to Section 7.3.4, the shares of Capital Stock held in the Trust. Upon such a sale to the Corporation, the interest of the Charitable Beneficiary in the shares sold shall terminate and the Trustee shall distribute the net proceeds of the sale to the Prohibited Owner, provided , however , that the Trustee may reduce the amount payable to the Prohibited Owner by the amount of dividends and other distributions which have been paid to the Prohibited Owner and are owed by the Prohibited Owner to the Trustee pursuant to Section 7.3.3 of this Article VII. To the extent that the Prohibited Owner would receive an amount for such shares that exceeds the amount that such Prohibited Owner would have been entitled to receive had the Trustee sold the shares held in the Trust pursuant to Section 7.3.4, such excess shall be retained by the Trustee.

Section 7.3.6 Designation of Charitable Beneficiaries . By written notice to the Trustee, the Corporation shall designate one or more nonprofit organizations to be the Charitable Beneficiary of the interest in the Trust such that the shares of Capital Stock held in the Trust would not violate the restrictions set forth in Section 7.2.1(a) in the hands of such Charitable Beneficiary. Neither the failure of the Corporation to make such designation nor the failure of the Corporation to appoint the Trustee before the automatic transfer provided for in Section 7.2.1(b)(i) shall make such transfer ineffective, provided that the Corporation thereafter makes such designation and appointment. The designation of a nonprofit organization as a Charitable Beneficiary shall not entitle such nonprofit organization to serve in such capacity and the Corporation may, in its sole discretion, designate a different nonprofit organization as the Charitable Beneficiary at any time and for any or no reason. Any determination by the Corporation with respect to the application of this Article VII shall be binding on each Charitable Beneficiary.

Section 7.4 NYSE Transactions . Nothing in this Article VII shall preclude the settlement of any transaction entered into through the facilities of the NYSE or any other national securities exchange or automated inter-dealer quotation system. The fact that the settlement of any transaction occurs shall not negate the effect of any other provision of this Article VII and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in this Article VII.

Section 7.5 Enforcement . The Corporation is authorized specifically to seek equitable relief, including injunctive relief, to enforce the provisions of this Article VII.

Section 7.6 Non-Waiver . No delay or failure on the part of the Corporation or the Board of Directors in exercising any right hereunder shall operate as a waiver of any right of the Corporation or the Board of Directors, as the case may be, except to the extent specifically waived in writing.

Section 7.7 Severability . If any provision of this Article VII or any application of any such provision is determined to be invalid by any federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provisions shall be affected only to the extent necessary to comply with the determination of such court.

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ARTICLE VIII

Amendments

The Corporation reserves the right from time to time to make any amendment to the Charter, now or hereafter authorized by law, including any amendment altering the terms or contract rights, as expressly set forth in the Charter, of any shares of outstanding stock. All rights and powers conferred by the Charter on stockholders, directors and officers are granted subject to this reservation. Except for amendments to Section 5.8, Article VII or the next sentence of the Charter and except for those amendments permitted to be made without stockholder approval under Maryland law or by specific provision in the Charter or as necessary to qualify as or maintain qualification as a REIT, any amendment to the Charter shall be valid only if declared advisable by the Board of Directors and approved by the affirmative vote of holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter. Any amendment to Section 5.8, Article VII or to this sentence of the Charter shall be valid only if declared advisable by the Board of Directors and approved by the affirmative vote of holders of shares entitled to cast at least two-thirds of all the votes entitled to be cast on the matter.

ARTICLE IX

Limitation of Liability

To the maximum extent that Maryland law in effect from time to time permits limitation of the liability of directors and officers of a corporation, no present or former director or officer of the Corporation shall be liable to the Corporation or its stockholders for money damages. Neither the amendment nor repeal of this Article IX, nor the adoption or amendment of any other provision of the Charter or Bylaws inconsistent with this Article IX, shall apply to or affect in any respect the applicability of the preceding sentence with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption.

THIRD: The amendment to and restatement of the Charter as hereinabove set forth have been duly advised by the Board of Directors and approved by the stockholders of the Corporation as required by law.

FOURTH: The current address of the principal office of the Corporation is as set forth in Article III of the foregoing amendment and restatement of the Charter.

FIFTH: The name and address of the Corporation’s current resident agent are as set forth in Article IV of the foregoing amendment and restatement of the Charter.

SIXTH: The number of directors of the Corporation and the names of those currently in office are as set forth in Article V of the foregoing amendment and restatement of the Charter.

SEVENTH: The total number of shares of stock which the Corporation had authority to issue immediately prior to the foregoing amendment and restatement of the Charter was 1,000 shares of Class A Common Stock, $0.01 par value per share. The aggregate par value of all shares of stock having par value was $10.00.

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EIGHTH: The total number of shares of stock which the Corporation has authority to issue pursuant to the foregoing amendment and restatement of the Charter is 500,000,000, consisting of 400,000,000 shares of Class A Common Stock, $0.01 par value per share, 50,000,000 shares of Class B Common Stock, $0.01 par value per share, and 50,000,000 shares of Preferred Stock, $0.01 par value per share. The aggregate par value of all authorized shares of stock having par value is $5,000,000.

NINTH: The undersigned acknowledges these Articles of Amendment and Restatement to be the corporate act of the Corporation and as to all matters or facts required to be verified under oath, the undersigned acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

[S IGNATURE P AGE F OLLOWS ]

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IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment and Restatement to be signed in its name and on its behalf by its Chairman, Chief Executive Officer and President and attested to by its Secretary on this 27th day of September 2013.


ATTEST:	EMPIRE STATE REALTY TRUST, INC.

/s/ Thomas N. Keltner	By:	/s/ Anthony E. Malkin

	(SEAL)

THOMAS N. KELTNER	ANTHONY E. MALKIN

Executive Vice President, General Counsel and Secretary	Chairman, Chief Executive Officer and President

[ Signature Page to Articles of Amendment and Restatement ]

Exhibit 5.1

CLIFFORD CHANCE US LLP

31 WEST 52ND STREET

NEW YORK, NY 10019-6131

TEL +1 212 878 8000

FAX +1 212 878 8375

www.cliffordchance.com

September 27, 2013

Empire State Realty Trust, Inc.

One Grand Central Place

60 East 42 ^nd Street

New York, New York 10165

Ladies and Gentlemen:

We have acted as counsel to Empire State Realty Trust, Inc., a Maryland corporation (the “Company”), in connection with the proposed offer and sale by the Company of up to 82,225,000 shares (the “Shares”) of its Class A common stock, par value $0.01 per share (the “Common Stock”), including up to 10,725,000 shares of Common Stock that may be sold pursuant to the underwriters’ option to purchase additional shares. The Common Stock is being sold pursuant to the Company’s Registration Statement on Form S-11 (File No. 333-179485) (together with any amendments thereto, the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).

In rendering the opinion expressed below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, documents, certificates, resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof (the “Resolutions”) and other instruments as in our judgment are necessary or appropriate. As to factual matters relevant to the opinion set forth below, we have, with your permission, relied upon certificates of officers of the Company and public officials.

Based on the foregoing, and such other examination of law as we have deemed necessary, we are of the opinion that the Shares have been duly and validly authorized and, when issued and sold in the manner contemplated by the prospectus for the offering of the Shares included in the Registration Statement and the Resolutions, the Shares will be legally issued, fully paid and non-assessable.

The opinion set forth in this letter relates only to the General Corporation Law of the State of Maryland, and we express no opinion as to the laws of another jurisdiction and we assume no responsibility for the applicability or effect of the law of any other jurisdiction.

We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption “Legal Matters” in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ CLIFFORD CHANCE US LLP

Exhibit 8.1

CLIFFORD CHANCE US LLP

31 WEST 52ND STREET

NEW YORK, NY 10019-6131

TEL +1 212 878 8000

FAX +1 212 878 8375

www.cliffordchance.com

September 27, 2013

Empire State Realty Trust, Inc.

One Grand Central Place

60 East 42nd Street

New York, New York 10165

Re:	REIT Qualification of Empire State Realty Trust, Inc.

Ladies and Gentlemen:

We have acted as counsel to Empire State Realty Trust, Inc., a Maryland corporation (the “Company”), in connection with the Company’s registration statement on Form S-11 (Registration No. 333-179485) filed by the Company with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (together with any amendments thereto, the “Registration Statement”). Except as otherwise indicated, capitalized terms used in this opinion letter have the meanings given to them in the Registration Statement.

The opinions set forth in this letter are based on relevant provisions of the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations promulgated thereunder, interpretations of the foregoing as expressed in court decisions, legislative history, and existing administrative rulings and practices of the Internal Revenue Service (“IRS”) (including its practices and policies 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 of the date hereof. These provisions and interpretations are subject to change, which may or may not be retroactive in effect, and which may result in modifications of our opinions. Our opinions do not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction, or of a contrary determination by the IRS or the Treasury Department in regulations or rulings issued in the future. In this regard, an opinion of counsel with respect to an issue represents counsel’s best professional judgment with respect to the outcome on the merits with respect to such issue, if such issue were to be litigated, but an opinion is not binding on the IRS or the courts and is not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position asserted by the IRS.

In rendering the opinions expressed herein, we have examined and, with your permission, relied on the following items:

1.	the Articles of Amendment and Restatement of the Company;

2.	the bylaws of the Company;

3.	a Certificate of Representations, (the “Certificate of Representations”) dated as of the date hereof, provided to us by the Company and Empire State Realty OP, L.P., a Delaware limited partnership (the “Operating Partnership”);

CLIFFORD CHANCE US LLP

4.	the Registration Statement;

5.	the Company’s registration statement filed by the Company with the SEC on Form S-4 (Registration No. 333-179486) as of the date hereof (the “S-4”);

6.	the Amended and Restated Agreement of Limited Partnership of the Operating Partnership;

7.	the private letter ruling issued to the Company by the IRS on August 16, 2011; and

8.	such other documents, records and instruments as we have deemed necessary in order to enable us to render the opinion referred to in this letter.

In our examination of the foregoing documents, we have assumed, with your consent, that (i) all documents reviewed by us are original documents, or true and accurate copies of original documents and have not been subsequently amended, (ii) the signatures of each original document are genuine, (iii) all representations and statements set forth in such documents are true and correct, (iv) all obligations imposed by any such documents on the parties thereto have been performed or satisfied in accordance with their terms, and (v) the Company and the Operating Partnership at all times will operate in accordance with the methods of operation described in their organizational documents, the Registration Statement, the S-4 and the Certificate of Representations and will complete the consolidation as contemplated by the Registration Statement and S-4 prior to December 31, 2013. As of the date hereof, we are not aware of any facts inconsistent with the statements in the organizational documents, the Registration Statement, the S-4 or the Certificate of Representations.

For purposes of rendering the opinions stated below, we have assumed, with your consent, the accuracy of the representations contained in the Certificate of Representations provided to us by the Company and the Operating Partnership, and that each representation contained in such Certificate of Representations to the best of the Company’s or the Operating Partnership’s knowledge or belief is accurate and complete without regard to such qualification as to the best of such entity’s knowledge or belief. These representations generally relate to the organization and method of operation of the Company and the Operating Partnership.

Based upon, subject to, and limited by the assumptions and qualifications set forth herein, we are of the opinion that:

Commencing with its taxable year ending December 31, 2013, the Company will be organized in conformity with the requirements for qualification and taxation as a real estate investment trust (a “REIT”) under the Code, and its proposed method of operation as described in the Registration Statement and as set forth in the Certificate of Representations will enable the Company to meet the requirements for qualification and taxation as a REIT under the Code; and

2.	The statements in the Registration Statement under the caption “U.S. Federal Income Tax Considerations,” to the extent they describe applicable U.S. federal income tax law, are correct in all material respects.

The opinions set forth above represent our conclusions based upon the documents, facts, representations and assumptions referred to above. Any material amendments to such documents, changes in any significant facts or inaccuracy of such representations or assumptions could affect the opinions referred to

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CLIFFORD CHANCE US LLP

herein. Moreover, the Company’s qualification as a REIT depends upon the ability of the Company to meet for each taxable year, through actual annual operating results, requirements under the Code regarding gross income, assets, distributions and diversity of stock ownership. We have not undertaken to review the Company’s compliance with these requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of the Company’s operations for any single taxable year have satisfied or will satisfy the tests necessary to qualify as a REIT under the Code. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities as counsel, we have not undertaken an independent investigation of all of the facts referred to in this letter or the Certificate of Representations.

The opinions set forth in this letter are: (i) limited to those matters expressly covered and no opinion is expressed in respect of any other matter; (ii) as of the date hereof; and (iii) rendered by us at the request of the Company. We hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement and to the references therein to us. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the SEC promulgated thereunder.

Very truly yours,

/s/ Clifford Chance US LLP

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Exhibit 10.4

FORM OF PERFORMANCE-BASED VESTING RESTRICTED STOCK AGREEMENT

UNDER THE

EMPIRE STATE REALTY TRUST, INC.

EMPIRE STATE REALTY OP, L.P.

2013 EQUITY INCENTIVE PLAN

This RESTRICTED STOCK AGREEMENT (this “Agreement”), is entered into on (the “Grant Date”), by and between, Empire State Realty Trust, Inc., a Maryland corporation (the “Company”), and (“Grantee”). Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings set forth in the Empire State Realty Trust, Inc. and Empire State Realty OP, L.P. 2013 Equity Incentive Plan (the “Plan”).

1. Number of Shares; Restrictions . The Company hereby grants Grantee an Award of shares of Restricted Stock (the “Restricted Shares”) pursuant to the terms of this Agreement and the provisions of the Plan. Fifty percent (50%) of the Restricted Shares (rounded down to the nearest whole share) shall vest based upon the achievement of the Absolute TSR Percentage (the “Absolute TSR Award”), thirty percent (30%) of the Restricted Shares (rounded down to the nearest whole share) shall vest based upon the achievement of NAREIT Index Relative Performance (the “NAREIT Relative Performance Award”), and the remainder of the Restricted Shares shall vest based upon the achievement of MSCI Index Relative Performance (the “MSCI Relative Performance Award”). The Restricted Shares may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of and shall be subject to a risk of forfeiture until the lapse of the restrictions as set forth in this Agreement.

2. Definitions . The following terms have the following meanings:

(a) “ Absolute TSR Percentage ” means the compounded annual growth rate, expressed as a percentage (rounded to the nearest tenth of a percent (0.1%)), in the value per share of Stock during the Performance Period due to the appreciation in the price per share of Stock and dividends declared during the Performance Period, assuming dividends are reinvested. Where “D” is the amount of dividends paid to a shareholder of record with respect to one share of Stock during the Performance Period and “N” is the number of full calendar years completed during the Performance Period the Absolute TSR Percentage is calculated as follows:

LOGO

(a) “ Absolute TSR Vesting Percentage ” means a function of the Absolute TSR Percentage achieved by the Company during the Performance Period, and shall be determined as follows:


	Absolute TSR Percentage			Absolute TSR Vesting Percentage
		[	] %		[	] %
“Threshold Level”		[	] %		[	] %
“Target Level”		[	] %		[	] %
“Maximum Level”		[	] %		[	] %

In the event that the Absolute TSR Percentage falls between [ ] % and [ ] %, the Absolute TSR Vesting Percentage shall be determined using a straight line linear interpolation between [ ] % and [ ] % and in the event that the Absolute TSR Percentage falls between [ ] % and [ ] %, the Absolute TSR Vesting Percentage shall be determined using a straight line linear interpolation between [ ] % and [ ] %

(b) “ Beginning Share Price ” means the per share of Stock price to the public as specified on the cover page of the Initial Public Offering final prospectus.

(c) “ Earned Restricted Shares ” means the sum of the (i) Earned Absolute TSR Shares, (ii) Earned MSCI Relative Performance Shares, and (iii) Earned NAREIT Relative Performance Shares.

(d) “ Earned Absolute TSR Shares ” (i) the number of Restricted Shares subject to the Absolute TSR Award granted herein, multiplied by (ii) the Absolute TSR Vesting Percentage.

(e) “ Earned MSCI Relative Performance Shares ” means (i) the number of Restricted Shares subject to the MSCI Relative Performance Award granted herein, multiplied by (ii) the MSCI Index Relative Performance Vesting Percentage.

(f) “ Earned NAREIT Relative Performance Shares ” means (i) the number of Restricted Shares subject to the NAREIT Relative Performance Award granted herein, multiplied by (ii) the NAREIT Index Relative Performance Vesting Percentage.

(g) “ Ending Share Price ” means the average closing price per share of Stock during the twenty (20) consecutive trading days immediately preceding the expiration of the Performance Period.

(h) “ MSCI REIT Index ” means the MSCI US REIT Index, or, in the event such index is discontinued or its methodology is significantly changed, a comparable index selected by the Committee in good faith.

(i) “ MSCI Index Relative Performance ” means the Absolute TSR Percentage less the MSCI Index TSR Percentage, expressed in basis points.

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(j) “ MSCI Index Relative Performance Vesting Percentage ” means a function of the MSCI Index Relative Performance during the Performance Period, and shall be determined as follows:


	MSCI Index Relative Performance	MSCI Index Relative Performance Vesting Percentage
	< -300 basis points		0.0	%
“Threshold Level”	-300 basis points		25.0	%
“Target Level”	+100 basis points		50.0	%
“Maximum Level”	> +600 basis points		100.0	%

In the event that the MSCI Index Relative Performance falls between -300 basis points and +100 basis points, the MSCI Relative Performance Vesting Percentage shall be determined using a straight line linear interpolation between 25.0% and 50.0% and in the event that the MSCI Index Relative Performance falls between +100 basis points and +600 basis points, the MSCI Relative Performance Vesting Percentage shall be determined using a straight line linear interpolation between 50.0% and 100.0%.

(k) “ MSCI Index TSR Percentage ” means the compounded annual growth rate, expressed as a percentage (rounded to the nearest tenth of a percent (0.1%)), in the value of the MSCI REIT Index during the Performance Period, calculated in a manner consistent with Section 2(a) above from information publicly available.

(l) “ NAREIT Index ” means the FTSE NAREIT Equity Office Index, or, in the event such index is discontinued or its methodology is significantly changed, a comparable index selected by the Committee in good faith.

(m) “ NAREIT Index Relative Performance ” means the Absolute TSR Percentage less the NAREIT Index TSR Percentage, expressed in basis points.

(n) “ NAREIT Index Relative Performance Vesting Percentage ” means a function of the NAREIT Index Relative Performance during the Performance Period, and shall be determined as follows:


	NAREIT Index Relative Performance	NAREIT Index Relative Performance Vesting Percentage
	< -250 basis points		0.0	%
“Threshold Level”	-250 basis points		25.0	%
“Target Level”	+50 basis points		50.0	%
“Maximum Level”	> +450 basis points		100.0	%

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In the event that the NAREIT Index Relative Performance falls between -250 basis points and +50 basis points, the NAREIT Relative Performance Vesting Percentage shall be determined using a straight line linear interpolation between 25.0% and 50.0% and in the event that the NAREIT Index Relative Performance falls between +50 basis points and +450 basis points, the NAREIT Relative Performance Vesting Percentage shall be determined using a straight line linear interpolation between 50.0% and 100.0%

(o) “ NAREIT Index TSR Percentage ” means the compounded annual growth rate, expressed as a percentage (rounded to the nearest tenth of a percent (0.1%)), in the value of the NAREIT Index during the Performance Period, calculated in a manner consistent with Section 2(a) above from information publicly available.

(p) “ Performance Period ” means the period commencing, except as provided in Section 4(b) below, on the Initial Public Offering and ending on the earlier of (i) the third (3 ^rd ) anniversary of the Initial Public Offering and (ii) the date of a Change in Control.

(q) “ Retirement Eligibility Date ” means the later of (i) the date Grantee attains the age of 60 and (ii) the date on which Grantee has first completed ten years of continuous service with the Company or its Affiliates, any predecessor of the Company or its Affiliates (including, without limitation Malkin Holdings LLC), or any entity acquired by the predecessor of the Company in connection with the consolidation of certain office and retail properties in Manhattan and the greater New York metropolitan area and management businesses supervised by Malkin Holdings LLC into Empire State Realty Trust OP, L.P. and/or the Company.

3. Lapse of Restrictions .

(a) Following the completion of the Performance Period, the Committee shall determine the Company’s Absolute TSR Percentage and will certify the level of achievement with respect to the Absolute TSR Vesting Percentage, MSCI Index Relative Performance Vesting Percentage, and the NAREIT Index Relative Performance Vesting Percentage and the portion of the Restricted Shares granted herein that have become Earned Restricted Shares. Following the Committee’s determination, Restricted Shares granted herein which have not become Earned Restricted Shares shall be immediately forfeited to the Company without payment of any consideration by the Company or any of its Affiliates, and neither Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such forfeited Restricted Shares.

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(b) The restrictions set forth herein with respect to the Earned Restricted Shares (if any) shall lapse and the Earned Restricted Shares shall vest as to fifty percent (50%) of the Earned Restricted Shares, rounded down to the nearest whole Earned Restricted Share, on the third (3 ^rd ) anniversary of the Grant Date and as to the remainder of the Earned Restricted Shares on the fourth (4 ^th ) anniversary of the Grant Date. Notwithstanding the foregoing, except as provided in Section 4 below, the Earned Restricted Shares shall not vest unless Grantee continues to be employed by the Company or any of its Affiliates through the applicable vesting date.

4. Termination of Employment .

(a) In the event of Grantee’s Termination for any reason, except as provided in (b) below, all vesting with respect to the Restricted Shares (whether or not such Restricted Shares are Earned Restricted Shares) shall immediately cease, and all Restricted Shares that have not vested at that time will be forfeited to the Company without payment of any consideration by the Company or any of its Affiliates, and neither Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such Restricted Shares.

(b) In the event Grantee’s Termination is a result of (i) death, (ii) Disability, ((iii) a termination without Cause by the Company or its Affiliates, (iv) a voluntary termination by Grantee that follows Grantee’s Retirement Eligibility Date, [or (v) a termination by Grantee with Good Reason (as defined in Grantee’s Participant Agreement)]:

(i) If such Termination occurs following the completion of the Performance Period, any restrictions on the Earned Restricted Shares shall lapse and the Earned Restricted Shares, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination; and

(ii) If such Termination occurs prior to the expiration of the Performance Period, (A) the end date of the Performance Period shall be the date immediately prior to the Termination and the number of Restricted Shares which become Earned Restricted Shares shall be determined as of such date based on the Absolute TSR Vesting Percentage, MSCI Index Relative Performance Vesting Percentage, and NAREIT Index Relative Performance Vesting Percentage during such shortened Performance Period, provided that “N” shall be the number of full and/or partial calendar years completed during the Performance Period ( e.g. , “N” shall be 2.5 if the termination occurs at the end of the two-year and six-months anniversary of the Initial Public Offering), and (B) any restrictions and conditions on the Restricted Shares that become Earned Restricted Shares as of the Termination shall lapse and the number of Earned Restricted Shares, unless earlier terminated or terminated, that become vested as of such date of Termination shall be determined by multiplying the number of Earned Restricted Shares by a fraction, the numerator of which is the number of days in the shortened Performance Period and the denominator of which is 1,095.

(c) Notwithstanding any other provision hereof, if Grantee is a party to an effective Participant Agreement with the Company, then any restrictions and conditions shall also lapse if and as may otherwise be required by such Participant Agreement; and nothing herein shall limit any rights Grantee may otherwise have under such Participant Agreement.

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5. Rights of Stockholder . From and after the Grant Date and for so long as the Restricted Shares are held by or for the benefit of Grantee, Grantee shall have all the rights of a stockholder of the Company with respect to the Restricted Shares, including but not limited to the right to (i) receive any and all dividends or other distributions paid with respect to the Restricted Shares of which Grantee is the record owner on the record date for such dividend or other distribution, and (ii) vote any Restricted Shares of which Grantee is the record owner on the record date for such vote; provided , that , any property (other than cash) distributed with respect to a Restricted Share (the “associated share”) acquired hereunder, including without limitation a distribution of a share of Stock by reason of a stock dividend, stock split or otherwise, or a distribution of other securities with respect to an associate share, shall be subject to the restrictions of this Agreement and the Plan in the same manner and for so long as the associated share remains subject to such restrictions, and shall promptly be forfeited if and when the associated share is forfeited; and further provided , that , any cash distribution or dividend with respect to an associated share shall be placed in escrow or similar account maintained by the Company and shall be paid to Grantee (subject to all applicable tax withholding), without adjustment for interest, as soon as practicable following the date the associated share vests. References in this Agreement to Restricted Shares shall refer, mutatis mutandis , to any such restricted amounts.

6. Certificates . Any certificates issued in respect of the Restricted Shares shall be held by the Company, and any such certificate shall contain a legend substantially in the following form:

THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING FORFEITURE) OF THE EMPIRE STATE REALTY TRUST, INC. AND EMPIRE STATE REALTY OP, L.P. 2013 EQUITY INCENTIVE PLAN AND A RESTRICTED STOCK AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND EMPIRE STATE REALTY TRUST, INC. COPIES OF SUCH PLAN AND AGREEMENT ARE ON FILE IN THE OFFICES OF EMPIRE STATE REALTY TRUST, INC.

As soon as practicable following the vesting of any Restricted Shares granted herein, if applicable, the Company shall cause a certificate or certificates covering such vested Restricted Shares, without the aforesaid legend, to be issued and delivered to Grantee. If any Restricted Shares are held in book-entry form, the Company may take such steps as it deems necessary or appropriate to record and manifest the restrictions applicable to such Restricted Shares. Notwithstanding the foregoing, any certificates representing vested Restricted Shares delivered to Grantee shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities Exchange Commission, any stock exchange upon which such shares are listed, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions as the Committee deems appropriate.

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7. Certain Tax Matters . Grantee expressly agrees and acknowledges the following:

(a) Grantee covenants and agrees that he or she will not make a so-called “83(b) election” with respect to the Restricted Shares. In the event Grantee does make a so-called “83(b) election, all outstanding Restricted Shares shall be immediately forfeited to the Company without payment of any consideration by the Company or any of its Affiliates, and neither Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such forfeited Restricted Shares.

(b) The award or vesting of the Restricted Shares acquired hereunder, and the payment of dividends with respect to such Restricted Shares, may give rise to “wages” subject to withholding. Grantee expressly acknowledges and agrees that his or her rights hereunder are subject to his or her promptly satisfying all taxes required to be withheld in connection with this Award. Grantee may elect to have such tax withholding satisfied, in whole or in part, by (i) authorizing the Company to withhold a number of shares of Stock to be issued pursuant to this Award with a Fair Market Value equal to the amount of the required withholding tax, (ii) transferring to the Company previously owned shares of Stock with a Fair Market Value equal to the amount of the required withholding tax, or (iii) in the event Grantee is an employee of the Company at the time such withholding tax is effected, by withholding from the cash compensation payable to Grantee as of such date, equal to the amount of required withholding tax; provided , however , that the aggregate Fair Market Value of the number of shares of Stock that may be used to satisfy tax withholding requirements may not exceed the minimum statutorily required withholding amount with respect to such Award.

8. Miscellaneous .

(a) Incorporation of the Plan . This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof.

(b) Clawback . This Award is subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time.

(c) Waiver . The failure of Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.

(d) No Right to Continued Employment . Neither the Plan nor this Agreement will give Grantee any right to continue to be in the employ of the Company or any of its Affiliates, affect the right of the Company or any of its Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her employment at any time.

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(e) Assignment and Transfer . Except as the Committee may otherwise permit pursuant to the Plan, the rights and interests of Grantee under this Agreement may not be sold, assigned, encumbered, pledged, or otherwise transferred except in the event of the death of Grantee, by will or by the laws of descent and distribution. In the event of any attempt by Grantee to sell, assign, encumber, pledge or otherwise transfer its rights and interests hereunder, except as provided in this Agreement, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company may require Grantee to forfeit the Restricted Shares by notice to Grantee, and the Restricted Shares and all rights hereunder shall thereupon become null and void. The rights and protections of the Company hereunder shall extend to any successors or assigns of the Company.

(f) Headings . Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.

(g) Severability . In the event that one or more provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.

(h) Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile or electronic submission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

(i) Notices . Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to Grantee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing.

(j) Consent to Electronic Delivery . Grantee agrees that the Company may deliver by email all documents relating to the Plan or the Restricted Shares (including without limitation, a copy of the Plan) and all other documents that the Company is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities Exchange Commission). Grantee also agrees that the Company may deliver these documents by posting them on a website maintained by the Company or by a third-party under contract with the Company. If the Company posts these documents on a website, it shall notify Grantee by email.

(k) Amendment . Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 19 thereof and that this Agreement may be amended or canceled by the Board or the Committee, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall materially impair Grantee’s rights under this Agreement without Grantee’s written consent.

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(l) Governing Law . This Agreement and all claims or disputes arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by, and construed in accordance with, the laws of the State of Maryland, applied without regard to conflict of law principles or rules that would cause the application of the domestic substantive laws of any other jurisdiction.

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


EMPIRE STATE REALTY TRUST, INC.

By:
Name:
Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.



Dated:
				[NAME]

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Exhibit 10.5

FORM OF TIME-BASED VESTING RESTRICTED STOCK AGREEMENT

UNDER THE EMPIRE STATE REALTY TRUST, INC.

EMPIRE STATE REALTY OP, L.P.

2013 EQUITY INCENTIVE PLAN

1. Number of Shares; Restrictions . The Company hereby grants Grantee an Award of shares of Restricted Stock (the “Restricted Shares”) pursuant to the terms of this Agreement and the provisions of the Plan. The Restricted Shares may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of and shall be subject to a risk of forfeiture until the lapse of the restrictions as set forth in this Agreement.

2. Lapse of Restrictions . The restrictions set forth herein with respect to the Restricted Shares shall lapse and the Restricted Shares shall vest as to twenty-five percent (25%) of the Restricted Shares on the one (1) year anniversary of the Grant Date, and the remainder shall vest in substantially equal annual installments, rounded down to the nearest whole Restricted Share, on each annual anniversary of the Grant Date for a period of three (3) years thereafter; provided , that , with respect to the last such annual installment, the number of Restricted Shares that vest in the installment shall be such that Grantee will be fully vested in the total number of Restricted Shares granted hereunder as of the applicable annual anniversary. Notwithstanding the foregoing, except as provided in Section 3 below, the Restricted Shares shall not vest unless Grantee continues to be employed by the Company or any of its Affiliates through the applicable vesting date.

3. Termination of Employment .

(a) In the event of Grantee’s Termination for any reason, except as provided in (b) below, all vesting with respect to the Restricted Shares shall immediately cease, and all Restricted Shares that have not vested at that time will be forfeited to the Company without payment of any consideration by the Company or any of its Affiliates, and neither Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such Restricted Shares.

metropolitan area and management businesses supervised by Malkin Holdings LLC into Empire State Realty Trust OP, L.P. and/or the Company, [or (v) a termination by Grantee with Good Reason (as defined in Grantee’s Participant Agreement)]; any restrictions on the Restricted Shares shall lapse and the Restricted Shares, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination.

(c) Notwithstanding any other provision hereof, if Grantee is a party to an effective Participant Agreement with the Company, then the applicable period of forfeiture shall also end if and as may otherwise be required by such Participant Agreement; and nothing herein shall limit any rights Grantee may otherwise have under such Participant Agreement.

4. Rights of Stockholder . From and after the Grant Date and for so long as the Restricted Shares are held by or for the benefit of Grantee, Grantee shall have all the rights of a stockholder of the Company with respect to the Restricted Shares, including but not limited to the right to (i) receive any and all dividends or other distributions paid with respect to the Restricted Shares of which Grantee is the record owner on the record date for such dividend or other distribution, and (ii) vote any Restricted Shares of which Grantee is the record owner on the record date for such vote.

5. Certificates . Any certificates issued in respect of the Restricted Shares shall be held by the Company, and any such certificate shall contain a legend substantially in the following form:

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6. Certain Tax Matters . Grantee expressly agrees and acknowledges the following:

(a) Grantee has been advised to confer promptly with a professional tax advisor to consider whether Grantee should make a so-called “83(b) election” with respect to the Restricted Shares. Any such election, to be effective, must be made in accordance with the applicable regulations and filed with the Internal Revenue Service within thirty (30) days following the date this Award is granted, and Grantee must provide the Company with a copy of the 83(b) election. The Company has made no recommendation to Grantee with respect to the advisability of making an election.

7. Miscellaneous .

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


EMPIRE STATE REALTY TRUST, INC.

By:
Name:
Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.


Dated:
						[NAME]

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Exhibit 10.6

FORM OF PERFORMANCE-BASED VESTING LTIP UNIT VESTING AGREEMENT

UNDER THE

EMPIRE STATE REALTY TRUST, INC.

EMPIRE STATE REALTY OP, L.P.

2013 EQUITY INCENTIVE PLAN


Grantee:


No. of LTIP Units:


Grant Date:


Final Acceptance Date:

Pursuant to the Empire State Realty Trust, Inc. and Empire State Realty OP, L.P. 2013 Equity Incentive Plan (the “ Plan ”) and the Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated as of , 2013 (the “ Partnership Agreement ”), of Empire State Realty OP, L.P., a Delaware limited partnership (the “ Partnership ”), Empire State Realty Trust, Inc., a Maryland corporation and the general partner of the Partnership (the “ Company ”) hereby grants to Grantee named above an Other Equity-Based Award (as defined in the Plan, and referred to herein as an “ Award ”) in the form of, and by causing the Partnership to issue to Grantee named above, LTIP Units (as defined in the Partnership Agreement) having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the Partnership Agreement. Fifty percent (50%) of the LTIP Units (rounded down to the nearest whole LTIP Unit) shall vest based upon the achievement of the Absolute TSR Percentage (the “ Absolute TSR Award ”), thirty percent (30%) of the LTIP Units (rounded down to the nearest whole LTIP Unit) shall vest based upon the achievement of NAREIT Index Relative Performance (the “ NAREIT Relative Performance Award ”), and the remainder of the LTIP Units shall based upon the achievement of MSCI Index Relative Performance (the “ MSCI Relative Performance Award ”). If this LTIP Unit Vesting Agreement (this “ Agreement ”) is accepted prior to the Final Acceptance Date, Grantee shall receive the number of LTIP Units specified above as of the Grant Date, subject to the restrictions and conditions set forth herein, in the Plan and in the Partnership Agreement. All capitalized terms not otherwise defined herein shall have the same meanings as set forth in the Plan.

1. Acceptance of Agreement . Grantee shall have no rights with respect to this Agreement unless Grantee has accepted this Agreement prior to the close of business on the Final Acceptance Date specified above by (i) signing and delivering to the Partnership a copy of this Agreement and (ii) unless Grantee is already a Limited Partner (as defined in the Partnership Agreement), signing, as a Limited Partner, and delivering to the Partnership a counterpart signature page to the Partnership Agreement (attached hereto as Annex A ). If this Agreement is accepted by Grantee prior to the Final Acceptance Date, the Partnership Agreement shall be amended to reflect the issuance to Grantee of the LTIP Units so accepted. Thereupon, Grantee shall have all the rights of a Limited Partner of the Partnership with respect to the number of LTIP Units then issued to Grantee, as set forth in the Partnership Agreement, subject, however, to the restrictions and conditions specified in Section 2 below.

2. Definitions . The following terms have the following meanings:

LOGO

(a) “ Absolute TSR Vesting Percentage ” means a function of the Absolute TSR Percentage achieved by the Company during the Performance Period, and shall be determined as follows:


	Absolute TSR Percentage			Absolute TSR Vesting Percentage
		[	] %		[	] %
“Threshold Level”		[	] %		[	] %
“Target Level”		[	] %		[	] %
“Maximum Level”		[	] %		[	] %

(b) “ Beginning Share Price ” means the per share of Stock price to the public as specified on the cover page of the Initial Public Offering final prospectus.

(c) “ Earned LTIP Units ” means the sum of (i) Earned Absolute TSR LTIP Units, (ii) Earned MSCI Relative LTIP Units, and (iii) Earned NAREIT Relative Performance LTIP Units.

(d) “ Earned Absolute TSR LTIP Units ” means (i) the number of LTIP Units subject to the Absolute TSR Award granted herein, multiplied by (ii) the TSR Vesting Percentage.

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(e) “ Earned MSCI Relative Performance LTIP Units ” means (i) the number of LTIP Units subject to the MSCI Relative Performance Award granted herein, multiplied by (ii) the MSCI Index Relative Performance Vesting Percentage.

(f) “ Earned NAREIT Relative Performance LTIP Units ” means (i) the number of LTIP Units subject to the NAREIT Relative Performance Award granted herein, multiplied by (ii) the NAREIT Index Relative Performance Vesting Percentage.

(g) “ Ending Share Price ” means the average closing price per share of Stock during the twenty (20) consecutive trading days immediately preceding the expiration of the Performance Period.

(i) “ MSCI Index Relative Performance ” means the Absolute TSR Percentage less the MSCI Index TSR Percentage, expressed in basis points.

(j) “ MSCI Index Relative Performance Vesting Percentage ” means a function of the MSCI Index Relative Performance during the Performance Period, and shall be determined as follows:


	MSCI Index Relative Performance	MSCI Index Relative Performance Vesting Percentage
	< -300 basis points		0.0	%
“Threshold Level”	-300 basis points		25.0	%
“Target Level”	+100 basis points		50.0	%
“Maximum Level”	³ +600 basis points		100.0	%

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(m) “ NAREIT Index Relative Performance ” means the Absolute TSR Percentage less the NAREIT Index TSR Percentage, expressed in basis points.

(n) “ NAREIT Index Relative Performance Vesting Percentage ” means a function of the NAREIT Index Relative Performance during the Performance Period, and shall be determined as follows:


	NAREIT Index Relative Performance	NAREIT Index Relative Performance Vesting Percentage
	< -250 basis points		0.0	%
“Threshold Level”	-250 basis points		25.0	%
“Target Level”	+50 basis points		50.0	%
“Maximum Level”	³ +450 basis points		100.0	%

(p) “ Performance Period ” means the period commencing, except as provided in Section 5(b) below, on the Initial Public Offering and ending on the earlier of (i) the third (3 ^rd ) anniversary of the Initial Public Offering and (ii) the date of a Change in Control.

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3. Restrictions and Conditions .

(a) The records of the Partnership evidencing the LTIP Units granted herein shall bear an appropriate legend, as determined by the Partnership in its sole discretion, to the effect that such LTIP Units are subject to restrictions as set forth herein, in the Plan and in the Partnership Agreement.

(b) LTIP Units granted herein may not be sold, assigned, transferred, pledged hypothecated or otherwise disposed of and shall be subject to a risk of forfeiture until the lapse of restrictions as set forth in this Agreement.

4. Lapse of Restrictions .

(a) Following the completion of the Performance Period, the Committee shall determine the Company’s Absolute TSR Percentage and will certify the level of achievement with respect to the Absolute TSR Vesting Percentage, MSCI Index Relative Performance Vesting Percentage, and the NAREIT Index Relative Performance Vesting Percentage and the portion of the LTIP Units granted here that have become Earned LTIP Units. Following the Committee’s determination, LTIP Units granted herein which have not become Earned LTIP Units shall be immediately forfeited to the Partnership without any consideration by the Partnership or any of its Affiliates, and neither Grantee nor any of his successors, heirs, assigns or personal representatives will thereafter have any further rights or interests in such forfeited LTIP Units.

(b) The restrictions and conditions in Section 3 of this Agreement with respect to the Earned LTIP Units (if any) shall lapse and the Earned LTIP Units shall vest as to fifty percent (50%) of the Earned LTIP Units, rounded down to the nearest whole LTIP Unit, on the third (3 ^rd ) anniversary of the Grant Date and as to the remainder of the Earned LTIP Units on the fourth (4 ^th ) anniversary of the Grant Date. Notwithstanding the foregoing, except as provided in Section 5 below, the Earned LTIP Units shall not vest on any vesting date unless Grantee continues to be employed by the Company, the Partnership or any of their Affiliates through the applicable vesting date.

5. Termination of Employment .

(a) In the event of Grantee’s Termination for any reason, except as provided in (b) below, all vesting with respect to the LTIP Units (whether or not such LTIP Units are Earned LTIP Units) shall immediately cease, and all LTIP Units that have not vested at that time will be forfeited to the Partnership without payment of any consideration by the Partnership or any of its Affiliates, and neither Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such LTIP Units.

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(i) If such Termination occurs following the completion of the Performance Period, any restrictions and conditions on the Earned LTIP Units shall lapse and the Earned LTIP Units, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination; and

(ii) If such Termination occurs prior to the expiration of the Performance Period, (A) the end date of the Performance Period shall be the date immediately prior to the Termination and the number of Earned LTIP Units shall be determined as of such date based on the Absolute TSR Vesting Percentage, MSCI Index Relative Performance Vesting Percentage, and NAREIT Index Relative Performance Vesting Percentage during such shortened Performance Period, provided that “N” shall be the number of full or partial calendar years completed during the Performance Period ( e.g. , “N” shall be 2.5 if the termination occurs at the end of the two-year and six-months anniversary of the Initial Public Offering), and (B) any restrictions and conditions on the LTIP Units that become Earned LTIP Units as of the Termination shall lapse and the number of Earned LTIP Units, unless earlier terminated or forfeited, that become vested as of such date of Termination shall be determined by multiplying the number of Earned LTIP Units by a fraction, the numerator of which is the number of days in the shortened Performance Period and the denominator of which is 1,095.

6. Distributions . Distributions on the LTIP Units shall be paid to Grantee in accordance with the terms of the Partnership Agreement.

7. Covenants, Representation and Warranties . Grantee hereby covenants as follows:

(a) So long as Grantee holds any LTIP Units, Grantee shall disclose to the Partnership in writing such information as may be reasonably requested with respect to ownership of LTIP Units as the Partnership may deem reasonably necessary to ascertain and to establish compliance with provisions of the Internal Revenue Code of 1986, as amended (the “ Code ”), as applicable to the Partnership or to comply with the requirements of any other appropriate tax authority.

(b) Grantee hereby agrees to make an election under Section 83(b) of the Code with respect to the LTIP Units awarded hereunder, and has delivered with this Agreement a completed, executed copy of the election form attached hereto as Annex B . Grantee agrees to file the election within thirty (30) days after the Grant Date with the Internal Revenue Service, to promptly provide a copy of such filed election to the Company, and to file a copy of such election with Grantee’s U.S. federal income tax return for the taxable year in which the LTIP Units are awarded to Grantee.

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(c) Grantee hereby agrees not to dispose of the LTIP Units subject to this Award within two years of receipt of such LTIP Units. The Partnership and Grantee hereby agree to treat Grantee as the owner of the LTIP Units from the Grant Date. Grantee hereby agrees to take into account the distributive share of Partnership income, gain, loss, deduction, and credit associated with the LTIP Units in computing Grantee’s income tax liability for the entire period during which Grantee has the LTIP Units.

(d) Grantee hereby recognizes that the Internal Revenue Service has proposed regulations under Sections 83 and 704 of the Code that may affect the proper treatment of the LTIP Units for federal income tax purposes. In the event that those proposed regulations are finalized, Grantee hereby agrees to cooperate with the Partnership in amending this Agreement and the Partnership Agreement, and to take such other action as may be required, to conform to such regulations.

(e) Grantee has received and read a copy of the Partnership Agreement and the Plan and has had his or her tax advisors advise him or her on the application of U.S. federal income tax laws, and the tax laws of any state, local or other taxing jurisdiction to which Grantee is or by reason of the Award may become subject to.

8. Clawback . This Award is subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time.

9. Assignment and Transfer . Except as the Committee may otherwise permit pursuant to the Plan, the rights and interests of Grantee under this Agreement may not be sold, assigned, encumbered, pledged, or otherwise transferred except in the event of the death of Grantee, by will or by the laws of descent and distribution. In the event of any attempt by Grantee to sell, assign, encumber, pledge or otherwise transfer its rights and interests hereunder, except as provided in this Agreement, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company or the Partnership may require Grantee to forfeit the LTIP Units by notice to Grantee, and the LTIP Units and all rights hereunder shall thereupon become null and void. The rights and protections of the Company and the Partnership hereunder shall extend to any successors or assigns of the Company and the Partnership.

10. Incorporation of the Plan . This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof. Any shares of Stock issued in exchange for partnership units into which LTIP Units may have been converted pursuant to the Partnership Agreement will be issued under the Plan.

11. Amendment . Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 19 thereof and that this Agreement may be amended or canceled by the Board or the Committee, on behalf of the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall materially impair Grantee’s rights under this Agreement without Grantee’s written consent.

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12. No Right to Continued Employment . Neither the Plan nor this Agreement will give Grantee any right to continue to be in the employ of the Company, the Partnership or any of their Affiliates, affect the right of the Company, the Partnership or any of their Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her employment at any time.

13. Waiver . The failure of Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.

14. Notices . Notices hereunder shall be mailed or delivered to the Partnership at its principal place of business and shall be mailed or delivered to Grantee at the address on file with the Partnership or, in either case, at such other address as one party may subsequently furnish to the other party in writing.

15. Consent to Electronic Delivery . Grantee agrees that the Company or the Partnership may deliver by email all documents relating to the Plan or the LTIP Units (including without limitation, a copy of the Plan) and all other documents that the Company or Partnership is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities Exchange Commission). Grantee also agrees that the Company or the Partnership may deliver these documents by posting them on a website maintained by the Company or by a third-party under contract with the Company. If the Company posts these documents on a website, it shall notify Grantee by email.

16. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile or electronic submission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

17. Severability . In the event that one or more provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.

18. Headings . Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.

19. Governing Law . This Agreement and all claims or disputes arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by, and construed in accordance with, the laws of the State of Maryland, applied without regard to conflict of law principles or rules that would cause the application of the domestic substantive laws of any other jurisdiction.

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IN WITNESS WHEREOF, the parties have executed this Agreements as of the date first above written.


EMPIRE STATE REALTY TRUST, INC.

By:
Name:
Title:


EMPIRE STATE REALTY OP, L.P.

By:		EMPIRE STATE REALTY TRUST, INC., its general partner

By:
Name:
Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.


Dated:
						[NAME]

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ANNEX A

FORM OF LIMITED PARTNER SIGNATURE PAGE

Grantee, desiring to become one of the within named Limited Partners of Empire State Realty OP, L.P., hereby becomes a party to the Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated as of [ ], 2013, as amended through the date hereof (the “Partnership Agreement ”). Grantee agrees that this signature page may be attached to any counterpart of the Partnership Agreement.


Signature Line for Limited Partner:

Name:
Date:

Address of Limited Partner:

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ANNEX B

ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF

TRANSFER OF PROPERTY PURSUANT TO SECTION 83(B)

OF THE INTERNAL REVENUE CODE

The undersigned hereby makes an election pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in gross income in as compensation for services rendered, the fair market value of the property received in connection with his/her services in excess of the amount paid for the property and supplies the following information in accordance with the regulations promulgated thereunder:

1. The name, address and taxpayer identification number of the undersigned are:


		Name:				(the “Taxpayer”)

		Address:



		Social Security No./Taxpayer Identification No.:

2. Description of property with respect to which the election is being made:

The election is being made with respect to LTIP Units in Empire State Realty O.P. L.P. (the “Partnership”).

3. The date on which the LTIP Units were transferred is .

4. The taxable year to which this election relates is calendar year .

5. Nature of restrictions to which the LTIP Units are subject:

(a)

Until the LTIP Units vest, the Taxpayer may not transfer in any manner any portion of the LTIP Units without the consent of the Partnership.

(b)

The LTIP Units are subject to both performance-based vesting conditions, which are satisfied based upon the percentage increase in the Company’s total shareholder return over a three (3) year performance period (or a shorter period in the event of a change in control or upon certain terminations of employment) and service-based vesting conditions, such that fifty percent (50%) of the LTIP Units that satisfy the performance-based vesting condition will vest on each of the third (3 ^rd ) and fourth (4 ^th ) anniversaries of the grant date provided the undersigned continues employment with the Partnership, its general partner, Empire State Realty Trust, Inc. or any of their respective affiliates through such vesting date (or upon certain terminations of employment).

B-1

6. The fair market value at time of transfer (determined without regard to any restrictions other than restrictions which by their terms will never lapse) of the LTIP Units with respect to which this election is being made was $0 per LTIP Unit.

7. The amount paid by the Taxpayer for the LTIP Units was $0 per LTIP Unit.

8. The amount to be included in gross income is $0.

9. A copy of this statement has been furnished to the Partnership and to its general partner, Empire State Realty Trust, Inc.

The Taxpayer will file this election with the Internal Revenue Service office with which the Taxpayer files his or her annual income tax return no later than 30 days after the date of transfer of the property. Additionally, the Taxpayer will include a copy of the election with his or her income tax return for the taxable year in which the property is transferred. The Taxpayer is the person performing the services in connection with which the property was transferred.

Dated:

Taxpayer’s Signature

B-2

Exhibit 10.7

FORM OF TIME-BASED VESTING LTIP UNIT VESTING AGREEMENT

UNDER THE

EMPIRE STATE REALTY TRUST, INC.

EMPIRE STATE REALTY OP, L.P.

2013 EQUITY INCENTIVE PLAN


Grantee:


No. of LTIP Units:


Grant Date:


Final Acceptance Date:

Pursuant to the Empire State Realty Trust, Inc. and Empire State Realty OP, L.P. 2013 Equity Incentive Plan (the “ Plan ”) and the Amended and Restated Agreement of Limited Partnership of Empire State Realty OP, L.P., dated as of , 2013 (the “ Partnership Agreement ”), of Empire State Realty OP, L.P., a Delaware limited partnership (the “ Partnership ”), Empire State Realty Trust, Inc., a Maryland corporation and the general partner of the Partnership (the “ Company ”) hereby grants to Grantee named above an Other Equity-Based Award (as defined in the Plan, and referred to herein as an “ Award ”) in the form of, and by causing the Partnership to issue to Grantee named above, LTIP Units (as defined in the Partnership Agreement) having the rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption and conversion set forth herein and in the Partnership Agreement. If this LTIP Unit Vesting Agreement (this “ Agreement ”) is accepted prior to the Final Acceptance Date, Grantee shall receive the number of LTIP Units specified above as of the Grant Date, subject to the restrictions and conditions set forth herein, in the Plan and in the Partnership Agreement. All capitalized terms not otherwise defined herein shall have the same meanings as set forth in the Plan.

2. Restrictions and Conditions .

3. Lapse of Restrictions . The restrictions and conditions in Section 2 of this Agreement shall lapse and the LTIP Units granted herein shall vest as to twenty-five percent (25%) of the LTIP Units on the one (1) year anniversary of the Grant Date, and the remainder shall vest in substantially equal annual installments, rounded down to the nearest whole LTIP Unit, on each annual anniversary of the Grant Date for a period of three (3) years thereafter; provided , that , with respect to the last such annual installment, the number of LTIP Units that vest in the installment shall be such that Grantee will be fully vested in the total number of LTIP Units listed above as of the applicable annual anniversary. Notwithstanding the foregoing, except as provided in Section 4 below, the LTIP Units shall not vest on any vesting date unless Grantee continues to be employed by the Company, the Partnership or any of their Affiliates through the applicable vesting date.

4. Termination of Employment .

(a) In the event of Grantee’s Termination for any reason, except as provided in (b) below, all vesting with respect to the LTIP Units shall immediately cease, and all LTIP Units that have not vested at that time will be forfeited to the Partnership without payment of any consideration by the Partnership or any of its Affiliates, and neither Grantee nor any of his successors, heirs, assigns, or personal representatives will thereafter have any further rights or interests in such LTIP Units.

(b) In the event Grantee’s Termination is a result of (i) death, (ii) Disability, (iii) a termination without Cause by the Company or its Affiliates, (iv) a voluntary termination by Grantee that follows the later of (x) the date Grantee attains the age of 60 and (y) the date on which Grantee has first completed ten years of service with the Company or its Affiliates, any predecessor of the Company or its Affiliates (including, without limitation Malkin Holdings LLC), or any entity acquired by the predecessor of the Company in connection with the consolidation of certain office and retail properties in Manhattan and the greater New York metropolitan area and management businesses supervised by Malkin Holdings LLC into the Partnership and/or the Company, [or (v) a termination by Grantee with Good Reason (as defined in Grantee’s Participant Agreement)]; any restrictions and conditions on all LTIP Units subject to this Agreement shall lapse and the LTIP Units, unless earlier terminated or forfeited and to the extent not otherwise vested, shall automatically become fully vested as of such date of Termination.

5. Distributions . Distributions on the LTIP Units shall be paid to Grantee in accordance with the terms of the Partnership Agreement.

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6. Covenants, Representation and Warranties . Grantee hereby covenants as follows:

7. Clawback . This Award is subject to to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board, and in each case, as may be amended from time to time.

8. Assignment and Transfer . Except as the Committee may otherwise permit pursuant to the Plan, the rights and interests of Grantee under this Agreement may not be sold, assigned, encumbered, pledged, or otherwise transferred except in the event of the death of Grantee, by will or by the laws of descent and distribution. In the event of any attempt by Grantee to sell, assign, encumber, pledge or otherwise transfer its rights and interests hereunder, except as provided in this Agreement, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company or the Partnership may require Grantee to forfeit the LTIP Units by notice to Grantee, and the LTIP Units and all rights hereunder shall thereupon become null and void. The rights and protections of the Company and the Partnership hereunder shall extend to any successors or assigns of the Company and the Partnership.

- 3 -

9. Incorporation of the Plan . This Agreement is made under and subject to and governed by all of the terms and conditions of the Plan. In the event of any discrepancy or inconsistency between this Agreement and the Plan, the terms and conditions of the Plan shall control. By signing this Agreement, Grantee confirms that he or she has received a copy of the Plan and has had an opportunity to review the contents thereof. Any shares of Stock issued in exchange for partnership units into which LTIP Units may have been converted pursuant to the Partnership Agreement will be issued under the Plan.

10. Amendment . Grantee acknowledges that the Plan may be amended or discontinued in accordance with Section 19 thereof and that this Agreement may be amended or canceled by the Board or the Committee, on behalf of the Partnership, for the purpose of satisfying changes in law or for any other lawful purpose, provided that no such action shall materially impair Grantee’s rights under this Agreement without Grantee’s written consent.

11. No Right to Continued Employment . Neither the Plan nor this Agreement will give Grantee any right to continue to be in the employ of the Company, the Partnership or any of their Affiliates, affect the right of the Company, the Partnership or any of their Affiliates to discharge or discipline such Grantee at any time, or affect any right of such Grantee to terminate his or her employment at any time.

12. Waiver . The failure of Grantee or the Company to insist upon strict compliance with any provision of this Agreement or the Plan, or to assert any right Grantee or the Company, respectively, may have under this Agreement or the Plan, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement or the Plan.

13. Notices . Notices hereunder shall be mailed or delivered to the Partnership at its principal place of business and shall be mailed or delivered to Grantee at the address on file with the Partnership or, in either case, at such other address as one party may subsequently furnish to the other party in writing.

14. Consent to Electronic Delivery . Grantee agrees that the Company or the Partnership may deliver by email all documents relating to the Plan or the LTIP Units (including without limitation, a copy of the Plan) and all other documents that the Company or Partnership is required to deliver to its security holders (including, without limitation, disclosures that may be required by the Securities Exchange Commission). Grantee also agrees that the Company or the Partnership may deliver these documents by posting them on a website maintained by the Company or by a third-party under contract with the Company. If the Company posts these documents on a website, it shall notify Grantee by email.

15. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Facsimile or electronic submission of any signed original document or retransmission of any signed facsimile or other electronic transmission will be deemed the same as delivery of an original.

- 4 -

16. Severability . In the event that one or more provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.

17. Headings . Section, paragraph and other headings and captions are provided solely as a convenience to facilitate reference. Such headings and captions shall not be deemed in any way material or relevant to the construction, meaning or interpretation of this Agreement or any term or provision hereof.

18. Governing Law . This Agreement and all claims or disputes arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by, and construed in accordance with, the laws of the State of Maryland, applied without regard to conflict of law principles or rules that would cause the application of the domestic substantive laws of any other jurisdiction.

- 5 -

IN WITNESS WHEREOF, the parties have executed this Agreements as of the date first above written.


EMPIRE STATE REALTY TRUST, INC.

By:

Name:
Title:

EMPIRE STATE REALTY OP, L.P.

By:		EMPIRE STATE REALTY TRUST, INC., its general partner

By:

Name:
Title:

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by Grantee.


Dated:

		[NAME]

- 6 -

ANNEX A

FORM OF LIMITED PARTNER SIGNATURE PAGE


Signature Line for Limited Partner:

Name:
Date:

Address of Limited Partner:

ANNEX B

ELECTION TO INCLUDE IN GROSS INCOME IN YEAR OF

TRANSFER OF PROPERTY PURSUANT TO SECTION 83(B)

OF THE INTERNAL REVENUE CODE

1. The name, address and taxpayer identification number of the undersigned are:


		Name:				(the “Taxpayer”)

		Address:



		Social Security No./Taxpayer Identification No.:

2. Description of property with respect to which the election is being made:

The election is being made with respect to LTIP Units in Empire State Realty O.P. L.P. (the “Partnership”).

3. The date on which the LTIP Units were transferred is .

4. The taxable year to which this election relates is calendar year .

5. Nature of restrictions to which the LTIP Units are subject:

(a)

Until the LTIP Units vest, the Taxpayer may not transfer in any manner any portion of the LTIP Units without the consent of the Partnership.

(b)

The LTIP Units are subject to service-based vesting conditions, such that twenty-five percent (25%) of the LTIP Units will vest on each of the first four (4) anniversaries of the grant date, provided the undersigned continues employment with the Partnership, its general partner, Empire State Realty Trust, Inc. or any of their respective affiliates through each such date (or upon certain terminations of employment).

B-1

7. The amount paid by the Taxpayer for the LTIP Units was $0 per LTIP Unit.

8. The amount to be included in gross income is $0.

9. A copy of this statement has been furnished to the Partnership and to its general partner, Empire State Realty Trust, Inc.


Dated:




Taxpayer’s Signature

B-2

Exhibit 10.17

Execution Version

AMENDED AND RESTATED OPTION AGREEMENT

THIS AMENDED AND RESTATED OPTION AGREEMENT (this “ Agreement ”) is made as of September 16, 2013, to amend and restate the Option Agreement dated November 28, 2011 (the “ Original Agreement ”) between 112 West 34th Street Associates L.L.C., a New York limited liability company (“ Owner ”), having an office c/o Malkin Holdings LLC, One Grand Central Place, 60 East 42 ^nd Street, New York, New York 10165; Empire State Realty OP, L.P., a Delaware limited partnership (the “ Operating Partnership ”); Empire State Realty Trust, Inc., a Maryland corporation (the “ Company ”), which is the general partner of the Operating Partnership, having an office c/o Malkin Holdings LLC, One Grand Central Place, 60 East 42 ^nd Street, New York, New York 10165, the Estate of Leona M. Helmsley (including, where the context so requires, any affiliated entities, “ Helmsley ”), and, solely with respect to Section 27(b), Peter L. Malkin and Anthony E. Malkin.

RECITALS

A. WHEREAS, in conjunction with the Company’s formation transactions and the initial public offering (the “ IPO ”) of the Company’s Class A Common Stock, par value $0.01 per share (the “ Class A Common Stock ”), the Company desires, among other things, (i) to consolidate the ownership of the Participation Interests (as defined below) held by the Participants (as defined below) in 23 limited liability companies and limited partnerships (the “ Contributing Entities ”) and (ii) to have an option to acquire the interests owned by three limited liability companies, including Owner (the “ Option Entities ”), which may be exercised only after the final resolution of certain ongoing litigation with respect to the real properties owned by such companies, as described in each Contributing Entity’s or Option Entity’s Consent Solicitation Statement/Offering Memorandum or the Prospectus/Consent Solicitation Statement included in the registration statement on Form S-4 filed by the Company with the U.S. Securities and Exchange Commission (the “ SEC ”), as applicable (each, a “ Consent Solicitation ”). Such litigation has been finally resolved. Such consolidations into the Company and/or the Operating Partnership will be completed prior to or concurrently with the completion of the IPO (as more particularly described below and in the Consent Solicitations (collectively and together with the IPO, the “ Consolidation Transaction ”) pursuant to various contribution agreements (the “ Contribution Agreements ”) by and among the Company, the Operating Partnership and the other parties thereto.

B. WHEREAS, the Consolidation Transaction will entail, among other things, a series of contribution transactions, pursuant to which the Contributing Entities and/or their Participants will receive, as applicable, units of limited partnership interests (the “ OP Units ”) to be issued by the Operating Partnership, shares of Class A Common Stock, shares of Class B Common Stock of the Company, par value $0.01 per share (the “ Class B Common Stock ” and, together with the Class A Common Stock, the “ Common Stock ”), to be issued, in each case, by the Company in conjunction with the Consolidation Transaction and/or, to a limited extent, as described in the Consent Solicitations, cash, which, to the extent received by the Contributing Entities, will each be distributed to the Participants therein. The holders of a Participation Interest in a Contributing Entity or an Option Entity, as applicable, are referred to individually as a “ Participant ” and collectively as the “ Participants .”

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C. WHEREAS, Owner is the fee owner, ground lessor, sublessee and sub-sublessor of the premises known as 122 West 34 ^th Street, New York, New York (“ Parcel I ”) and the ground lessee and sublessor of the premises known as 112-120 West 34 ^th Street, New York, New York (“ Parcel II ” and, together with Parcel I, the “ Property ”) pursuant to that certain Bargain and Sale Deed Without Covenant Against Grantor’s Acts dated July 10, 2008 by and between Viola D. Sullivan, as Trustee of the Viola D. Sullivan Trust dated April 8, 1998, Alyce Micolino, Frances T. Carr, Douglas E. Carr, Barbara E. Carr Smith and Christopher E. Carr, collectively as grantor and 112 West 34 ^th Street Associates L.L.C. as Grantee (the “ Deed ”) recorded in the office of the Register of the City of New York on July 31, 2008 under City Register File No. 2008000303455.

D. WHEREAS, the Operating Partnership agreed to hold an option to acquire the Assets as defined herein, and Owner agreed to grant such option, on the terms set forth in the Original Agreement.

NOW, THEREFORE, in consideration of the premises and mutual covenants herein, the Operating Partnership, the Company, and Owner hereby agree to make certain modifications to the Original Agreement by amending and restating the Original Agreement as follows:

Definitions .

(a) The following definitions shall apply:

(i) “ Accredited Investor ” means a Participant in Owner who is an accredited investor as defined in Rule 501 of Regulation D under the Securities Act, as in effect at the time of such determination.

(ii) “ AEM ” means Anthony E. Malkin.

(iii) “ Affiliate ” means, with respect to any Person, a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

(iv) “ Appraiser ” means any independent third party appraiser with experience in valuation matters selected in accordance with Section 2(b) and Exhibit A hereto.

(v) “ Assets ” has the meaning ascribed to it in Section 2(a).

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(vi) “ Business Day ” means any day that is not a Saturday, Sunday or legal holiday in the State of New York.

(vii) “ Case ” means that certain case entitled 112 West 34 ^th Street Associates L.L.C. v. 112-1400 Trade Properties LLC, commenced in the Supreme Court of the State of New York, County of New York, Index No 09-100846.

(viii) “ Claims ” means any claims, liabilities, rights, actions, causes of action, allegations, assertions, suits, complaints, demands or requirements.

(ix) “ Closing ” means the consummation of the acquisition of the Assets pursuant to the Option.

(x) “ Closing Date ” has the meaning ascribed to it in Section 3(a).

(xi) “ Conclusion ” means the final settlement, or the final adjudication after expiration of all appeal periods, of the Case, which is agreed to have occurred for the purpose of this Agreement on March 19, 2013.

(xii) “ Consideration ” has the meaning ascribed to it in Section 2(b) hereof.

(xiii) “ Contracts ” shall mean any and all brokerage agreements related to the Subleases, service contracts, collective bargaining agreements and union contracts (but only with respect to personnel employed at the Property), to which the Property or any portion thereof or Owner may be subject, construction contracts, licenses and permits for the use of any trademarked or copyrighted material, and all other agreements affecting any portion of the Property, which have not been terminated prior to the Closing.

(xiv) “ Deed ” means that certain Bargain and Sale Deed Without Covenant Against Grantor’s Acts dated July 10, 2008 by and between Viola D. Sullivan, as Trustee of the Viola D. Sullivan Trust dated April 8, 1998, Alyce Micolino, Frances T. Carr, Douglas E. Carr, Barbara E. Carr Smith and Christopher E. Carr, collectively as grantor and 112 West 34 ^th Street Associates L.L.C. as Grantee (the “ Deed ”) recorded in the office of the Register of the City of New York on July 31, 2008 under City Register File No. 2008000303455.

(xv) “ ERISA ” shall mean The Employee Retirement Income Security Act of 1974, as amended.

(xvi) “ Excluded Assets ” has the meaning ascribed to it in Section 2(a)(ii).

(xvii) “ Existing Loans ” has the meaning ascribed to it in Section 4(ee).

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(xviii) “ Ground Lease ” means that certain Lease, dated January 25, 1951, by and among Mathew Micolino, Jr., Dorothy M. Gucker, and Viola Micolino Carr, collectively, as landlord, and Marth F. Keeping, as tenant; landlord’s interest in the lease assigned to 112 West 34 ^th Street Associates L.L.C. pursuant to Assignment of Lease, dated July 10, 2008, from Viola D. Sullivan, as Trustee of the Viola D. Sullivan Trust, Alyce Micolino, Frances T. Carr, Douglas E. Carr, Barbara E. Carr Smith, and Christopher E. Carr.

(xix) “ Helmsley ” has the meaning ascribed to it in the introductory paragraph hereof.

(xx) “ Independent Director ” means a director of the Company who is an independent director as defined under the rules of the New York Stock Exchange or other national securities exchange on which the Class A Common Stock is listed.

(xxi) “ IPO ” has the meaning ascribed to it in the Recitals.

(xxii) “ IPO Price ” means the price per share of Class A Common Stock in the IPO.

(xxiii) “ Knowledge ” means, with respect to Owner, any Subsidiary of Owner, the Company or the Operating Partnership, the current actual knowledge of any Principal or Thomas N. Keltner, Jr. without any duty of investigation or inquiry.

(xxiv) “ Leases ” means, collectively, the Ground Lease, the Operating Lease and the Operating Sublease.

(xxv) “ Lessor ” has the meaning ascribed to it clause (xxxii) of this Section 1.

(xxvi) “ Lien ” means all pledges, claims, liens, charges, restrictions, controls, easements, rights of way, exceptions, reservations, leases, licenses, grants, covenants and conditions, encumbrances and security interests of any kind or nature whatsoever.

(xxvii) “ Management Companies ” shall mean Malkin Holdings LLC, Malkin Properties, L.L.C., Malkin Properties of New York, L.L.C., Malkin Properties of Connecticut, Inc. and Malkin Construction Corp.

(xxviii) “ Material Adverse Effect ” means, as the case may be, a material adverse effect on (i) the assets, business, financial condition or results of operations of Owner taken as a whole (or on the applicable interest in the Property) (as to the representations and warranties relating to Owner) or (ii) the Company, the Operating Partnership and their Subsidiaries and their properties taken as a whole, after giving effect to the Consolidation Transaction and the IPO (as to the representations and warranties relating to the Company and the Operating Partnership), as applicable.

(xxix) “ Net Working Capital ” means current assets of Owner (excluding cash and cash equivalents, except to the extent required to maintain the normalized level of working capital for Owner) less current liabilities of Owner (excluding the outstanding principal balance under any Existing Loans).

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(xxx) “ Non-Accredited Investor ” means a Participant who is not an Accredited Investor.

(xxxi) “ OP Agreement ” means the agreement of limited partnership of the Operating Partnership, as amended and restated and in effect immediately prior to the closing of the IPO.

(xxxii) “ Operating Lease ” means that certain Indenture of Lease dated June 10, 1963 by and between 112-1400 Trade Properties, LLC (successor in interest to Webb & Knapp, Inc.), as lessor (the “ Lessor ”), and 112 West 34th Street Associates L.L.C. (successor in interest to Rose Iacovone).

(xxxiii) “Operating Sublease” mean that certain Indenture of Sublease dated June 1, 1967, by and between 112 W. 34 ^th St. Associates L.L.C., as sublessor, and 112 West 34 ^th Street Company L.L.C., as sublessee, as amended by (i) Agreement dated as of June 2, 1967; (ii) Agreement dated as of June 1, 1974; (iii) Agreement dated as of January 1, 1980; (iv) letter dated as of August 6, 1992; (v) Fifth Sublease Modification Agreement dated as of August 27, 2004; (vi) Sixth Sublease Modification Agreement dated as of March 10, 2008; (vii) Seventh Sublease Modification Agreement dated as of July 10, 2008; and (vii) Eighth Sublease Modification Agreement dated as of December 9, 2009.

(xxxiv) “ Operating Partnership ” has the meaning ascribed to it in the introductory paragraph hereof.

(xxxv) “ Option ” has the meaning ascribed to it in Section 2(a)(i) hereof.

(xxxvi) “ Option Term ” has the meaning ascribed to it in Section 2(a)(iii) hereof.

(xxxvii) “ OP Units ” has the meaning ascribed to it in the Recitals.

(xxxviii) “ Owner ” has the meaning ascribed to it in the introductory paragraph hereof.

(xxxix) “ Owner’s Appraiser ” has the meaning ascribed to it in Section 2(b)(ii) hereof.

(xl) “ Parcel I ” has the meaning ascribed to it in the Recitals.

(xli) “ Parcel II ” has the meaning ascribed to it in the Recitals.

(xlii) “ Participation Interests ” means the limited liability company, general or limited partnership interests in Owner, any other option entity or any Contributing Entity, as applicable and, to the extent a limited liability company, general or limited partnership interests are held by an agent for the benefit of participants, the beneficial ownership of such interests.

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(xliii) “ Permitted Encumbrances ” means (i) Liens, or deposits made to secure the release of such Liens, securing taxes, the payment of which is not delinquent or the payment of which is actively being contested in good faith by appropriate proceedings diligently pursued; (ii) zoning laws generally applicable to the districts in which the Property is located; (iii) easements for public utilities, encroachments, rights of access and/or other non-monetary matters that do not materially interfere with the use of the Property; (iv) Liens securing any financing or credit arrangements existing as of the Closing Date and assumed by the Operating Partnership; (v) Liens arising under leases entered into in the ordinary course of business; (vi) any exceptions contained in the title policies relating to the Property made available to the Company and the Operating Partnership at or prior to November 28, 2011 that do not materially detract from the value or the marketability of the Property or the ability of the Property to be financed; (vii) the Liens of all documents related to the Existing Loans and (viii) any matters that would not have a Material Adverse Effect.

(xliv) “ Person ” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.

(xlv) “ PLM ” means Peter L. Malkin.

(xlvi) “ Principals ” means AEM, Scott D. Malkin and Cynthia M. Blumenthal.

(xlvii) “ Property ” has the meaning ascribed to it in the Recitals.

(xlviii) “ Registration Rights Agreement ” means that certain registration rights agreement for the benefit of Participants in the Contributing Entities and the Participants in Owner and the other Option Entities, as applicable, substantially in the form attached to the Consent Solicitations, provided, that if the Closing shall occur at any time following the closing of the Consolidation Transaction, “Registration Rights Agreement” shall mean a separate registration rights agreement for the benefit of Participants in Owner, substantially in the form of such registration rights agreement for the benefit of Participants in the Contributing Entities.

(xlix) “ Requisite Consent ” has the meaning ascribed to it in Section 4.II(z).

(l) “ Securities Act ” means the Securities Act of 1933, as amended.

(li) “ Subleases ” shall mean all leases, subleases, licenses, and other occupancy agreements affecting the Property (including the Operating Leases and the Operating Sublease), except the Ground Lease.

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(lii) “ Subsidiary ” means any corporation, partnership, limited liability company, joint venture, trust or other legal entity which the applicable Person owns (either directly or through or together with another Subsidiary) either (i) a general partner, managing member or other similar interest or (ii)(A) 50% or more of the voting power of the voting capital stock or other equity interests or (B) 50% or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other legal entity. As used herein, “ Subsidiary ” or “ Subsidiaries ” refers to the Subsidiaries of Owner, the Company or the Operating Partnership, as applicable, unless the context otherwise requires.

(liii) “ Supervisor ” means Malkin Holdings LLC or any of its Affiliates, in such Person’s capacity as the supervisor of the Owner, the other Option Entities and each of the Contributing Entities, as applicable.

(liv) “ Title Insurance Company ” means any reputable title insurance company licensed to conduct business in the State of New York.

(lv) “ Valuation ” means the establishment of the Consideration pursuant to Section 2(b) hereof.

(lvi) “ Valuation Date ” means the date as of which the Consideration is determined pursuant to the Valuation or agreement, as applicable, in accordance with Section 2(b) hereof.

2. Option; Consideration .

(a) (i) Owner hereby grants to the Operating Partnership an option (the “ Option ”) to acquire Owner’s fee interest in Parcel I and all of Owner’s right, title and interest in and to the Leases and all hereditaments thereto and all of Owner’s assets (other than Excluded Assets) as of the Valuation Date (collectively, the “ Assets ”) for the Consideration determined in accordance with Section 2(b), subject to closing adjustments as provided herein.

(ii) Notwithstanding the foregoing, the parties expressly acknowledge and agree that all assets and properties of Owner set forth on Schedule 2(a)(ii) shall be deemed “ Excluded Assets ” and not be contributed, transferred, assigned, conveyed or delivered to the Operating Partnership pursuant to this Agreement, and the Operating Partnership shall not have any rights or obligations with respect thereto. On or prior to the Closing, Owner must distribute to its Participants all of its cash (excluding from distributable cash (a) any reserves on deposit with lenders for escrow accounts, (b) amounts attributable to prepayments of more than thirty-five (35) days of rent, management fees, other income streams or expense reimbursements, (c) amounts held by Owner as security deposits or amounts otherwise required to be reserved by Owner pursuant to existing agreements with third parties and (d) cash in addition to the foregoing, if any, required to maintain a normalized level (as determined in good faith by the Supervisor, or any successor thereto) of Net Working Capital of Owner (determined based on the most recent quarterly financial statement of Owner)) to its Participants in accordance with the provisions of the applicable organizational documents of Owner (such assets being deemed part of the definition of “ Excluded Assets ”); provided, however , that other than the distributions by Owner and actions taken in connection with the Consolidation Transaction, Owner has not since

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November 28, 2011 taken, and shall not take, any action other than actions in the ordinary course consistent with past practice to increase current assets or reduce current liabilities, including by increasing long-term liabilities, decreasing long-term assets, changing reserves or otherwise. The Operating Partnership agrees and acknowledges that none of the Excluded Assets, nor any right, title or interest of Owner or any Participant therein, shall be deemed to constitute a part of the assets and liabilities contributed to the Operating Partnership, and that such assets and liabilities will be retained by Owner at the Closing. The Operating Partnership agrees and acknowledges that Owner must transfer or distribute the Excluded Assets to its Participants at any time and from time to time prior to or after the Closing and no such transfer or distribution shall be deemed to violate or breach any provision under this Agreement or any other documents contemplated hereby; provided, that to the extent such distributions occur after Closing and Helmsley is no longer a Participant in Owner, any distributions in respect of Participation Interests in Owner contributed, directly or indirectly, by any Helmsley entity to the Operating Partnership or its designee as contemplated hereby shall be assigned to such Helmsley entity or its designee.

(iii) The Option may be exercised during a term (the “ Option Term ”) which commenced on the date of Conclusion and shall expire on the later of (1) twelve months after the Conclusion has occurred, and (2) five months after completion of the Valuation, which completion shall be not later than six months after the date of the closing of the IPO; provided, however, that the Option Term shall in no event continue past the earlier of (a) December 31, 2014 if the Consolidation Transaction has not closed by such date and (b) the date on which the Consolidation Transaction is abandoned pursuant to a determination of the pricing committee as described in the Consent Solicitation. Exercise of the Option shall be effected by notice (the “ Exercise Notice ”) from the Operating Partnership to Owner provided in accordance with Section 9 hereof, provided such notice is given prior to the expiration of the Option Term, time being of the essence. Any such exercise must be approved by a majority of the Independent Directors.

(b) (i) The dollar value of the consideration to be paid by the Operating Partnership for the Assets (“ Consideration ”) shall be determined as follows:

(A) Within 60 days after the closing of the IPO, Owner and the Operating Partnership shall commence the process for determining the value of the Consideration (the “ Valuation ”) in accordance with Exhibit A hereto and this Section 2(b), the provisions of which shall govern the Valuation to determine the Consideration; provided, however, that if the Option is exercised prior to the IPO, then (in lieu of the Valuation) the Consideration shall be Owner’s “Value” calculated in the manner set forth on Schedule 2(b)(i)(A) hereto in accordance with the appraisal of Duff & Phelps LLC as described in the Consent Solicitations. The Option hereunder shall remain in force, regardless of how high or low a Consideration is thereby determined. Contemporaneous with the commencement of the Valuation, Owner shall give the Operating Partnership a notice showing the names and allocable percentage interest in Owner held by each of its Non-Accredited Investors (the “ Non-AI List ”) and its Accredited Investors (the “ AI List ”). The AI List shall state the election made by each Participant of Owner that is an Accredited Investor in the applicable Consent Solicitation for the Consideration to be paid in OP Units or Common Stock; provided, however, that the form of Consideration payable to Owner and distributed to Participants in Owner shall be as provided in Section 3(a).

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(B) At any time when the Conclusion has occurred or is reasonably anticipated and subject to the first proviso in Section 2(b)(i)(A), Owner and the Operating Partnership may engage in negotiations to agree mutually on the Consideration, it being understood that such agreement shall be subject to the approval of both Malkin (as defined below) and Helmsley on behalf of Owner. If at any time Owner and the Operating Partnership shall agree upon the Consideration and other terms of sale of the Assets in a fully signed unconditional purchase agreement, they shall then jointly instruct the termination of any then pending Valuation process.

(ii) The Appraiser designated by Owner pursuant to Exhibit A hereto (“ Owner’s Appraiser ”) shall be selected jointly by PLM and AEM or their survivor (“ Malkin ”) so long as such designee meets the qualifications described in Section (b) of Exhibit A hereto and receives the prior written approval of Helmsley, not to be unreasonably withheld or delayed; provided, however, that no Helmsley approval shall be required if the Appraiser selected by Malkin is one of the firms listed on Exhibit B hereto or any successor to such firms, it being understood that any Malkin designation of CB Richard Ellis as Appraiser shall be effective only if permitting CB Richard Ellis to continue to serve as Helmsley’s adviser in respect of the Consolidation Transaction on terms acceptable to Helmsley.

The Supervisor may provide information on behalf of Owner to Owner’s Appraiser, provided that such information shall be limited to (x) historical financial and operating information and reports, signed leases and contracts, and real estate tax records, and (y) subject to Helmsley’s prior written approval, third party reports relating to the Property which were generated prior to the Conclusion, the then current year’s operating and capital budgets for the Assets, any information provided to Duff & Phelps, LLC in connection with its valuation and allocation report and its fairness opinion prepared for the Consent Solicitations and other information relating to the Property from the files of Owner, the Supervisor and its managing agent. All such information provided by the Supervisor to Owner’s Appraiser shall be shared contemporaneously with Helmsley; provided that any materials provided pursuant to clause (y) shall be provided first to Helmsley in connection with obtaining its approval. In any event, the Appraisers shall be given a copy of this Agreement.

(iii) Each of Owner and the Operating Partnership shall refrain from communication with the involved professionals at the other’s Appraiser. AEM shall recuse himself from acting on behalf of the Operating Partnership or the Company in any negotiation and Valuation process.

3. Closing .

(a) By notice to Owner within 15 days after delivery of the Exercise Notice, the Operating Partnership shall designate (1) the place of Closing in the City of New York, (2) the date of the Closing (the “ Closing Date ”) to be not sooner than 60 days, and not later than 90 days, after such notice, except that the Closing shall not in any event be sooner than the date of the closing of the IPO and shall be conditioned on consummation of the IPO (provided, that, the foregoing shall in no way preclude the Operating Partnership from exercising the Option at any time during the Option Term) and (3) the form of payment of the Consideration, subject to the following:

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(i) If the Closing occurs following the IPO, (A) the Operating Partnership must pay the same percentage of the Consideration in cash as the percentage share of Owner held by (1) Helmsley and (2) the Non-AI List, subject to any update of such List received by the Operating Partnership at least 30 days prior to the designated Closing Date, and (B) the Operating Partnership shall pay the balance of the Consideration in accordance with the elections made by Accredited Investors (other than Helmsley) in Owner, as shown on the AI List; provided, however , the Operating Partnership may elect to pay solely or partly in cash in lieu of OP Units and Common Stock as to all such Accredited Investors on a pro rata basis, if the average trading price of the Class A Common Stock on the New York Stock Exchange or other national securities exchange on which the Class A Common Stock is listed for the 20 consecutive days preceding the date that is 10 days prior to the Closing Date, is below the IPO Price. The aggregate number of OP Units and/or shares of Common Stock to be paid by the Operating Partnership to Owner shall equal the balance of the Consideration not paid in cash pursuant to this Section 3(a)(i) divided by the average trading price of the Class A Common Stock on the New York Stock Exchange or other national securities exchange on which the Class A Common Stock is listed for the 20 consecutive days preceding the date that is 10 days prior to the Closing Date.

(ii) If the Closing occurs simultaneously with the Consolidation Transactions and the IPO, then the Operating Partnership shall pay the Consideration in the same manner as the consideration to be paid in the Consolidation Transaction as described in the Consent Solicitations in accordance with the elections made by Accredited Investors in Owner (including Helmsley), as shown on the AI List. Non-Accredited Investors shall receive all cash.

(iii) All Consideration paid to Owner shall be distributed by Owner to its Participants in accordance with the foregoing as soon as practicable after Closing.

(b) At the Closing, Owner shall convey marketable title to the Assets (other than Excluded Assets), including all of its right, title and interest in the Leases subject only to the Permitted Encumbrances and in connection therewith, deliver:

(i) (A) a Title Policy issued by a Title Insurance Company to the Operating Partnership or a Subsidiary thereof, as fee owner of Parcel I, effective as of the Closing, with respect to Parcel I containing exceptions only for Permitted Encumbrances; and (B) a Title Policy issued by a Title Insurance Company to the Operating Partnership or a Subsidiary thereof, as ground lessee of Parcel II, effective as of the Closing, with respect to Parcel II, containing exceptions only for Permitted Encumbrances;

(ii) an estoppel certificate for the benefit of the Operating Partnership from the Lessor (or otherwise from Owner) to the effect that the Leases are in full force and effect without default, only to the extent received after Owner uses commercially reasonable efforts to obtain such estoppel certificates;

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(iii) certificate required under Section 1445 of the Internal Revenue Code of 1986, as amended, certifying that Owner is not a “foreign person;”

(iv) an assignment of each of the Contracts to the Operating Partnership, without representation or warranty except as expressly contained herein, in a form to be agreed between the Operating Partnership and Owner; provided, however the Operating Partnership shall assume Owner’s obligations under such Contracts, from and after the Closing Date;

(v) (A) a deed in recordable form, conveying Owner’s fee estate in Parcel I to the Operating Partnership, together with New York City and New York State real estate transfer tax forms duly executed and acknowledged; (B) an assignment and assumption agreement in recordable form, conveying Owner’s estate in the Ground Lease to the Operating Partnership, together with New York City and New York State real estate transfer tax forms duly executed and acknowledged; (C) an assignment and assumption agreement in recordable form, conveying Owner’s estate in the Operating Lease to the Operating Partnership, together with, to the extent applicable, New York City and New York State real estate transfer tax forms duly executed and acknowledged; (D) an assignment and assumption agreement in recordable form, conveying Owner’s estate in the Operating Sublease to the Operating Partnership, together with, to the extent applicable, New York City and New York State real estate transfer tax forms duly executed and acknowledged; and (E) and an assignment, to the extent assignable, of each license and permit respecting the operation of the systems, equipment and apparatus situated at the Property in Owner’s possession without representation or warranty except as expressly contained herein, provided, however, that the Operating Partnership shall assume Owner’s obligations under such licenses and permits, from and after the Closing Date, in each case, in a form to be agreed between the Operating Partnership and Owner;

(vi) an assignment and assumption of the Owner’s right, title and interest in the Subleases (other than the Operating Lease and the Operating Sublease) to the Operating Partnership, without representation or warranty, and in the in a form to be agreed between the Operating Partnership and Owner, provided however, that the Operating Partnership shall assume Owner’s obligations under the Subleases from and after the Closing Date;

(vii) originals of all Subleases in the possession of Owner or its managing agent as then are in effect and copies of all other Subleases certified by Owner that to the best of its knowledge each such copy is a true and complete copy of the Sublease that such copy purports to be;

(viii) [Intentionally Omitted.];

(ix) the Property’s managing agent’s records pertaining to the Subleases being assumed by the Operating Partnership or its designee (excluding those deemed to be confidential by reason of any attorney-client privilege asserted by Owner) pertaining to the operation of the Property;

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(x) any estoppel certificates from each tenant at the Property occupying at least 10% of the rentable square footage at the Property in the form required under such tenants’ respective lease or any other form reasonably satisfactory to the Operating Partnership, to the extent received after Owner uses commercially reasonable efforts to obtain such estoppel certificates;

(xi) the Registration Rights Agreement;

(xii) [Intentionally Omitted.]

(xiii) A standard owner’s affidavit executed by Owner to the extent necessary to enable the Title Company to issue to the Operating Partnership or its Subsidiary, effective as of the Closing, with respect to the Property, either (i) an ALTA extended coverage owner’s or leasehold policy of title insurance (in current form), with such endorsements thereto as the Operating Partnership may reasonably request (including, without limitation, non-imputation endorsements) or (ii) such endorsements to the currently held owner’s or leasehold policy of title insurance for the Property as the Operating Partnership may reasonably request (including, without limitation, date-down, “Fairway” and co-insurance endorsements), in either event with coverage for the Property equal to the an amount reasonably acceptable to the Operating Partnership, and with a tie-in endorsement with respect to all Contributed Properties located in any state for which such tie-in endorsements can be issued for an owner’s or leasehold policy of title insurance, and levels of reinsurance for the Property as reasonably acceptable to the Operating Partnership, insuring fee simple and/or leasehold title (as applicable) to all real property and improvements comprising the Property in the name of the Operating Partnership (or a Subsidiary thereof, as the Operating Partnership may designate), subject only to the Permitted Encumbrances (collectively, the “ Title Policies ”); and

(xiv) Lessor’s written consent to the conveyance of Owner’s estate under the Ground Lease as required under the Ground Lease.

(c) At the Closing, the Company or the Operating Partnership, as the case may be, shall deliver the following documents to Owner and pay the Consideration as provided in Sections 2(b) and 3(a):

(i) New York City and New York State real estate transfer tax forms duly executed and acknowledged;

(ii) a duly executed and acknowledged counterpart of the assignment and assumption agreement with respect to the Ground Lease, in a form to be agreed between the Operating Partnership and Owner;

(iii) a duly executed and acknowledged counterpart of the assignment and assumption agreement with respect to the Ground Lease, in a form to be agreed between the Operating Partnership and Owner;

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(iv) a duly executed and acknowledged counterpart of the assignment and assumption agreement with respect to the Operating Lease, in a form to be agreed between the Operating Partnership and Owner;

(v) a duly executed and acknowledged counterpart of the assignment and assumption agreement with respect to the Operating Sublease, in a form to be agreed between the Operating Partnership and Owner;

(vi) an assumption by Operating Partnership of the Owner’s obligations under the Subleases (other than the Operating lease and the Operating Sublease), in a form to be agreed between the Operating Partnership and Owner;

(vii) an assumption of Owner’s obligations under the Contracts in a form to be agreed between the Operating Partnership and Owner;

(viii) an assumption of Owner’s obligations under the licenses and permits respecting the operation of systems, equipment and apparatus situated at the Property assigned to Operating Partnership, in a form to be agreed between the Operating Partnership and Owner;

(ix) the OP Agreement and the Amendment (as defined in Section 5(e)) and the Articles of Amendment and Restatement of the Company;

(x) Evidence of the DTC Registered REIT Stock (as defined in Section 5(e)), which shall bear substantially the legend set forth in the Articles of Amendment and Restatement of the Company or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles of Amendment and Restatement of the Company on request and without charge

(xi) the Registration Rights Agreement;

(xii) evidence of the authority of the Company and the Operating Partnership to consummate this transaction and proof of its legal subsistence as an entity;

(xiii) an agreement in the form reasonably acceptable to Owner and Operating Partnership pursuant to which Operating Partnership shall agree to perform the covenants hereunder intended to survive the Closing;

(xiv). a release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached as Exhibit C hereto; and

(xv) an assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary thereof, as applicable, in favor of Owner, to the extent not distributed prior to Closing, to achieve the distributions contemplated under Section 2(a)(ii), if applicable.

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(d) On the Closing Date:

(i) Consideration shall be increased by the amount of any Net Working Capital (determined based on the most recent quarterly financial statement of Owner) remaining after the cash distributions to Participants in Owner described in Section 2(a)(ii) in excess of the normalized level of Net Working Capital for Owner, as determined in good faith by the Supervisor.

(ii) The Consideration shall be decreased by the amount of any Net Working Capital (determined based on the most recent quarterly financial statement of Owner) remaining after the cash distributions to Participants in Owner described in Section 2(a)(ii) that is less than the normalized level of Net Working Capital for Owner, as determined in good faith by the Supervisor.

(e) [Intentionally Omitted.]

(f) If any party shall discover any error in the computation of any closing adjustment, such error shall be corrected promptly following notification thereof by the discovering party to the other (provided, that such notification shall be given within thirty (30) days following the discovery thereof but not later than one (1) year following the Closing Date) and an appropriate payment to correct the same shall then be made.

(g) The Operating Partnership shall use commercially reasonable efforts (including billing any unbilled rents which shall have accrued prior to the Closing Date) to collect all rents due for any period prior to the Closing Date and shall promptly after collection of the same, pay them (less reasonable costs of collection) to Owner to the extent that the same have not theretofore been otherwise paid to Owner. Owner may, after the Closing, pursue any legal action or proceeding (except for eviction proceedings) against any tenant who shall be in arrears of any rent as of the Closing Date or which shall not then be in arrears but shall thereafter be due with respect to any such period. The Operating Partnership shall deliver to Owner, monthly, for a period of two (2) years following the Closing Date, reasonably detailed reports setting forth the status of the Operating Partnership’s collection efforts.

(h) If there shall be pending as of the Closing Date real estate tax certiorari or other proceedings or protests to reduce the real estate taxes, assessments, valuations or other impositions on the Property or any portion thereof, the Operating Partnership shall assume at Owner’s election and Operating Partnership’s cost the prosecution of such proceedings for the benefit of Owner and the Operating Partnership, as attributable to the respective ownership period of each. Owner may prosecute such proceedings or protests using counsel, if any, retained by Owner in connection with such proceedings or protests until a final determination has been rendered. If such determination shall result in a refund or credit, then the net amount of such refund or credit shall be adjusted in accord with the provisions of this Section 3(h);

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Partnership at the Closing all non-cash security deposits under the Subleases. If any of such security deposits shall be in the form of certificates of deposit, letters of credit or other non-cash instruments, Owner shall bear any transfer fees that may be levied in connection with any such assignment. Owner shall use commercially reasonable efforts to deliver at Closing all completed and signed forms, which shall be required by the issuer of such non-cash instruments. For the purposes of this Section 3(i), the amount of any such security deposits (whether in cash or other form) shall be that amount still retained by Owner after applying any such security deposit in accordance with the relevant Lease to the extent permitted thereunder and retention by Owner of any portion of interest earned any security deposit which under law a landlord under any lease may have retained as a service fee or otherwise.

(j) Owner shall pay the State of New York and New York City transfer taxes imposed in connection with the conveyance of the fee interest in Parcel I, the leasehold estate under the Ground Lease and the interest under the Operating Lease pursuant to this Agreement; provided, that Helmsley shall be given reasonable opportunity to avail itself of any exemption therefrom including by way of the transfer of the equity interests in the Helmsley entity that holds the Participation Interest in Owner or such Participation Interest directly to the Operating Partnership, all on the basis that any resulting savings shall be for the account of Helmsley, which shall indemnify Owner and its successors from any liability in respect of any underpayment of tax arising in respect of such exemption. To the extent Helmsley elects to transfer such equity interests or its Participation Interest in Owner to the Operating Partnership, the Company, the Operating Partnership and the applicable Helmsley entities shall enter into a contribution agreement, on substantially the same terms as set forth in the Helmsley Contribution Agreement attached as Exhibit D to be entered into in connection with the Consolidation Transaction (including with respect to indemnification) but reflecting the Consideration distributable to Helmsley pursuant to this Agreement.

(k) The Operating Partnership shall pay the following expenses:

(i) premiums and costs for any endorsements to an Owner’s ALTA title insurance policy and any lender’s title insurance policy including any endorsements;

(ii) the cost of obtaining any update to any existing survey or a new survey of the Property;

(iii) the premium for any gap insurance;

(iv) all costs relating to any financing obtained by the Operating Partnership to consummate the transactions contemplated by this Agreement; and

(v) all other costs and expenses it and Owner have incurred in connection with the transactions contemplated hereby, the Consolidation Transaction or the IPO and all costs and expenses incident to this Agreement, the other documents contemplated by this Agreement and the documents and transactions contemplated hereby or thereby, and not specifically described above, in each case, only if (i) the Consolidation Transaction has closed and (ii) the Requisite Consent (as defined below) of the Participants in Owner to approve this Agreement has been received.

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(l) In the event that the Consolidation Transaction does not close, each party hereto shall bear its own attorney’s legal charges with respect to the transactions to be consummated pursuant hereto.

(m) Owner shall request that the lenders holding the mortgages encumbering the Property on the Closing Date be assigned to the Operating Partnership’s lender, and any resulting savings in mortgage recording tax shall be divided equally between Owner and the Operating Partnership.

Any or all of the foregoing conditions may be waived by the Owner or the Operating Partnership (on its behalf and on behalf of the Company), as the case may be, in its sole and absolute discretion.

4. Representations .

I. Representations and Warranties with Respect to the Company and the Operating Partnership . The Operating Partnership and the Company hereby jointly and severally represent and warrant to Owner, as of November 28, 2011, as set forth below in this Section 4, which representations and warranties are true and correct as of November 28, 2011:

(a) Organization; Authority .

(i) The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation and has all requisite power and authority to enter into this Agreement and each agreement or other document contemplated by this Agreement and to carry out the transactions contemplated hereby or thereby, and to own, lease and/or operate its property, as applicable, and its other assets, and to carry on its business as presently conducted. The Company, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(ii) The Operating Partnership is a limited partnership duly formed, validly existing and in good standing under the Laws of its jurisdiction of formation and has all requisite power and authority to enter into this Agreement and each agreement or other document contemplated by this Agreement and to carry out the transactions contemplated hereby or thereby, and to own, lease and/or operate its property, as applicable, and its other assets, and to carry on its business as presently conducted. The Operating Partnership, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(b) Due Authorization . The execution, delivery and performance by the Company and the Operating Partnership of this Agreement and each other agreement or document contemplated by this Agreement to which it is a party have been duly and validly authorized by all necessary actions required of the Company and the Operating Partnership, respectively. This Agreement and each other agreement or document contemplated by this Agreement executed and delivered by or on behalf of the Company and the Operating Partnership constitutes, or when executed and delivered will constitute, the legal, valid and binding obligation of the Company and the Operating Partnership, respectively, each enforceable against the Company and the Operating Partnership, respectively, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(c) Litigation . There is no action, suit or proceeding pending or, to the Company’s or the Operating Partnership’s Knowledge, threatened against the Company, the Operating Partnership or any of its Subsidiaries which, if adversely determined, would, individually or together with all such other actions, reasonably be expected to have a Material Adverse Effect. As of November 28, 2011, there was no action, suit or proceeding pending or, to the Company’s or the Operating Partnership’s Knowledge, threatened against the Company, the Operating Partnership or any of its Subsidiaries which challenges or impairs the ability of the Company, the Operating Partnership or any of its Subsidiaries to execute, deliver or perform its obligations under any of the Closing Documents or to consummate the transactions contemplated hereby and thereby.

(d) Consents and Approvals . Assuming the accuracy of the representations and warranties of Owner made hereunder, no consent, order, waiver, approval or authorization of, or registration, qualification, designation, declaration or filing with, any Person or Governmental Authority or under any applicable Laws (each, a “ Consent ”) is required to be obtained by the Company, the Operating Partnership or any of their Subsidiaries in connection with the execution, delivery and performance of this Agreement or any other agreement or document contemplated by this Agreement to which the Company or the Operating Partnership is a party, or any agreements or transactions contemplated hereby or thereby, except for those consents, orders, waivers, approvals, authorizations, registrations, qualifications, designations, declarations or filings, the failure of which to obtain or to file, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(e) No Violation . Assuming the accuracy of the representations and warranties of Owner made hereunder, none of the execution, delivery or performance by the Company or the Operating Partnership of this Agreement or any other agreement or document contemplated by this Agreement to which the Company or the Operating Partnership is a party, or any agreement or transaction contemplated hereby or thereby or the consummation of the Consolidation Transaction does or will, with or without the giving of notice, lapse of time, or both, violate, conflict with, result in a breach of, or constitute a default under or give to others any right of termination, acceleration, cancellation or other right under, (i) the organizational documents of the Company and the Operating Partnership, (ii) any material agreement, document or instrument to which the Company or the Operating Partnership is a party or (iii) any material term or provision of any judgment, order, writ, injunction, or decree binding on the Company or the Operating Partnership, except for, in the case of clause (ii) or (iii), any such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(f) OP Units and Common Stock . The OP Units and the Common Stock, when issued and delivered in accordance with the terms of this Agreement for the consideration described in this Agreement, will have been (i) duly authorized by the Company or the Operating Partnership, as applicable, and when issued against the consideration therefor, will be validly issued by the Company or the Operating Partnership, respectively, (ii) fully paid and non-assessable (with respect to the Common Stock), (iii) not subject to preemptive or similar rights created by statute or any agreement to which the Company or the Operating Partnership is a party or by which it is bound and (iv) free and clear of all Liens created by the Company or the Operating Partnership (other than Liens created by the OP Agreement or the Company’s Articles of Amendment and Restatement). In addition, upon such issuance of OP Units, Owner will be admitted as a limited partner of the Operating Partnership and, following distribution by Owner of OP Units to its Participants, such Participants will be admitted as limited partners of the Operating Partnership in accordance with the OP Agreement.

(g) OP Agreement and Articles . Attached hereto as Exhibit E are true and correct copies of the OP Agreement and the Articles of Amendment and Restatement of the Company in substantially final form.

(h) Taxes .

(i) At the effective time of the Closing, the Company shall be organized in a manner so as to qualify for taxation as a REIT pursuant to Sections 856 through 860 of the Code. The Company intends to elect to be taxed and to operate in a manner that will allow it to qualify as a REIT for U.S. federal income tax purposes commencing with its taxable year ending December 31 of the year in which the Closing takes place.

(ii) At the effective time of the Closing, the Operating Partnership shall be classified as a partnership and not an association or publicly-traded partnership taxable as a corporation for U.S. federal income tax purposes.

(i) Bankruptcy . No bankruptcy or similar insolvency proceeding has been filed or is currently contemplated with respect to the Company, the Operating Partnership or any of its Subsidiaries.

(j) Limited Activities . Except for activities in connection with the IPO and Consolidation Transaction, neither the Company nor the Operating Partnership has engaged in any material business or incurred any material obligations.

(k) No Broker . None of the Company, the Operating Partnership, any of their Subsidiaries, or any of their officers, directors or employees, to the extent applicable, has entered into any agreement with any broker, finder or similar agent or any Person or firm that will result in the obligation of Owner or any of its Affiliates to pay any finder’s fee, brokerage fees or commissions or similar payment in connection with the transactions contemplated by this Agreement.

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(l) The Operating Partnership is not and shall not be as of the Closing Date an employee benefit plan as defined in Section 3(30) of ERISA, which is subject to Title I of ERISA, nor a plan as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, and neither the assets of the Company nor those of the Operating Partnership shall not constitute “plan assets” of one or more of such plans within the meaning of Department of Labor Regulation Section 2510.3-101.

(m) No Other Representations or Warranties . Other than the representations and warranties expressly set forth in this Section 4.I, neither the Company nor the Operating Partnership shall be deemed to have made any other representation or warranty in connection with this Agreement or the transactions contemplated hereby.

All representations and warranties of the Company and the Operating Partnership contained in this Agreement shall expire at Closing.

II. Representations and Warranties of Owner . Owner hereby represents and warrants to the Company and the Operating Partnership, as of November 28, 2011, as set forth below in this Section 4.II, which representations and warranties are true and correct as of November 28, 2011 (or such other date specifically set forth below), except as disclosed in the Consent Solicitations or the disclosure letter delivered from Owner to the Company and the Operating Partnership simultaneously with the execution of this Agreement (the “ Disclosure Letter ”), as may be amended from time to time prior to the Closing Date with Consent of the Company and the Operating Partnership.

(n) Organization; Authority . Owner is a limited liability company, duly organized and validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite power and authority to enter into this Agreement and each agreement or other document contemplated by this Agreement and to carry out the transactions contemplated hereby and thereby, and to own, lease and/or operate its Property, as applicable, and its other assets, and to carry on its business as presently conducted. Owner, to the extent required under applicable laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(o) Section 4.II(o) of the Disclosure Letter sets forth as of November 28, 2011 with respect to Owner (A) each Subsidiary of Owner, if applicable, (B) the ownership interest in each such Subsidiary and (C) if not wholly owned by Owner, the identity and ownership interest of each of the other owners of such Subsidiary. Owner is (i) the fee owner of Parcel I pursuant to the Deed and sublessee of Parcel I pursuant to the Operating Sublease, and (ii) the ground lessee of Parcel II Operating Sublease. Each Subsidiary of Owner has been duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization, and has all power and authority to own, lease and/or operate its real properties and its other assets, and to carry on its business as presently conducted. Each Subsidiary of Owner, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(p) Due Authorization . The execution, delivery and performance by Owner of this Agreement and each other agreement or document contemplated by this Agreement to which it is a party has been duly and validly authorized by all necessary actions required of Owner. This Agreement and each other agreement or document contemplated by this Agreement executed and delivered by or on behalf of Owner constitutes, or when executed and delivered will constitute, the legal, valid and binding obligation of Owner, each enforceable against Owner in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(q) Capitalization . Section 4.II(q) of the Disclosure Letter sets forth as of November 28, 2011 a true, correct and complete description of the capitalization of Owner as provided in the books and records of Owner, including the override interests of the Supervisor. All of the issued and outstanding equity interests of Owner are validly issued and, to Owner’s Knowledge, are not subject to preemptive rights or appraisal, dissenters or similar rights. There are no outstanding rights to purchase, subscriptions, warrants, options or any other security convertible into or exchangeable for equity interests in Owner or any Subsidiary.

(r) Licenses and Permits . To Owner’s Knowledge, all notices, licenses, permits, certificates and authorizations required for the continued use, occupancy, management, leasing and operation of its Property, and for the continued conduct and operation of the business of Owner have been obtained or can be obtained without unreasonable cost, and to the extent the same have been obtained, are in full force and effect and (to the extent required in connection with the transactions contemplated by this Agreement) are assignable to Company or the Operating Partnership or a Subsidiary thereof, except in each case for items that, if not so obtained, obtainable, effective and/or assigned, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To Owner’s Knowledge, none of Owner, any if its Subsidiaries or any third party has taken any action that (or failed to take any action the omission of which) would result in the revocation of any such notice, license, permit, certificate or authorization where such revocation or revocations would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(s) Litigation . Except for the Case, there is no action, suit or proceeding pending or, to Owner’s Knowledge, threatened against Owner or any if its Subsidiaries which, if adversely determined, would, individually or together with all such other actions, reasonably be expected to have a Material Adverse Effect. As of November 28, 2011, there was no action, suit or proceeding pending or, to Owner’s Knowledge, threatened against Owner or any of its Subsidiaries which challenges or impairs the ability of Owner or any of its Subsidiaries to execute, deliver or perform its obligations hereunder or to consummate the transactions contemplated hereby. To Owner’s Knowledge, there is no outstanding order, writ, injunction or decree of any Governmental Authority against it or affecting all or any portion of the Assets, which in any such case would reasonably be expected to have a Material Adverse Effect or that would impair Owner’s ability to execute, deliver or perform its obligations under this

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Agreement. Owner has not received any written notice of any pending or threatened proceedings for the rezoning (i.e., as opposed to the current zoning) of the Property or any portion thereof which would substantially and materially impair the current or proposed use thereof.

(t) Compliance with Laws . Owner and its Subsidiaries have conducted their respective businesses and maintained the Property in compliance with all applicable Laws, except for such failures that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither Owner nor any of its Subsidiaries has Knowledge of, or has been informed in writing of, any continuing violation of any laws relating to the conduct of the business of Owner and/or any of its Subsidiaries or the commencement of any investigation respecting any such possible violation, except in each case for violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To Owner’s Knowledge, as presently conducted, none of the operation of the buildings, fixtures and other improvements comprising a part of the Property is in violation of any applicable building code, zoning ordinance or other “land use” law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(u) Property Interest .

(i) Owner is: (A) the holder of fee title to Parcel I pursuant to the Deed; (B) the holder of a valid subleasehold interest in Parcel I pursuant to the Operating Sublease; and (C) the holder of a valid ground leasehold estate in the Parcel II pursuant to the Ground Lease, in each case, free and clear of all Liens, except for Permitted Encumbrances.

(ii) With respect to the Leases and each lease under which Owner was a landlord or sublandlord at November 28, 2011 that is material to the Property, (A) such lease is valid and binding against Owner, and to Owner’s Knowledge, the other parties thereto, and in full force and effect, (B) neither Owner nor any Subsidiary party thereto, and to the Owner’s Knowledge, no other party thereto is in material violation of, or material default under, such lease, (C) Owner has not granted an option or a right of first refusal or offer, (D) to Owner’s Knowledge, no event has occurred and is pending, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or material default by Owner or any of its Subsidiaries or the applicable lessor under the relevant lease and (E) complete (in all material respects) copies of all such leases have been made available to the Operating Partnership.

(v) Leases . Except for matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each of the leases to which Owner or any of its Subsidiaries is a party or by which Owner or any of its Subsidiaries or the Property is bound or subject, is in full force and effect, and constitutes the legal, valid and binding obligation of Owner or any of its Subsidiaries, and to Owner’s Knowledge, the other parties thereto, enforceable against each such party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). To Owner’s Knowledge, no tenant under any such Lease is presently the subject of any voluntary or involuntary bankruptcy or insolvency proceedings, except for matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(w) Insurance . Owner has in place the public liability, casualty and other insurance coverage with respect to the Property by such Owner as Owner reasonably deems necessary, including in all cases, such coverage as is required under the terms of any Existing Loan or the Leases. To Owner’s Knowledge, each such insurance policy is in full force and effect and all premiums currently due and payable thereunder have been fully paid. To Owner’s Knowledge, Owner has not received from any insurance company any written notices of cancellation or intent to cancel any insurance which remain outstanding.

(x) Environmental Matters . Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) Owner is not in violation of, and has not failed to comply with, any applicable environmental laws, (ii) neither Owner nor any of its Subsidiaries has received any written notice from any governmental authority or any other written notice or written claim from any other party alleging that Owner is not in compliance with applicable environmental laws with respect to the Property (which non-compliance, if any, has not been remedied or resolved or is not being remedied or resolved), (iii) Owner or its Subsidiaries, as applicable, has all permits, authorizations and approvals required under any applicable environmental laws and is in compliance with their principal terms and conditions and (iv) there has not been a release of a hazardous substance on the Property that would require investigation or remediation under applicable environmental laws. The representations and warranties contained in this subsection constitute the sole and exclusive representations and warranties made by Owner concerning environmental matters.

(y) Eminent Domain . There is no existing or, to Owner’s Knowledge, threatened in writing condemnation, eminent domain or similar proceeding which would affect the Property.

(z) Consents and Approvals . The requisite consent of the Participants in Owner to approve this Agreement is as set forth on Section 4.II(z) of the Disclosure Letter (the “ Requisite Consent ”). Assuming the accuracy of the representations and warranties of the Company and the Operating Partnership made hereunder, and except (i) for the Requisite Consent of the Participants in Owner to approve this Agreement, (ii) for the consent of Lessor contemplated in Section 3(b)(xiv) above and (iii) as shall have been satisfied on or prior to the Closing Date, no consent is required to be obtained by Owner in connection with the execution, delivery and performance of this Agreement or any other agreement or document contemplated by this Agreement to which Owner is a party and the transactions contemplated hereby, except for those consents, the failure of which to obtain or to file, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (it being agreed that the failure to obtain either (A) the consent of any mortgage lender or (B) the foregoing Requisite Consent of Participants in Owner would be expected to have a Material Adverse Effect).

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constitute a default under or give to others any right of termination, acceleration, cancellation or other right under, (i) the organizational documents of Owner, (ii) any material agreement, document or instrument to which Owner or its assets or properties are bound or (iii) any material term or provision of any judgment, order, writ, injunction, or decree binding on Owner, except for, in the case of clause (ii) or (iii), any such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(bb) Taxes . Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:

(i) Owner has timely filed all tax returns and reports required to be filed by it with a governmental authority (after giving effect to any filing extension properly granted). All such tax returns and reports are accurate and complete in all material respects, and Owner has paid (or had paid on its behalf) all taxes shown thereon as owing. No deficiencies for any taxes have been proposed, asserted or assessed in writing against Owner, and no requests for waivers of the time to assess any such Taxes are pending.

(ii) There are no liens for taxes (other than statutory liens for taxes not yet due and payable) upon any of the assets of Owner.

(iii) Owner is and has been since its formation treated as a partnership or an entity disregarded as an entity separate from its owner for U.S. federal income tax purposes, and no governmental authority responsible for the assessment or collection of tax has challenged such treatment.

(iv) There are no pending or, to Owner’s Knowledge, threatened audits, assessments or other actions for or relating to any liability in respect of income or material non-income Taxes of Owner or any of its Subsidiaries, or any matters under discussion with any Tax authority with respect to income or non-income Taxes that are likely to result in an additional liability for Taxes with respect to Owner or its Subsidiaries, and neither Owner nor its Subsidiaries is, or has ever been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax protection, Tax allocation agreement or similar contract.

(cc) Non-Foreign Status . Owner (or, if Owner is a disregarded entity within the meaning of Section 1.1445-2(d)(2)(iii), its sole owners for U.S. federal income tax purposes) is not a foreign person (within the meaning of Section 1445(f)(3) of the Code). No amount is required to be withheld by the Company or the Operating Partnership (or any of their respective Affiliates) in respect of consideration treated for U.S. federal income tax purposes as paid to Owner pursuant to this Agreement.

(dd) Contracts and Commitments . Except as set forth in Section 4.II(dd) of the Disclosure Letter, neither Owner nor any of its Subsidiaries is a party to:

(i) any agreement pursuant to which Owner or any of its Subsidiaries provides property management, construction management, asset management, leasing or other real-estate related services to any Person other than a Contributing Entity or a Management Company;

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(ii) any agreement pursuant to which Owner or any of its Subsidiaries would be required to pay severance to any member, managing member, partner, general partner, director, officer or employee, to the extent applicable, of Owner, any of its Subsidiaries or the Supervisor;

(iii) any agreement with another Person limiting or restricting in any material respect the ability of Owner or any of its Subsidiaries to enter into or engage in any market or line of business (other than agreements with tenants entered into in the ordinary course of business relating to the business that can be conducted at the leased premises and the covenants in any Existing Loan document);

(iv) any agreement for the sale of any of the assets of Owner or any of its Subsidiaries other than in the ordinary course of business, or for the grant to any person or entity of any Liens on or preferential rights to purchase (or buy-sell or similar rights with respect to) any of the assets of Owner or any of its Subsidiaries other than Liens or any such rights granted to tenants or other third parties for non-material portions of the Property (e.g., outparcels);

(v) any agreement involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement, except for the Owner’s organizational documents, any agreement with any other Contributing Entity or Management Company and any such agreements that are terminable upon thirty (30) days’ or less notice without penalty or premium; or

(vi) any other agreement (or group of related agreements) the performance of which presently requires aggregate payments be made from Owner or any of its Subsidiaries in excess of $1,000,000 per year other than to its Affiliates.

With respect to each of the contracts to which Owner or any of its Subsidiaries is a party and which is required to be set forth on Section 4.II(dd) of the Disclosure Letter (the “ Material Contracts ”), such Material Contract is in full force and effect and is the legal, valid and binding obligation of Owner or its Subsidiaries, and, to Owner’s Knowledge, the other parties thereto, as applicable, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Complete (in all material respects) copies of the Material Contracts have been made available to the Operating Partnership. With respect to each Material Contract, neither Owner nor any of its Subsidiaries that is party thereto nor, to Owner’s Knowledge, any other party, is in material breach or material violation of, or material default under, any such Material Contract, and to Owner’s Knowledge, no event has occurred and is pending which after the giving of notice, with lapse of time or otherwise would constitute a material breach or material default by Owner, any of its Subsidiaries or any other party to such Material Contract.

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(ee) Existing Loans . Section 4.II(ee) of the Disclosure Letter sets forth financings encumbering the properties (the “ Existing Loans ”), including in each case the names of the lender and borrower thereunder and the outstanding principal balance as of the date that is six months prior to the Closing Date. With respect to each Existing Loan, (i) the lender has not declared in writing a default or event of default, (ii) the lender has not brought any claim in writing under any guaranty and (iii) to Owner’s Knowledge, no event has occurred which, after the giving of notice, with lapse of time, or otherwise, would constitute a monetary default or a material non-monetary default by the borrower thereunder or give rise to any material claims by the lender under any guaranties provided with respect thereto. Complete (in all material respects) copies of the Existing Loan Documents have been made available to the Operating Partnership.

(ff) Bankruptcy . No bankruptcy or similar insolvency proceeding has been filed or is currently contemplated with respect to Owner or any of its Subsidiaries.

(gg) Employees . Owner has no employees.

(hh) Investment .

(i) Owner is acquiring Common Stock and/or OP Units solely for its own account for the purpose of investment and not as a nominee or agent for any other person or entity and with a view to, or for offer or sale in connection with, any distribution of any thereof in violation of U.S. federal securities laws, except for distributions of Common Stock and OP Units to Participants in Owner who Owner reasonably believes, which shall be based on representations made by such Participants to Owner, are Accredited Investors. Owner agrees and acknowledges that, except as set forth in the preceding sentence, it will not, directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose of (hereinafter, “ Transfer ”) any of the Common Stock or OP Units, unless (i) the Transfer is pursuant to an effective registration statement under the Securities Act (or an exemption from such registration in accordance with clause (ii) below) and qualification or other compliance under applicable blue sky or state securities laws, (ii) counsel for the transferor (which counsel shall be reasonably acceptable to the Company or and/or the Operating Partnership, as the case may be) shall have furnished the Company and/or the Operating Partnership with an opinion, reasonably satisfactory in form and substance to the Company and/or the Operating Partnership, as the case may be, to the effect that no such registration is required because of the availability of an exemption from registration under the Securities Act and (iii) the Transfer otherwise is permitted by the amendment and restatement of the Company and/or the Operating Partnership’s Partnership Agreement. The term “Transfer” shall not include any redemption or exchange of the OP Units for Common Stock pursuant to the Operating Partnership’s Partnership Agreement. Notwithstanding the foregoing, no Transfer shall be made unless it is permitted under the Operating Partnership’s Partnership Agreement.

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necessary or desirable, and has been given the opportunity to obtain any additional information or documents and to ask questions and receive answers about such information and documents, the Company, the Operating Partnership and the business and prospects of the Company and the Operating Partnership which Owner deems necessary or desirable to evaluate the merits and risks related to its investment in the Common Stock and/or OP Units; and Owner understands and has taken cognizance of all risk factors related to the purchase of the Common Stock and/or OP Units. Owner is relying upon its own independent analysis and assessment (including with respect to taxes), and the advice of Owner’s advisors (including tax advisors), and not upon that of the Company or the Operating Partnership or any of the Company’s or the Operating Partnership’s Affiliates, for purposes of evaluating, entering into, and consummating the transactions contemplated hereby.

(ii) Holding Period . Owner acknowledges that it has been advised that (i) the OP Units are not redeemable or exchangeable for Common Stock for a minimum of twelve (12) months, (ii) the OP Units and Common Stock issued pursuant to this Agreement, and any Common Stock issued in exchange for, or in respect of a redemption of, the OP Units, are “restricted securities” (unless registered in accordance with applicable U.S. securities laws) under applicable federal securities laws and may be Transferred only in accordance with Section 4.II(hh)(i) above and Owner understands that the Operating Partnership has no obligation or intention to register any OP Units, except to the extent set forth in the Registration Rights Agreement. Accordingly, Owner and the Participants may have to bear indefinitely, the economic risks of an investment in such OP Units, and a notation shall be made in the appropriate records of the Operating Partnership indicating that the OP Units (and any Common Stock for which OP Units may, in certain circumstances, be exchanged or redeemed) and are subject to restrictions on transfer.

(jj) Accredited Investor . Owner is an “accredited investor” under the Securities Act and shall reasonably believe, which shall be based on representations made by its Participants to Owner, that each of its Participants to whom OP Units or Common Stock will be distributed are Accredited Participants. Owner previously has provided the Operating Partnership and the Company with an Accredited Investor Questionnaire duly executed by Owner. No event or circumstance has occurred since delivery of such Questionnaire to make the statements contained therein false or misleading. Owner acknowledges that in issuing any shares of Common Stock or OP Units pursuant to the terms of this Agreement, the Company and the Operating Partnership are relying on the representations made by each of its Participants electing to receive shares of Common Stock or OP Units, which representations were set forth in the consent form enclosed with Consent Solicitation and returned by such investor.

(kk) No Broker . Neither Owner nor any of its Subsidiaries nor any of their members, managing members, partners, general partners, directors, officers, employees or its Supervisor, to the extent applicable, has entered into any agreement with any broker, finder or similar agent or any Person or firm that will result in the obligation of the Company, the Operating Partnership or any of their Affiliates to pay any finder’s fee, brokerage fees or commissions or similar payment in connection with the transactions contemplated by this Agreement.

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(ll) No Other Representations or Warranties . Other than the representations and warranties expressly set forth in this Section 4.II, Owner shall not be deemed to have made any other representation or warranty in connection with this Agreement or the transactions contemplated hereby.

All representations and warranties of Owner contained in Section 4.II (as qualified by the Disclosure Letter) or in any Schedule, Exhibit, certificate or affidavit delivered pursuant to the Agreement shall survive the Closing.

Notwithstanding anything to the contrary in this Agreement, following the Closing and issuance of OP Units, Common Stock and/or cash to Owner, neither Owner nor any member, managing member, partner, general partner, director, officer or employee, to the extent applicable, of Owner shall be liable under this Agreement for monetary damages (or otherwise) for breach of any of its representations, warranties, covenants and obligations contained in this Agreement or in any Schedule, Exhibit, certificate or affidavit delivered by it pursuant thereto.

5. Payment of Consideration .

(a) On the Closing Date, the Operating Partnership shall, in exchange for the transfer of the Assets and the other deliveries from Owner at Closing, pay to Owner a number of OP Units, shares of Class A Common Stock, shares of Class B Common Stock and/or cash with an aggregate value equal to the Consideration. The number of OP Units, shares of Class A Common Stock, shares of Class B Common Stock and/or cash to be allocated to Owner shall be determined pursuant to Section 3(a), and Owner shall distribute such Consideration to its Participants, as contemplated thereby, as soon as practicable after the Closing Date .

(b) Only Participants in Owner who Owner reasonably believes, based on representations made by such Participants to Owner or other evidence, are Accredited Investors may receive OP Units or Common Stock hereunder.

(c) No fractional OP Units or shares of Common Stock shall be issued to a Participant pursuant to this Agreement. If aggregating all OP Units or shares of Common Stock that a Participant would otherwise be entitled to receive hereunder would require the issuance of a fractional OP Unit or a fractional share of Common Stock, in lieu of such fractional OP Unit or fractional share of Common Stock, such Participant shall be entitled to receive one OP Unit or one share of Common Stock for each fractional OP Unit or share of Common Stock of 0.50 or greater. Neither the Operating Partnership nor the Company will issue an OP Unit or share of Common Stock, respectively, for any fractional share of OP Unit or Common Stock, respectively, of less than 0.50.

(d) As soon as practicable following the determination of the Consideration and prior to the Closing, all calculations relating to Consideration shall be performed in good faith by, or under the direction of, the Company and the Operating Partnership, and, absent manifest error, shall be final and binding upon Owner and its Participants.

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pursuant to the terms hereof as limited partners (the “ Amendment ”) and (ii) Common Stock shall be evidenced through the electronic registration of such Common Stock with the Depository Trust Company, a New York corporation (“ DTC Registered REIT Stock ”) (except that the Class B Common Stock may be evidenced in a different form to be determined by the Company) in such names as Owner shall direct, based on instructions from Participants receiving Common Stock. Each Participant in Owner receiving OP Units shall be instructed to execute, in connection with its consent to the transactions contemplated by this Agreement, an agreement to become a party to and be bound by such Partnership Agreement. Owner may withhold distribution of any OP Units to any investor until such investor executes such an agreement.

6. Risk of Loss .

(a) The risk of loss relating to Owner’s Property Interest and the underlying Property prior to the Closing shall be borne by Owner. If, prior to the Closing, (a) the Property is materially or totally destroyed or damaged by fire or other casualty or (b) the Property is materially or totally taken by eminent domain or through condemnation proceedings, then the Operating Partnership may, at its option (such election to be made as soon as reasonably practicable following such occurrence and in any event prior to the Closing), determine not to acquire Owner’s fee interests in Parcel I or Owner’s interests in the Property under the Leases. Owner shall not have any obligation to repair or replace any such damage, destruction or taken property. Unless the Operating Partnership elects not to acquire Owner’s fee interest in Parcel I or Owner’s interests in the Property under the Leases, at the Closing, Owner shall pay or cause to be paid to the Operating Partnership any sums collected (directly or indirectly) by Owner, if any, under any policies of insurance or award proceeds relating to such casualty or condemnation, if any, and otherwise assign to the Operating Partnership all rights (directly or indirectly) of Owner to collect such sums as may then be uncollected except to the extent required for collection costs or repairs by Owner prior to the Closing Date, and provided that Owner shall retain any insurance proceeds attributable to lost rents or other items applicable to any period prior to the Determination Date, and all rights thereto. As used in this Section 6, “materially” destroyed, damaged or taken refers to any casualty loss or damage or any loss due to condemnation, in either case, to the Property or any portion thereof if (a) the cost of repairing or restoring the premises in question to substantially the same condition which existed prior to the event of damage would be, in the opinion of an architect or other qualified expert selected by Owner and reasonably approved by the Operating Partnership, or the amount of the proposed condemnation award is, equal to or greater than ten percent (10%) of the Consideration for the Property, (b) such loss or damage would entitle tenants occupying more than ten percent (10%) of the total rentable square footage at the Property, in the aggregate, to terminate their Subleases or (c) such loss or damage otherwise materially impairs the current use or square footage of such Property (including parking, if material to such use) or access thereto. This Section 6 is an express agreement to the contrary under Section 5-1311 of the New York General Obligation Law.

7. Management Services .

The parties intend that this Section 7 shall survive any termination of this Agreement.

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(a) Following the date of the closing of the IPO and during any remaining Option Term, the Company shall perform on behalf of Owner the same asset management services as now provided by the Supervisor in consideration of an asset management fee equal to $77,765 per annum, which asset management fee shall be increased, on the first day of July of each year, in an amount based on the annual cumulative increase in C.P.I during such year, commencing in July 2014. The asset management fee shall be payable in equal monthly installments on the first day of each month.

(b) Following the date of the closing of the IPO and during any remaining Option Term, the Company may, subject to Section 7(c) below, instruct Owner and 112 West 34 ^th Street Company L.L.C. (“ 112 Company ”), to terminate that certain management agreement between 112 Company and Cushman & Wakefield, Inc. attached as Schedule 7(b)(i) hereto or that certain leasing agreement between 112 Company and Cushman & Wakefield, Inc. attached as Schedule 7(b)(ii) hereto, in which case the Company, or a Subsidiary of the Company, shall perform on behalf of Owner and 112 Company the property management, leasing, construction and other services on the fee formulas currently in effect as described in the terminated agreement, as applicable (or on any other market terms approved by a majority of the Independent Directors and by Helmsley).

(c) All the foregoing services referenced in this Section 7 are subject to a right of termination by Malkin on behalf of Owner on the basis that upon any such termination they shall engage as property manager the firm selected from among Cushman & Wakefield, Newmark Knight Frank, and CB Richard Ellis (or any successor of any such firm) whose proposal Malkin reasonably determines to the most economically favorable to Owner.

8. Assignment .

This Agreement shall be binding upon, and shall be enforceable by and inure to the benefit of, the parties hereto and their permitted respective heirs, legal representatives, successors and assigns; provided, however, that this Agreement may not be assigned (except by operation of law) by any party without the prior written consent of the other parties, and any attempted assignment without such consent shall be null and void and of no force and effect, except that the Operating Partnership may designate assignees and otherwise may assign its rights and obligations hereunder to a wholly-owned subsidiary of the Operating Partnership. For the avoidance of doubt, any reference to an acquisition by the Operating Partnership shall also be deemed to refer to an acquisition by any of its Subsidiaries.

9. Notices .

All notices and other communications under this Agreement shall be in writing and shall be deemed given when (a) delivered personally, (b) five (5) Business Days after being mailed by certified mail, return receipt requested and postage prepaid, (c) one (1) Business Day after being sent by a nationally recognized overnight courier or (d) transmitted by facsimile or e-mail to the parties at the following addresses (or at such other address for a party as shall be specified by notice from such party). A copy of each notice to Owner shall be sent to Helmsley.

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To Owner :

112 West 34 ^th Street Associates L.L.C.

c/o Malkin Holdings LLC

One Grand Central Place

60 East 42nd Street

New York, NY 10165

Facsimile: (212) 986-8795

Attn: Anthony E. Malkin

with a copy to:

Proskauer Rose LLP

1585 Broadway, Room 2256

New York, NY 10036

Facsimile: (212) 969-2900

Attn: Arnold S. Jacobs

To the Company or the Operating Partnership :

c/o Malkin Holdings LLC

One Grand Central Place

60 East 42nd Street

New York, NY 10165

Attn: Anthony E. Malkin

with a copy to:

Clifford Chance US LLP

31 West 52nd Street

New York, NY 10019

Facsimile: (212) 878-8375

Attn: Larry P. Medvinsky

To Helmsley :

c/o Helmsley Enterprises, Inc.

230 Park Avenue—Suite 659

New York, NY 10169

Facsimile: (212) 867-7570

Attn: General Counsel

Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square, 38th Floor

New York, NY 10036

Facsimile: (917) 777-2600

Attn: Benjamin F. Needell

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10. Descriptive Headings .

The descriptive headings in this Agreement are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

11. No Recording .

Neither this Agreement nor any memorandum or short form hereof may be recorded.

12. Entire Agreement .

This Agreement and the Closing Documents, including, without limitation, the exhibits hereto and thereto, constitute the entire agreement and supersede each prior agreement and understanding, whether written or oral, among the parties regarding the subject matter of this Agreement and the Closing Documents. This Agreement is not intended to confer any rights or remedies on any Person other than the parties hereto, other than the Estate of Leona M. Helmsley and its Affiliates and Malkin Holdings LLC in respect of the following sentence. Nothing herein shall be deemed to affect the rights of the Estate of Leona M. Helmsley or any of its Affiliates, or Malkin Holdings LLC pursuant to (a) a separate agreement, of even date herewith, between Malkin Holdings LLC and the Estate of Leona M. Helmsley in respect of the Committee or (b) the separate agreement, dated January 14, 2011, by and among Malkin Holdings LLC, LMH 34 LLC, LMH 1333 LLC, LMH 1350 LLC, LMH Equities LLC, Supervisory Management Corp., LMH EBC, LLC, LMH 1400 LLC, LMH Fisk LLC and LMH Lincoln LLC, and in the event of a conflict between either such agreement and this Agreement, the terms of such separate agreement shall control.

13. Amendment; Waiver .

Any amendment hereto shall be in writing and signed by all parties hereto. No waiver of any provisions of this Agreement shall be valid unless in writing and signed by the party against whom enforcement is sought. This Agreement may be amended without the consent of any Participant that is not a party hereto, provided that such amendment does not adversely affect the economic benefits to the Participants (taking into account the tax treatment).

14. Severability .

Each provision of this Agreement will be interpreted so as to be effective and valid under applicable Law, but if any provision is held invalid, illegal or unenforceable under applicable Law in any jurisdiction, then such invalidity, illegality or unenforceability will not affect any other provision, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision never had been included in this Agreement.

15. Governing Law .

This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, regardless of any laws that might otherwise govern under applicable principles of conflict of laws thereof.

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16. Counterparts .

This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to each other party.

17. Jurisdiction .

The parties hereby (a) submit to the exclusive jurisdiction of any state or federal court sitting in New York County, New York with respect to any dispute arising out of this Agreement or any transaction contemplated hereby to the extent such courts would have subject matter jurisdiction with respect to such dispute and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above named courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum or that the venue of the action is improper.

18. Dispute Resolution .

The parties intend that this Section 18 will be valid, binding, enforceable, exclusive and irrevocable and that it shall survive any termination of this Agreement.

(a) Upon any dispute, controversy or Claim arising out of or relating to this Agreement or the enforcement, breach, termination or validity thereof (“ Dispute ”), the party raising the Dispute will give written notice to the other parties to the Dispute describing the nature of the Dispute following which the parties to such Dispute shall attempt for a period of ten (10) Business Days from receipt by the parties of notice of such Dispute to resolve such Dispute by negotiation between representatives of the parties hereto who have authority to settle such Dispute. All such negotiations shall be confidential and any statements or offers made therein shall be treated as compromise and settlement negotiations for purposes of any applicable rules of evidence and shall not be admissible as evidence in any subsequent proceeding for any purpose. The statute of limitations applicable to the commencement of a lawsuit shall apply to the commencement of an arbitration hereunder, except that no defense based on the running of the statute of limitations will be available based upon the passage of time during any such negotiation. Regardless of the foregoing, a party shall have the right to seek immediate injunctive relief pursuant to clause (c) below without regard to any such 10-day negotiation period.

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arbitrator (unless such period is extended by the arbitrator for good cause shown) and shall be conducted as expeditiously as possible, in any event not to exceed forty-five (45) days. The award, which shall set forth the arbitrator’s findings of fact and conclusions of law, shall be filed with JAMS and mailed to the parties no later than thirty (30) days after the close of the arbitration hearing. The arbitration award shall be final and binding on the parties and not subject to collateral attack. Judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.

(c) Notwithstanding the parties’ agreement to submit all Disputes to final and binding arbitration before JAMS, the parties shall have the right to seek and obtain temporary or preliminary injunctive relief in any court having jurisdiction thereof pursuant to Section 7.8. Such courts shall have authority to, among other things, grant temporary or provisional injunctive relief in order to protect any party’s rights under this Agreement. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect.

(d) The prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees, and the non-prevailing party shall pay all expenses and fees of JAMS, all costs of the stenographic record, all expenses of witnesses or proofs that may have been produced at the direction of the arbitrator and the fees, costs and expenses of the arbitrator. The arbitrator shall allocate such costs and designate the prevailing party or parties for these purposes.

19. Rules of Construction .

(a) The parties agree that they have been represented by counsel during the negotiation, preparation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

(b) The words “hereto,” “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph, exhibit and schedule references are to the articles, sections, paragraphs, exhibits and schedules of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” All terms defined in this Agreement shall have the defined meanings contained herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time, amended, qualified or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns.

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20. Time of the Essence .

Time is of the essence with respect to all obligations under this Agreement.

21. No Personal Liability Conferred .

This Agreement shall not create or permit any personal liability or obligation on the part of the Supervisor or any Participant, shareholder, managing member, general partner, director, officer or employee of Owner, the Supervisor, the Company or the Operating Partnership, to the extent applicable, in their capacities as such; provided that nothing in this Section 21 shall be deemed to affect any liability or obligation of any Person pursuant to the Representation, Warranty and Indemnity Agreement among among the Principals, the Company and the Operating Partnership.

22. Changes to Form Agreements .

Owner agrees and confirms that the terms of the OP Units and Common Stock and the Consent Solicitation are not final and may be modified depending on the prevailing market conditions at the time of the IPO. By executing this Agreement, Owner hereby authorizes the Company or the Operating Partnership to, and understands and agrees that the Company or the Operating Partnership may make changes (including changes that may be deemed material) to the Consent Solicitation, and Owner agrees to receive OP Units, shares of Common Stock and/or cash, as the case may be, with such final terms and conditions as the Operating Partnership and the Company shall determine, provided that such changes do not affect Owner in a manner materially different from the Contributing Entities. In addition, Owner acknowledges that (a) it understands that the information presented in the Consent Solicitation and the attachments thereto will be preliminary and is subject to change (particularly management’s discussion and analysis of financial condition and results of operation, the financial statements and footnotes thereto, the preliminary pro forma financial statements and footnotes thereto, the property information, the IPO Price and the assumed range of shares estimated to be offered in the IPO) in connection with the completion of the audit, the review and comments of the SEC and the investor feedback received during the course of the IPO, (b) the Consolidation Transactions may be consummated even if less than all of the Contributing Entities and the Public Entities participate in the Consolidation Transactions, (c) except for Empire State Building Associates L.L.C. and Empire State Building Company L.L.C., the Consolidation Transaction is not conditioned on the participation of any Contributing Entity, (d) there is likely to be an extended period of time before the Consolidation Transaction is completed and the terms of the Consolidation Transaction as described in the Consent Solicitations, including the Values, may be significantly different than described in such documents existing as of November 28, 2011 and (e) notwithstanding the foregoing differences, this Agreement will be binding.

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23. Further Assurances .

Owner on the one hand and the Company and the Operating Partnership on the other hand shall take such other actions and execute such additional documents prior to and following the Closing as the other may reasonably request in order to effect the transactions contemplated hereby.

24. Reliance .

Each party to this Agreement acknowledges and agrees that it is not relying on tax advice or other advice from the other party to this Agreement, and that it has consulted with or will consult with its own advisors. The Operating Partnership shall not be liable for any damages resulting from a successful challenge of the treatment or characterization by any taxing authority of the transactions contemplated in this Agreement.

25. Survival .

The covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall not survive the Closing, except for those covenants and agreements contained herein and therein which by their terms apply in whole or in part after the Closing and then only to such extent.

26. Equitable Remedies; Limitation on Damages .

The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with the specific terms hereof or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any federal or state court located in New York (as to which the parties agree to submit to jurisdiction for the purpose of such action), this being in addition to any other remedy to which the parties are entitled under this Agreement; provided, however , that nothing in this Agreement shall be construed to permit Owner to enforce consummation of the IPO.

27. Special Provisions .

(a) Notwithstanding any contrary provision herein, any special rights for Helmsley hereunder (including rights of approval and rights to require sale of the Property pursuant to Section 27(b) hereof), shall be in effect as of any date only if Helmsley (or its permitted transferees as contemplated in Section 3(j)) then retains 80% of the interest in Owner as it holds on the date of this Agreement.

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(b) If no purchase of the Assets is made hereunder prior to the expiration of the Option Term for any reason or if a third-party portfolio transaction as described in the Consent Solicitations is consummated prior to the Conclusion, then at Helmsley’s request, the Supervisor shall make reasonable and diligent efforts, including engaging a third-party broker acceptable to Helmsley, to effect a sale of the Assets with 36 months thereafter on the basis that such sale shall be concluded prior to the expiration of such 36 months; and during such sale process, Helmsley shall have full access to such broker engaged for such purpose. Any such sale shall require the requisite consent of the Participants in Owner at the time of such sale in accordance with Owner’s organizational documents.

(c) At any time that a Valuation is commenced in accord with Exhibit A , and so long as such Valuation is being conducted, Helmsley shall be provided copies of all correspondence and appraisals and shall be provided the opportunity to participate in any calls with the Owner’s appraiser or any meeting during the such appraisal process.

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IN WITNESS WHEREOF, Owner, the Company, the Operating Partnership, and Helmsley have executed this Agreement as of the day and year first above written.


EMPIRE STATE REALTY TRUST, INC.

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel

EMPIRE STATE REALTY OP, L.P.

By: Empire State Realty Trust, Inc., its general partner

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel

112 WEST 34TH STREET ASSOCIATES L.L.C. By: Malkin Holdings LLC, Supervisor

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel

THE ESTATE OF LEONA M. HELMSLEY

By:		/s/ Sandor Frankel
Name:		Sandor Frankel
Title:		Executor

By:		/s/ John Codey
Name:		John Codey
Title:		Executor

Signature page to Option Agreement for 112 West 34 ^th Street Associates L.L.C.


AGREED SOLELY AS TO SECTION 27 (b):

/s/ Peter L. Malkin Peter L. Malkin

/s/ Anthony E. Malkin Anthony E. Malkin

Signature page to Option Agreement for 112 West 34 ^th Street Associates L.L.C.

SCHEDULE 2(b)(i)(A)

CALCULATION OF OWNER VALUE

For the purposes of the Agreement, the “ Value ” of Owner shall be calculated pursuant to the formula set forth below. Capitalized terms used in this Schedule 1.8 shall have the meanings set forth below and capitalized terms used in this Schedule 1.8 without definition shall have the meanings assigned to such terms in the Agreement.

Number of OP Units and/or shares of Common Stock = V/IPO Price

V = AP x TIV

where:

V = Value

AP = Allocable Percentage

TIV = Total Inside Value

“ Allocable Percentage ” shall mean the percentage calculated as a fraction, the numerator of which is Owner’s Exchange Value and the denominator of which is the aggregate Exchange Value of the Contributing Entities plus the Management Companies plus Owner plus any other Option Entity to the extent consolidated simultaneously with the Formation Transactions on the Closing Date.

“ Exchange Value ” shall mean the final exchange value determined in accordance with the valuation described in the Prospectus/Consent Solicitation Statement included in the registration statement on Form S-4 for the Company, as the same may be amended or supplemented.

“ Public Equity ” shall mean the product of: (i) the aggregate number of shares of Common Stock sold to the public in the IPO (excluding the over-allotment option, if any) times (ii) the IPO Price.

“ Total Equity ” shall mean the product of: (i) the sum of (A) the aggregate number of shares of Common Stock to be outstanding immediately following the IPO Closing (excluding the over-allotment option, if any) and (B) the aggregate number of OP Units to be outstanding immediately following the IPO Closing other than OP Units held by the Company times (ii) the IPO Price.

“ Total Inside Value ” shall mean the sum of Total Equity minus Public Equity.

Exhibit 10.18

Execution Version

AMENDED AND RESTATED OPTION AGREEMENT

THIS AMENDED AND RESTATED OPTION AGREEMENT (this “ Agreement ”) is made as of September 16, 2013, to amend and restate the Option Agreement dated November 28, 2011 (the “ Original Agreement ”) between 112 West 34th Street Company L.L.C., a New York limited liability company (“ Owner ”), having an office c/o Malkin Holdings LLC, One Grand Central Place, 60 East 42 ^nd Street, New York, New York 10165; Empire State Realty OP, L.P., a Delaware limited partnership (the “ Operating Partnership ”); Empire State Realty Trust, Inc., a Maryland corporation (the “ Company ”), which is the general partner of the Operating Partnership, having an office c/o Malkin Holdings LLC, One Grand Central Place, 60 East 42 ^nd Street, New York, New York 10165, the Estate of Leona M. Helmsley (including, where the context so requires, any affiliated entities, “ Helmsley ”), and, solely with respect to Section 27(b), Peter L. Malkin and Anthony E. Malkin.

RECITALS

C. WHEREAS, Owner is the operating lessee of the premises known as 112-122 West 34 ^th Street, New York, New York (the “ Property ”) pursuant to that certain Indenture of Sublease dated June 1, 1967 by and between 112 West 34 ^th Street Associates L.L.C., as sublessor (the “ Lessor ”), and 112 West 34 ^th Street Company L.L.C., as sublessee, as amended by (i) Agreement dated as of June 2, 1967; (ii) Agreement dated as of June 1, 1974; (iii) Agreement dated as of January 1, 1980; (iv) letter dated as of August 6, 1992; (v) Fifth Sublease Modification Agreement dated as of August 27, 2004; (vi) Sixth Sublease Modification Agreement dated as of March 10, 2008; (vii) Seventh Sublease Modification Agreement dated as of July 10, 2008; and (vii) Eighth Sublease Modification Agreement dated as of December 9, 2009 (collectively, the “ Operating Lease ”).

D. WHEREAS, the Operating Partnership agreed to hold an option to acquire the Assets as defined herein, and Owner agreed to grant such option, on the terms set forth in the Original Agreement.

1. Definitions .

(a) The following definitions shall apply:

(ii) “ AEM ” means Anthony E. Malkin.

(iv) “ Appraiser ” means any independent third party appraiser with experience in valuation matters selected in accordance with Section 2(b) and Exhibit A hereto.

(v) “ Assets ” has the meaning ascribed to it in Section 2(a).

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(vi) “ Business Day ” means any day that is not a Saturday, Sunday or legal holiday in the State of New York.

(viii) “ Claims ” means any claims, liabilities, rights, actions, causes of action, allegations, assertions, suits, complaints, demands or requirements.

(ix) “ Closing ” means the consummation of the acquisition of the Assets pursuant to the Option.

(x) “ Closing Date ” has the meaning ascribed to it in Section 3(a).

(xii) “ Consideration ” has the meaning ascribed to it in Section 2(b) hereof.

(xiv) “ ERISA ” shall mean The Employee Retirement Income Security Act of 1974, as amended.

(xv) “ Excluded Assets ” has the meaning ascribed to it in Section 2(a)(ii).

(xvi) “ Existing Loans ” has the meaning ascribed to it in Section 4(ee).

(xvii) “ Helmsley ” has the meaning ascribed to it in the introductory paragraph hereof.

(xviii) “ Independent Director ” means a director of the Company who is an independent director as defined under the rules of the New York Stock Exchange or other national securities exchange on which the Class A Common Stock is listed.

(xix) “ IPO ” has the meaning ascribed to it in the Recitals.

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(xx) “ IPO Price ” means the price per share of Class A Common Stock in the IPO.

(xxi) “ Knowledge ” means, with respect to Owner, any Subsidiary of Owner, the Company or the Operating Partnership, the current actual knowledge of any Principal or Thomas N. Keltner, Jr. without any duty of investigation or inquiry.

(xxii) “ Lessor ” has the meaning ascribed to it in the Recitals.

(xxiii) “ Lien ” means all pledges, claims, liens, charges, restrictions, controls, easements, rights of way, exceptions, reservations, leases, licenses, grants, covenants and conditions, encumbrances and security interests of any kind or nature whatsoever.

(xxiv) “ Management Companies ” shall mean Malkin Holdings LLC, Malkin Properties, L.L.C., Malkin Properties of New York, L.L.C., Malkin Properties of Connecticut, Inc. and Malkin Construction Corp.

(xxv) “ Material Adverse Effect ” means, as the case may be, a material adverse effect on (i) the assets, business, financial condition or results of operations of Owner taken as a whole (or on the applicable interest in the Property) (as to the representations and warranties relating to Owner) or (ii) the Company, the Operating Partnership and their Subsidiaries and their properties taken as a whole, after giving effect to the Consolidation Transaction and the IPO (as to the representations and warranties relating to the Company and the Operating Partnership), as applicable.

(xxvi) “ Net Working Capital ” means current assets of Owner (excluding cash and cash equivalents, except to the extent required to maintain the normalized level of working capital for Owner) less current liabilities of Owner (excluding the outstanding principal balance under any Existing Loans).

(xxvii) “ Non-Accredited Investor ” means a Participant who is not an Accredited Investor.

(xxviii) “ OP Agreement ” means the agreement of limited partnership of the Operating Partnership, as amended and restated and in effect immediately prior to the closing of the IPO.

(xxix) “ Operating Lease ” has the meaning ascribed to it in the Recitals.

(xxx) “ Operating Partnership ” has the meaning ascribed to it in the introductory paragraph hereof.

(xxxi) “ Option ” has the meaning ascribed to it in Section 2(a)(i) hereof.

(xxxii) “ Option Term ” has the meaning ascribed to it in Section 2(a)(iii) hereof.

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(xxxiii) “ OP Units ” has the meaning ascribed to it in the Recitals.

(xxxiv) “ Owner ” has the meaning ascribed to it in the introductory paragraph hereof.

(xxxv) “ Owner’s Appraiser ” has the meaning ascribed to it in Section 2(b)(ii) hereof.

(xxxvi) “ Participation Interests ” means the limited liability company, general or limited partnership interests in Owner, any other option entity or any Contributing Entity, as applicable and, to the extent a limited liability company, general or limited partnership interests are held by an agent for the benefit of participants, the beneficial ownership of such interests.

(xxxvii) “ Permitted Encumbrances ” means (i) Liens, or deposits made to secure the release of such Liens, securing taxes, the payment of which is not delinquent or the payment of which is actively being contested in good faith by appropriate proceedings diligently pursued; (ii) zoning laws generally applicable to the districts in which the Property is located; (iii) easements for public utilities, encroachments, rights of access and/or other non-monetary matters that do not materially interfere with the use of the Property; (iv) Liens securing any financing or credit arrangements existing as of the Closing Date and assumed by the Operating Partnership; (v) Liens arising under leases entered into in the ordinary course of business; (vi) any exceptions contained in the title policies relating to the Property made available to the Company and the Operating Partnership at or prior to November 28, 2011 that do not materially detract from the value or the marketability of the Property or the ability of the Property to be financed; (vii) the Liens of all documents related to the Existing Loans and (viii) any matters that would not have a Material Adverse Effect.

(xxxviii) “ Person ” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.

(xxxix) “ PLM ” means Peter L. Malkin.

(xl) “ Principals ” means AEM, Scott D. Malkin and Cynthia M. Blumenthal.

(xli) “ Property ” has the meaning ascribed to it in the Recitals.

(xlii) “ Registration Rights Agreement ” means that certain registration rights agreement for the benefit of Participants in the Contributing Entities and the Participants in Owner and the other Option Entities, as applicable, substantially in the form attached to the Consent Solicitations, provided, that if the Closing shall occur at any time following the closing of the Consolidation Transaction, “Registration Rights Agreement” shall mean a separate registration rights agreement for the benefit of Participants in Owner, substantially in the form of such registration rights agreement for the benefit of Participants in the Contributing Entities.

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(xliii) “ Requisite Consent ” has the meaning ascribed to it in Section 4.II(z).

(xliv) “ Securities Act ” means the Securities Act of 1933, as amended.

(xlv) “ Subleases ” shall mean all leases, subleases, licenses, and other occupancy agreements affecting the Property, except the Operating Lease.

(xlvi) “ Subsidiary ” means any corporation, partnership, limited liability company, joint venture, trust or other legal entity which the applicable Person owns (either directly or through or together with another Subsidiary) either (i) a general partner, managing member or other similar interest or (ii)(A) 50% or more of the voting power of the voting capital stock or other equity interests or (B) 50% or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other legal entity. As used herein, “ Subsidiary ” or “ Subsidiaries ” refers to the Subsidiaries of Owner, the Company or the Operating Partnership, as applicable, unless the context otherwise requires.

(xlvii) “ Supervisor ” means Malkin Holdings LLC or any of its Affiliates, in such Person’s capacity as the supervisor of the Owner, the other Option Entities and each of the Contributing Entities, as applicable.

(xlviii) “ Title Insurance Company ” means any reputable title insurance company licensed to conduct business in the State of New York.

(xlix) “ Valuation ” means the establishment of the Consideration pursuant to Section 2(b) hereof.

(l) “ Valuation Date ” means the date as of which the Consideration is determined pursuant to the Valuation or agreement, as applicable, in accordance with Section 2(b) hereof.

2. Option; Consideration .

(a) (i) Owner hereby grants to the Operating Partnership an option (the “ Option ”) to acquire Owner’s interest in the Operating Lease and all hereditaments thereto and all of Owner’s assets (other than Excluded Assets) as of the Valuation Date (collectively, the “ Assets ”) for the Consideration determined in accordance with Section 2(b), subject to closing adjustments as provided herein.

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Operating Partnership pursuant to this Agreement, and the Operating Partnership shall not have any rights or obligations with respect thereto. On or prior to the Closing, Owner must distribute to its Participants all of its cash (excluding from distributable cash (a) any reserves on deposit with lenders for escrow accounts, (b) amounts attributable to prepayments of more than thirty-five (35) days of rent, management fees, other income streams or expense reimbursements, (c) amounts held by Owner as security deposits or amounts otherwise required to be reserved by Owner pursuant to existing agreements with third parties and (d) cash in addition to the foregoing, if any, required to maintain a normalized level (as determined in good faith by the Supervisor, or any successor thereto) of Net Working Capital of Owner (determined based on the most recent quarterly financial statement of Owner)) to its Participants in accordance with the provisions of the applicable organizational documents of Owner (such assets being deemed part of the definition of “ Excluded Assets ”); provided, however , that other than the distributions by Owner and actions taken in connection with the Consolidation Transaction, Owner has not since November 28, 2011 taken, and shall not take, any action other than actions in the ordinary course consistent with past practice to increase current assets or reduce current liabilities, including by increasing long-term liabilities, decreasing long-term assets, changing reserves or otherwise. The Operating Partnership agrees and acknowledges that none of the Excluded Assets, nor any right, title or interest of Owner or any Participant therein, shall be deemed to constitute a part of the assets and liabilities contributed to the Operating Partnership, and that such assets and liabilities will be retained by Owner at the Closing. The Operating Partnership agrees and acknowledges that Owner must transfer or distribute the Excluded Assets to its Participants at any time and from time to time prior to or after the Closing and no such transfer or distribution shall be deemed to violate or breach any provision under this Agreement or any other documents contemplated hereby; provided, that to the extent such distributions occur after Closing and Helmsley is no longer a Participant in Owner, any distributions in respect of Participation Interests in Owner contributed, directly or indirectly, by any Helmsley entity to the Operating Partnership or its designee as contemplated hereby shall be assigned to such Helmsley entity or its designee.

(iii) The Option may be exercised during a term (the “ Option Term ”) which commenced on the date of Conclusion and shall expire on the later of (1) twelve months after the Conclusion has occurred, and (2) five months after completion of the Valuation, which completion shall be not later than six months after the date of the closing of the IPO; provided , however , that the Option Term shall in no event continue past the earlier of (a) December 31, 2014 if the Consolidation Transaction has not closed by such date and (b) the date on which the Consolidation Transaction is abandoned pursuant to a determination of the pricing committee as described in the Consent Solicitation. Exercise of the Option shall be effected by notice (the “ Exercise Notice ”) from the Operating Partnership to Owner provided in accordance with Section 9 hereof, provided such notice is given prior to the expiration of the Option Term, time being of the essence. Any such exercise must be approved by a majority of the Independent Directors.

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(b) (i) The dollar value of the consideration to be paid by the Operating Partnership for the Assets (“ Consideration ”) shall be determined as follows:

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3. Closing .

(iii) All Consideration paid to Owner shall be distributed by Owner to its Participants in accordance with the foregoing as soon as practicable after Closing.

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(b) At the Closing, Owner shall convey marketable title to the Assets (other than Excluded Assets), including the Operating Lease subject only to the Permitted Encumbrances and in connection therewith, deliver:

(i) [Intentionally Omitted];

(ii) an estoppel certificate for the benefit of the Operating Partnership from the Lessor (or otherwise from Owner) to the effect that the Operating Lease is in full force and effect without default, only to the extent received after Owner uses commercially reasonable efforts to obtain such estoppel certificates;

(iii) certificate required under Section 1445 of the Internal Revenue Code of 1986, as amended, certifying that Owner is not a “foreign person;”

(v) (A) an assignment and assumption agreement in recordable form, conveying Owner’s interest in the Operating Lease to the Operating Partnership, together with New York City and New York State real estate transfer tax forms duly executed and acknowledged; and (B) and an assignment, to the extent assignable, of each license and permit respecting the operation of the systems, equipment and apparatus situated at the Property in Owner’s possession without representation or warranty except as expressly contained herein, provided, however, that the Operating Partnership shall assume Owner’s obligations under such licenses and permits, from and after the Closing Date, in each case, in a form to be agreed between the Operating Partnership and Owner;

(vi) an assignment and assumption of the Owner’s right, title and interest in the Subleases to the Operating Partnership, without representation or warranty, and in the in a form to be agreed between the Operating Partnership and Owner, provided however, that the Operating Partnership shall assume Owner’s obligations under the Subleases from and after the Closing Date;

(viii) [Intentionally Omitted.];

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(xi) the Registration Rights Agreement;

(xii) [Intentionally Omitted.]

(xiv) Lessor’s written consent to the conveyance of Owner’s interest under the Operating Lease as required under the Operating Lease.

(c) At the Closing, the Company or the Operating Partnership, as the case may be, shall deliver the following documents to Owner and pay the Consideration as provided in Sections 2(b) and 3(a):

(i) New York City and New York State real estate transfer tax forms duly executed and acknowledged;

(ii) a duly executed and acknowledged counterpart of the assignment and assumption agreement, in a form to be agreed between the Operating Partnership and Owner;

(iii) an assumption by Operating Partnership of the Owner’s obligations under the Subleases, in a form to be agreed between the Operating Partnership and Owner;

(iv) an assumption of Owner’s obligations under the Contracts in a form to be agreed between the Operating Partnership and Owner;

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(v) an assumption of Owner’s obligations under the licenses and permits respecting the operation of systems, equipment and apparatus situated at the Property assigned to Operating Partnership, in a form to be agreed between the Operating Partnership and Owner;

(vi) the OP Agreement and the Amendment (as defined in Section 5(e)) and the Articles of Amendment and Restatement of the Company;

(vii) Evidence of the DTC Registered REIT Stock (as defined in Section 5(e)), which shall bear substantially the legend set forth in the Articles of Amendment and Restatement of the Company or a written statement of information that the Company will furnish a full statement about certain restrictions on transferability to a stockholder as set forth in the Articles of Amendment and Restatement of the Company on request and without charge

(viii) the Registration Rights Agreement;

(ix) evidence of the authority of the Company and the Operating Partnership to consummate this transaction and proof of its legal subsistence as an entity;

(x) an agreement in the form reasonably acceptable to Owner and Operating Partnership pursuant to which Operating Partnership shall agree to perform the covenants hereunder intended to survive the Closing;

(xi). a release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached as Exhibit C hereto; and

(xii) an assignment of Excluded Assets from the Company, the Operating Partnership or a Subsidiary thereof, as applicable, in favor of Owner, to the extent not distributed prior to Closing, to achieve the distributions contemplated under Section 2(a)(ii), if applicable.

(d) On the Closing Date:

(e) [Intentionally Omitted.]

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(i) At the Closing, Owner shall, as appropriate, (i) at the option of Owner (x) deliver one or more official bank checks payable to the order of the Operating Partnership in the amount of the security deposits under the Subleases and the interest earned thereon or (y) credit the Operating Partnership with the amounts thereof and (ii) assign to the Operating Partnership at the Closing all non-cash security deposits under the Subleases. If any of such security deposits shall be in the form of certificates of deposit, letters of credit or other non-cash instruments, Owner shall bear any transfer fees that may be levied in connection with any such assignment. Owner shall use commercially reasonable efforts to deliver at Closing all completed and signed forms, which shall be required by the issuer of such non-cash instruments. For the purposes of this Section 3(i), the amount of any such security deposits (whether in cash or other form) shall be that amount still retained by Owner after applying any such security deposit in accordance with the relevant Lease to the extent permitted thereunder and retention by Owner of any portion of interest earned any security deposit which under law a landlord under any lease may have retained as a service fee or otherwise.

(j) Owner shall pay the State of New York and New York City transfer taxes imposed in connection with the conveyance of the leasehold estate under the Operating Lease pursuant to this Agreement; provided, that Helmsley shall be given reasonable opportunity to

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avail itself of any exemption therefrom including by way of the transfer of the equity interests in the Helmsley entity that holds the Participation Interest in Owner or such Participation Interest directly to the Operating Partnership, all on the basis that any resulting savings shall be for the account of Helmsley, which shall indemnify Owner and its successors from any liability in respect of any underpayment of tax arising in respect of such exemption. To the extent Helmsley elects to transfer such equity interests or its Participation Interest in Owner to the Operating Partnership, the Company, the Operating Partnership and the applicable Helmsley entities shall enter into a contribution agreement, on substantially the same terms as set forth in the Helmsley Contribution Agreement attached as Exhibit D to be entered into in connection with the Consolidation Transaction (including with respect to indemnification) but reflecting the Consideration distributable to Helmsley pursuant to this Agreement.

(k) The Operating Partnership shall pay the following expenses:

(i) premiums and costs for any endorsements to an Owner’s ALTA title insurance policy and any lender’s title insurance policy including any endorsements;

(ii) the cost of obtaining any update to any existing survey or a new survey of the Property;

(iii) the premium for any gap insurance;

(iv) all costs relating to any financing obtained by the Operating Partnership to consummate the transactions contemplated by this Agreement; and

(l) In the event that the Consolidation Transaction does not close, each party hereto shall bear its own attorney’s legal charges with respect to the transactions to be consummated pursuant hereto.

Any or all of the foregoing conditions may be waived by the Owner or the Operating Partnership (on its behalf and on behalf of the Company), as the case may be, in its sole and absolute discretion.

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4. Representations .

(a) Organization; Authority .

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of Amendment and Restatement). In addition, upon such issuance of OP Units, Owner will be admitted as a limited partner of the Operating Partnership and, following distribution by Owner of OP Units to its Participants, such Participants will be admitted as limited partners of the Operating Partnership in accordance with the OP Agreement.

(h) Taxes .

(i) Bankruptcy . No bankruptcy or similar insolvency proceeding has been filed or is currently contemplated with respect to the Company, the Operating Partnership or any of its Subsidiaries.

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All representations and warranties of the Company and the Operating Partnership contained in this Agreement shall expire at Closing.

(o) Section 4.II(o) of the Disclosure Letter sets forth as of November 28, 2011 with respect to Owner (A) each Subsidiary of Owner, if applicable, (B) the ownership interest in each such Subsidiary and (C) if not wholly owned by Owner, the identity and ownership interest of each of the other owners of such Subsidiary. Owner is the operating lessee of the Property pursuant to the Operating Lease. Each Subsidiary of Owner has been duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization, and has all power and authority to own, lease and/or operate its real properties and its other assets, and to carry on its business as presently conducted. Each Subsidiary of Owner, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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(u) Property Interest .

(i) Owner is the holder of a valid operating leasehold interest in the Property pursuant to the Operating Lease, free and clear of all Liens, except for Permitted Encumbrances.

(ii) With respect to the Operating Lease and each lease under which Owner was a landlord or sublandlord at November 28, 2011 that is material to the Property, (A) such lease is valid and binding against Owner, and to Owner’s Knowledge, the other parties thereto, and in full force and effect, (B) neither Owner nor any Subsidiary party thereto, and to the Owner’s Knowledge, no other party thereto is in material violation of, or material default under, such lease, (C) Owner has not granted an option or a right of first refusal or offer, (D) to Owner’s Knowledge, no event has occurred and is pending, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or material default by Owner or any of its Subsidiaries or the applicable lessor under the relevant lease and (E) complete (in all material respects) copies of all such leases have been made available to the Operating Partnership.

(w) Insurance . Owner has in place the public liability, casualty and other insurance coverage with respect to the Property by such Owner as Owner reasonably deems necessary, including in all cases, such coverage as is required under the terms of any Existing Loan or the Operating Lease. To Owner’s Knowledge, each such insurance policy is in full force and effect and all premiums currently due and payable thereunder have been fully paid. To Owner’s Knowledge, Owner has not received from any insurance company any written notices of cancellation or intent to cancel any insurance which remain outstanding.

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not in compliance with applicable environmental laws with respect to the Property (which non-compliance, if any, has not been remedied or resolved or is not being remedied or resolved), (iii) Owner or its Subsidiaries, as applicable, has all permits, authorizations and approvals required under any applicable environmental laws and is in compliance with their principal terms and conditions and (iv) there has not been a release of a hazardous substance on the Property that would require investigation or remediation under applicable environmental laws. The representations and warranties contained in this subsection constitute the sole and exclusive representations and warranties made by Owner concerning environmental matters.

(y) Eminent Domain . There is no existing or, to Owner’s Knowledge, threatened in writing condemnation, eminent domain or similar proceeding which would affect the Property.

(aa) No Violation . Assuming the accuracy of the representations and warranties of the Company and the Operating Partnership made hereunder, none of the execution, delivery or performance by Owner of this Agreement or any other agreement or document contemplated by this Agreement to which Owner is a party, or any agreement or transaction contemplated hereby or thereby or the consummation of the Consolidation Transaction contemplated hereby between the parties to this Agreement does or will, with or without the giving of notice, lapse of time, or both, violate, conflict with, result in a breach of, or constitute a default under or give to others any right of termination, acceleration, cancellation or other right under, (i) the organizational documents of Owner, (ii) any material agreement, document or instrument to which Owner or its assets or properties are bound or (iii) any material term or provision of any judgment, order, writ, injunction, or decree binding on Owner, except for, in the case of clause (ii) or (iii), any such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(bb) Taxes . Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:

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(ii) There are no liens for taxes (other than statutory liens for taxes not yet due and payable) upon any of the assets of Owner.

(dd) Contracts and Commitments . Except as set forth in Section 4.II(dd) of the Disclosure Letter, neither Owner nor any of its Subsidiaries is a party to:

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(ff) Bankruptcy . No bankruptcy or similar insolvency proceeding has been filed or is currently contemplated with respect to Owner or any of its Subsidiaries.

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(gg) Employees . Owner has no employees.

(hh) Investment .

(ii) Owner is knowledgeable, sophisticated and experienced in business and financial matters and fully understands the limitations on transfer imposed by the federal securities laws. Owner is able to bear the economic risk of holding the Common Stock and/or OP Units for an indefinite period and is able to afford the complete loss of its investment in the Common Stock and/or OP Units. Owner has received and reviewed all information and documents about or pertaining to the Operating Partnership and the business and prospects of the Operating Partnership and the issuance of the Common Stock and/or OP Units as Owner deems necessary or desirable, and has been given the opportunity to obtain any additional information or documents and to ask questions and receive answers about such information and documents, the Company, the Operating Partnership and the business and prospects of the Company and the Operating Partnership which Owner deems necessary or desirable to evaluate the merits and risks related to its investment in the Common Stock and/or OP Units; and Owner understands and has taken cognizance of all risk factors related to the purchase of the Common Stock and/or OP Units. Owner is relying upon its own independent analysis and assessment (including with respect to taxes), and the advice of Owner’s advisors (including tax advisors), and not upon that of the Company or the Operating Partnership or any of the Company’s or the Operating Partnership’s Affiliates, for purposes of evaluating, entering into, and consummating the transactions contemplated hereby.

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5. Payment of Consideration .

(e) The parties acknowledge that the transfer to Owner (for distribution to its Participants) pursuant to this Agreement of (i) OP Units shall be evidenced by an amendment to the Operating Partnership’s Partnership Agreement admitting Participants receiving OP Units pursuant to the terms hereof as limited partners (the “ Amendment ”) and (ii) Common Stock shall be evidenced through the electronic registration of such Common Stock with the Depository Trust Company, a New York corporation (“ DTC Registered REIT Stock ”) (except that the Class B Common Stock may be evidenced in a different form to be determined by the Company) in such names as Owner shall direct, based on instructions from Participants receiving Common Stock. Each Participant in Owner receiving OP Units shall be instructed to execute, in connection with its consent to the transactions contemplated by this Agreement, an agreement to become a party to and be bound by such Partnership Agreement. Owner may withhold distribution of any OP Units to any investor until such investor executes such an agreement.

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6. Risk of Loss .

(a) The risk of loss relating to Owner’s Property Interest and the underlying Property prior to the Closing shall be borne by Owner. If, prior to the Closing, (a) the Property is materially or totally destroyed or damaged by fire or other casualty or (b) the Property is materially or totally taken by eminent domain or through condemnation proceedings, then the Operating Partnership may, at its option (such election to be made as soon as reasonably practicable following such occurrence and in any event prior to the Closing), determine not to acquire the leasehold estate under the Operating Lease. Owner shall not have any obligation to repair or replace any such damage, destruction or taken property. Unless the Operating Partnership elects not to acquire the leasehold estate under the Operating Lease, at the Closing, Owner shall pay or cause to be paid to the Operating Partnership any sums collected (directly or indirectly) by Owner, if any, under any policies of insurance or award proceeds relating to such casualty or condemnation, if any, and otherwise assign to the Operating Partnership all rights (directly or indirectly) of Owner to collect such sums as may then be uncollected except to the extent required for collection costs or repairs by Owner prior to the Closing Date, and provided that Owner shall retain any insurance proceeds attributable to lost rents or other items applicable to any period prior to the Determination Date, and all rights thereto. As used in this Section 6, “materially” destroyed, damaged or taken refers to any casualty loss or damage or any loss due to condemnation, in either case, to the Property or any portion thereof if (a) the cost of repairing or restoring the premises in question to substantially the same condition which existed prior to the event of damage would be, in the opinion of an architect or other qualified expert selected by Owner and reasonably approved by the Operating Partnership, or the amount of the proposed condemnation award is, equal to or greater than ten percent (10%) of the Consideration for the Property, (b) such loss or damage would entitle tenants occupying more than ten percent (10%) of the total rentable square footage at the Property, in the aggregate, to terminate their Subleases or (c) such loss or damage otherwise materially impairs the current use or square footage of such Property (including parking, if material to such use) or access thereto. This Section 6 is an express agreement to the contrary under Section 5-1311 of the New York General Obligation Law.

7. Management Services .

The parties intend that this Section 7 shall survive any termination of this Agreement.

(a) Following the date of the closing of the IPO and during any remaining Option Term, the Company shall perform on behalf of Owner the same asset management services as now provided by the Supervisor in consideration of (i) a fee equal to $92,458 per annum with respect to asset management services which constituted basic supervisory services, which fee shall be increased, on the first day of January of each year, in an amount based on the annual cumulative increase in C.P.I during such year, commencing in January 2014 and (ii) a payment, on a monthly basis, of an amount equal to the allocable cost of the time spent by the Company’s staff in performing such services with respect to asset management services which constituted special supervisory services. The asset management fee, with respect to asset management services which constituted basic supervisory services, shall be payable in equal

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monthly installments on the first day of each month. The Company shall include with each invoice for payment with respect to asset management services which constituted special supervisory services such written detail as Owner may reasonably request to support the determination of Owner’s share of such costs and. payment shall be made on a monthly basis within thirty (30) days after presentation of such invoice.

(b) Following the date of the closing of the IPO and during any remaining Option Term, the Company may, subject to Section 7(c) below, instruct Owner to terminate that certain management agreement between Owner and Cushman & Wakefield, Inc. attached as Schedule 7(b)(i) hereto or that certain leasing agreement between Owner and Cushman & Wakefield, Inc. attached as Schedule 7(b)(ii) hereto, in which case the Company, or a Subsidiary of the Company, shall perform on behalf of Owner the property management, leasing, construction and other services on the fee formulas currently in effect as described in the terminated agreement, as applicable (or on any other market terms approved by a majority of the Independent Directors and by Helmsley).

8. Assignment .

9. Notices .

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To Owner :

112 West 34th Street Company L.L.C.

c/o Malkin Holdings LLC

One Grand Central Place

60 East 42nd Street

New York, NY 10165

Facsimile: (212) 986-8795

Attn: Anthony E. Malkin

with a copy to:

Proskauer Rose LLP

1585 Broadway, Room 2256

New York, NY 10036

Facsimile: (212) 969-2900

Attn: Arnold S. Jacobs

To the Company or the Operating Partnership :

c/o Malkin Holdings LLC

One Grand Central Place

60 East 42nd Street

New York, NY 10165

Attn: Anthony E. Malkin

with a copy to:

Clifford Chance US LLP

31 West 52nd Street

New York, NY 10019

Facsimile: (212) 878-8375

Attn: Larry P. Medvinsky

To Helmsley :

c/o Helmsley Enterprises, Inc.

230 Park Avenue—Suite 659

New York, NY 10169

Facsimile: (212) 867-7570

Attn: General Counsel

Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square, 38 ^th Floor

New York, NY 10036

Facsimile: (917) 777-2600

Attn: Benjamin F. Needell

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10. Descriptive Headings .

The descriptive headings in this Agreement are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

11. No Recording .

Neither this Agreement nor any memorandum or short form hereof may be recorded.

12. Entire Agreement .

13. Amendment; Waiver .

14. Severability .

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15. Governing Law .

16. Counterparts .

17. Jurisdiction .

18. Dispute Resolution .

The parties intend that this Section 18 will be valid, binding, enforceable, exclusive and irrevocable and that it shall survive any termination of this Agreement.

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accordance with the Laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, as in effect on November 28, 2011. The parties hereto shall appoint one arbitrator within fifteen (15) days of a demand for arbitration. If an arbitrator is not appointed within such 15-day period, the arbitrator shall be appointed by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, as in effect on November 28, 2011. The arbitrator shall designate the place and time of the hearing. The hearing shall be scheduled to begin as soon as practicable and no later than fifteen (15) days after the appointment of the arbitrator (unless such period is extended by the arbitrator for good cause shown) and shall be conducted as expeditiously as possible, in any event not to exceed forty-five (45) days. The award, which shall set forth the arbitrator’s findings of fact and conclusions of law, shall be filed with JAMS and mailed to the parties no later than thirty (30) days after the close of the arbitration hearing. The arbitration award shall be final and binding on the parties and not subject to collateral attack. Judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.

19. Rules of Construction .

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hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time, amended, qualified or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns.

20. Time of the Essence .

Time is of the essence with respect to all obligations under this Agreement.

21. No Personal Liability Conferred .

22. Changes to Form Agreements .

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completed and the terms of the Consolidation Transaction as described in the Consent Solicitations, including the Values, may be significantly different than described in such documents existing as of November 28, 2011 and (e) notwithstanding the foregoing differences, this Agreement will be binding.

23. Further Assurances .

24. Reliance .

25. Survival .

26. Equitable Remedies; Limitation on Damages .

27. Special Provisions .

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IN WITNESS WHEREOF, Owner, the Company, the Operating Partnership, and Helmsley have executed this Agreement as of the day and year first above written.


EMPIRE STATE REALTY TRUST, INC.

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel

EMPIRE STATE REALTY OP, L.P.

By: Empire State Realty Trust, Inc., its general partner

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel

112 WEST 34TH STREET COMPANY L.L.C. By: Malkin Holdings LLC, Supervisor

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel

THE ESTATE OF LEONA M. HELMSLEY

By:		/s/ Sandor Frankel
Name:		Sandor Frankel
Title:		Executor

By:		/s/ John Codey
Name:		John Codey
Title:		Executor

Signature page to Amended and Restated Option Agreement for 112 West 34 ^th Street Company L.L.C.

AGREED SOLELY AS TO SECTION 27 (b):

/s/ Peter L. Malkin

Peter L. Malkin

/s/ Anthony E. Malkin

Anthony E. Malkin

Signature page to Amended and Restated Option Agreement for 112 West 34 ^th Street Company L.L.C.

SCHEDULE 2(b)(i)(A)

CALCULATION OF OWNER VALUE

Number of OP Units and/or shares of Common Stock = V/IPO Price

V = AP x TIV

where:

V = Value

AP = Allocable Percentage

TIV = Total Inside Value

“ Total Inside Value ” shall mean the sum of Total Equity minus Public Equity.

Sch. 2(b)(i)(A)-1

Exhibit 10.19

Execution Version

AMENDED AND RESTATED OPTION AGREEMENT

THIS AMENDED AND RESTATED OPTION AGREEMENT (this “ Agreement ”) is made as of September 16, 2013, to amend and restate the Option Agreement dated November 28, 2011 (the “ Original Agreement ”) between 1400 Broadway Associates L.L.C., a New York limited liability company (“ Owner ”), having an office c/o Malkin Holdings LLC, One Grand Central Place, 60 East 42 ^nd Street, New York, New York 10165; Empire State Realty OP, L.P., a Delaware limited partnership (the “ Operating Partnership ”); Empire State Realty Trust, Inc., a Maryland corporation (the “ Company ”), which is the general partner of the Operating Partnership, having an office c/o Malkin Holdings LLC, One Grand Central Place, 60 East 42 ^nd Street, New York, New York 10165, the Estate of Leona M. Helmsley (including, where the context so requires, any affiliated entities, “ Helmsley ”), and, solely with respect to Section 27(b), Peter L. Malkin and Anthony E. Malkin.

RECITALS

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Entities, will each be distributed to the Participants therein. The holders of a Participation Interest in a Contributing Entity or an Option Entity, as applicable, are referred to individually as a “ Participant ” and collectively as the “ Participants .”

C. WHEREAS, Owner is the ground lessee of the premises known as 1400 Broadway, New York, New York (the “ Property ”) pursuant to that certain Indenture of Lease dated December 27, 1962 between The Prudential Insurance Company of America, as lessor (the “ Lessor ”), and 1400 Broadway Associates L.L.C., as lessee (the “ Ground Lease ”), which was recorded in the office of the Register of the City of New York on December 28, 1962 in Liber 5214 at page 61.

D. WHEREAS, the Operating Partnership agreed to hold an option to acquire the Assets as defined herein, and Owner agreed to grant such option, on the terms set forth in the Original Agreement.

1. Definitions .

(a) The following definitions shall apply:

(ii) “ AEM ” means Anthony E. Malkin.

(iv) “ Appraiser ” means any independent third party appraiser with experience in valuation matters selected in accordance with Section 2(b) and Exhibit A hereto.

(v) “ Assets ” has the meaning ascribed to it in Section 2(a).

(vi) “ Business Day ” means any day that is not a Saturday, Sunday or legal holiday in the State of New York.

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(vii) “ Case ” means that certain case entitled 112-1400 Trade Properties LLC v. 1400 Broadway Associates L.L.C., commenced in the Supreme Court of the State of New York, County of New York, Index No 110428/08.

(viii) “ Claims ” means any claims, liabilities, rights, actions, causes of action, allegations, assertions, suits, complaints, demands or requirements.

(ix) “ Closing ” means the consummation of the acquisition of the Assets pursuant to the Option.

(x) “ Closing Date ” has the meaning ascribed to it in Section 3(a).

(xii) “ Consideration ” has the meaning ascribed to it in Section 2(b) hereof.

(xiv) “ ERISA ” shall mean The Employee Retirement Income Security Act of 1974, as amended.

(xv) “ Excluded Assets ” has the meaning ascribed to it in Section 2(a)(ii).

(xvi) “ Existing Loans ” has the meaning ascribed to it in Section 4(ee).

(xvii) “ Ground Lease ” has the meaning ascribed to it in the Recitals.

(xviii) “ Helmsley ” has the meaning ascribed to it in the introductory paragraph hereof.

(xix) “ Independent Director ” means a director of the Company who is an independent director as defined under the rules of the New York Stock Exchange or other national securities exchange on which the Class A Common Stock is listed.

(xx) “ IPO ” has the meaning ascribed to it in the Recitals.

(xxi) “ IPO Price ” means the price per share of Class A Common Stock in the IPO.

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(xxii) “ Knowledge ” means, with respect to Owner, any Subsidiary of Owner, the Company or the Operating Partnership, the current actual knowledge of any Principal or Thomas N. Keltner, Jr. without any duty of investigation or inquiry.

(xxiii) “ Lessor ” has the meaning ascribed to it in the Recitals.

(xxiv) “ Lien ” means all pledges, claims, liens, charges, restrictions, controls, easements, rights of way, exceptions, reservations, leases, licenses, grants, covenants and conditions, encumbrances and security interests of any kind or nature whatsoever.

(xxv) “ Management Companies ” shall mean Malkin Holdings LLC, Malkin Properties, L.L.C., Malkin Properties of New York, L.L.C., Malkin Properties of Connecticut, Inc. and Malkin Construction Corp.

(xxvi) “ Material Adverse Effect ” means, as the case may be, a material adverse effect on (i) the assets, business, financial condition or results of operations of Owner taken as a whole (or on the applicable interest in the Property) (as to the representations and warranties relating to Owner) or (ii) the Company, the Operating Partnership and their Subsidiaries and their properties taken as a whole, after giving effect to the Consolidation Transaction and the IPO (as to the representations and warranties relating to the Company and the Operating Partnership), as applicable.

(xxvii) “ Net Working Capital ” means current assets of Owner (excluding cash and cash equivalents, except to the extent required to maintain the normalized level of working capital for Owner) less current liabilities of Owner (excluding the outstanding principal balance under any Existing Loans).

(xxviii) “ Non-Accredited Investor ” means a Participant who is not an Accredited Investor.

(xxix) “ OP Agreement ” means the agreement of limited partnership of the Operating Partnership, as amended and restated and in effect immediately prior to the closing of the IPO.

(xxx) “ Operating Partnership ” has the meaning ascribed to it in the introductory paragraph hereof.

(xxxi) “ Option ” has the meaning ascribed to it in Section 2(a)(i) hereof.

(xxxii) “ Option Term ” has the meaning ascribed to it in Section 2(a)(iii) hereof.

(xxxiii) “ OP Units ” has the meaning ascribed to it in the Recitals.

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(xxxiv) “ Owner ” has the meaning ascribed to it in the introductory paragraph hereof.

(xxxv) “ Owner’s Appraiser ” has the meaning ascribed to it in Section 2(b)(ii) hereof.

(xxxviii) “ Person ” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.

(xxxix) “ PLM ” means Peter L. Malkin.

(xl) “ Principals ” means AEM, Scott D. Malkin and Cynthia M. Blumenthal.

(xli) “ Property ” has the meaning ascribed to it in the Recitals.

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(xliii) “ Requisite Consent ” has the meaning ascribed to it in Section 4.II(z).

(xliv) “ Securities Act ” means the Securities Act of 1933, as amended.

(xlv) “ Subleases ” shall mean all leases, subleases, licenses, and other occupancy agreements affecting the Property, except the Ground Lease.

(xlviii) “ Title Insurance Company ” means any reputable title insurance company licensed to conduct business in the State of New York.

(xlix) “ Valuation ” means the establishment of the Consideration pursuant to Section 2(b) hereof.

(l) “ Valuation Date ” means the date as of which the Consideration is determined pursuant to the Valuation or agreement, as applicable, in accordance with Section 2(b) hereof.

2. Option; Consideration .

(a) (i) Owner hereby grants to the Operating Partnership an option (the “ Option ”) to acquire Owner’s interest in the leasehold estate created by the Ground Lease and all hereditaments thereto and all of Owner’s assets (other than Excluded Assets) as of the Valuation Date (collectively, the “ Assets ”) for the Consideration determined in accordance with Section 2(b), subject to closing adjustments as provided herein.

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with lenders for escrow accounts, (b) amounts attributable to prepayments of more than thirty-five (35) days of rent, management fees, other income streams or expense reimbursements, (c) amounts held by Owner as security deposits or amounts otherwise required to be reserved by Owner pursuant to existing agreements with third parties and (d) cash in addition to the foregoing, if any, required to maintain a normalized level (as determined in good faith by the Supervisor, or any successor thereto) of Net Working Capital of Owner (determined based on the most recent quarterly financial statement of Owner)) to its Participants in accordance with the provisions of the applicable organizational documents of Owner (such assets being deemed part of the definition of “ Excluded Assets ”); provided, however , that other than the distributions by Owner and actions taken in connection with the Consolidation Transaction, Owner has not since November 28, 2011 taken, and shall not take, any action other than actions in the ordinary course consistent with past practice to increase current assets or reduce current liabilities, including by increasing long-term liabilities, decreasing long-term assets, changing reserves or otherwise. The Operating Partnership agrees and acknowledges that none of the Excluded Assets, nor any right, title or interest of Owner or any Participant therein, shall be deemed to constitute a part of the assets and liabilities contributed to the Operating Partnership, and that such assets and liabilities will be retained by Owner at the Closing. The Operating Partnership agrees and acknowledges that Owner must transfer or distribute the Excluded Assets to its Participants at any time and from time to time prior to or after the Closing and no such transfer or distribution shall be deemed to violate or breach any provision under this Agreement or any other documents contemplated hereby; provided, that to the extent such distributions occur after Closing and Helmsley is no longer a Participant in Owner, any distributions in respect of Participation Interests in Owner contributed, directly or indirectly, by any Helmsley entity to the Operating Partnership or its designee as contemplated hereby shall be assigned to such Helmsley entity or its designee.

(iii) The Option may be exercised during a term (the “ Option Term ”) which commenced on the date of Conclusion and shall expire on the later of (1) twelve months after the Conclusion has occurred, and (2) five months after completion of the Valuation, which completion shall be not later than six months after the date of the closing of the IPO; provided , however , that the Option Term shall in no event continue past the earlier of (a) December 31, 2014 if the Consolidation Transaction has not closed by such date and (b) the date on which the Consolidation Transaction is abandoned pursuant to a determination of the pricing committee as described in the Consent Solicitation. Exercise of the Option shall be effected by notice (the “ Exercise Notice ”) from the Operating Partnership to Owner provided in accordance with Section 9 hereof, provided such notice is given prior to the expiration of the Option Term, time being of the essence. Any such exercise must be approved by a majority of the Independent Directors.

(b) (i) The dollar value of the consideration to be paid by the Operating Partnership for the Assets (“ Consideration ”) shall be determined as follows:

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however, that if the Option is exercised prior to the IPO, then (in lieu of the Valuation) the Consideration shall be Owner’s “Value” calculated in the manner set forth on Schedule 2(b)(i)(A) hereto in accordance with the appraisal of Duff & Phelps LLC as described in the Consent Solicitations. The Option hereunder shall remain in force, regardless of how high or low a Consideration is thereby determined. Contemporaneous with the commencement of the Valuation, Owner shall give the Operating Partnership a notice showing the names and allocable percentage interest in Owner held by each of its Non-Accredited Investors (the “ Non-AI List ”) and its Accredited Investors (the “ AI List ”). The AI List shall state the election made by each Participant of Owner that is an Accredited Investor in the applicable Consent Solicitation for the Consideration to be paid in OP Units or Common Stock; provided, however, that the form of Consideration payable to Owner and distributed to Participants in Owner shall be as provided in Section 3(a).

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3. Closing .

(iii) All Consideration paid to Owner shall be distributed by Owner to its Participants in accordance with the foregoing as soon as practicable after Closing.

(b) At the Closing, Owner shall convey marketable title to the Assets (other than Excluded Assets), including the Ground Lease subject only to the Permitted Encumbrances and in connection therewith, deliver:

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(i) a Title Policy issued by a Title Insurance Company to the Operating Partnership or a Subsidiary thereof, as ground lessor of the Property, effective as of the Closing, with respect to the Property containing exceptions only for Permitted Encumbrances;

(ii) an estoppel certificate for the benefit of the Operating Partnership from the Lessor (or otherwise from Owner) to the effect that the Ground Lease is in full force and effect without default, only to the extent received after Owner uses commercially reasonable efforts to obtain such estoppel certificates;

(iii) certificate required under Section 1445 of the Internal Revenue Code of 1986, as amended, certifying that Owner is not a “foreign person;”

(v) (A) an assignment and assumption agreement in recordable form, conveying Owner’s estate in the Ground Lease to the Operating Partnership, together with New York City and New York State real estate transfer tax forms duly executed and acknowledged; and (B) and an assignment, to the extent assignable, of each license and permit respecting the operation of the systems, equipment and apparatus situated at the Property in Owner’s possession without representation or warranty except as expressly contained herein, provided, however, that the Operating Partnership shall assume Owner’s obligations under such licenses and permits, from and after the Closing Date, in each case, in a form to be agreed between the Operating Partnership and Owner;

(viii) [Intentionally Omitted.];

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(xi) the Registration Rights Agreement;

(xii) [Intentionally Omitted.]

(xiv) Lessor’s written consent to the conveyance of Owner’s estate under the Ground Lease as required under the Ground Lease.

(c) At the Closing, the Company or the Operating Partnership, as the case may be, shall deliver the following documents to Owner and pay the Consideration as provided in Sections 2(b) and 3(a):

(i) New York City and New York State real estate transfer tax forms duly executed and acknowledged;

(ii) a duly executed and acknowledged counterpart of the assignment and assumption agreement, in a form to be agreed between the Operating Partnership and Owner;

(iii) an assumption by Operating Partnership of the Owner’s obligations under the Subleases, in a form to be agreed between the Operating Partnership and Owner;

(iv) an assumption of Owner’s obligations under the Contracts in a form to be agreed between the Operating Partnership and Owner;

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(vi) the OP Agreement and the Amendment (as defined in Section 5(e)) and the Articles of Amendment and Restatement of the Company;

(viii) the Registration Rights Agreement;

(ix) evidence of the authority of the Company and the Operating Partnership to consummate this transaction and proof of its legal subsistence as an entity;

(xi). a release executed by Operating Partnership and the Company in favor of the employees and Affiliates of the Supervisor in the form attached as Exhibit C hereto; and

(d) On the Closing Date:

(e) [Intentionally Omitted.]

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(h) If there shall be pending as of the Closing Date real estate tax certiorari or other proceedings or protests to reduce the real estate taxes, assessments, valuations or other impositions on the Property or any portion thereof, the Operating Partnership shall assume at Owner’s election and Operating Partnership’s cost the prosecution of such proceedings for the benefit of Owner and the Operating Partnership, as attributable to the respective ownership period of each. Owner may prosecute such proceedings or protests using counsel, if any, retained by Owner in connection with such proceedings or protests until a final determination has been rendered. If such determination shall result in a refund or credit, then the net amount of such refund or credit shall be adjusted in accord with the provisions of this Section 3(h);

(j) Owner shall pay the State of New York and New York City transfer taxes imposed in connection with the conveyance of the leasehold estate under the Ground Lease pursuant to this Agreement; provided, that Helmsley shall be given reasonable opportunity to avail itself of any exemption therefrom including by way of the transfer of the equity interests in

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the Helmsley entity that holds the Participation Interest in Owner or such Participation Interest directly to the Operating Partnership, all on the basis that any resulting savings shall be for the account of Helmsley, which shall indemnify Owner and its successors from any liability in respect of any underpayment of tax arising in respect of such exemption. To the extent Helmsley elects to transfer such equity interests or its Participation Interest in Owner to the Operating Partnership, the Company, the Operating Partnership and the applicable Helmsley entities shall enter into a contribution agreement, on substantially the same terms as set forth in the Helmsley Contribution Agreement attached as Exhibit D to be entered into in connection with the Consolidation Transaction (including with respect to indemnification) but reflecting the Consideration distributable to Helmsley pursuant to this Agreement.

(k) The Operating Partnership shall pay the following expenses:

(i) premiums and costs for any endorsements to an Owner’s ALTA title insurance policy and any lender’s title insurance policy including any endorsements;

(ii) the cost of obtaining any update to any existing survey or a new survey of the Property;

(iii) the premium for any gap insurance;

(iv) all costs relating to any financing obtained by the Operating Partnership to consummate the transactions contemplated by this Agreement; and

(l) In the event that the Consolidation Transaction does not close, each party hereto shall bear its own attorney’s legal charges with respect to the transactions to be consummated pursuant hereto.

Any or all of the foregoing conditions may be waived by the Owner or the Operating Partnership (on its behalf and on behalf of the Company), as the case may be, in its sole and absolute discretion.

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4. Representations .

(a) Organization; Authority .

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individually or together with all such other actions, reasonably be expected to have a Material Adverse Effect. As of November 28, 2011, there was no action, suit or proceeding pending or, to the Company’s or the Operating Partnership’s Knowledge, threatened against the Company, the Operating Partnership or any of its Subsidiaries which challenges or impairs the ability of the Company, the Operating Partnership or any of its Subsidiaries to execute, deliver or perform its obligations under any of the Closing Documents or to consummate the transactions contemplated hereby and thereby.

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(h) Taxes .

(i) Bankruptcy . No bankruptcy or similar insolvency proceeding has been filed or is currently contemplated with respect to the Company, the Operating Partnership or any of its Subsidiaries.

All representations and warranties of the Company and the Operating Partnership contained in this Agreement shall expire at Closing.

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(o) Section 4.II(o) of the Disclosure Letter sets forth as of November 28, 2011 with respect to Owner (A) each Subsidiary of Owner, if applicable, (B) the ownership interest in each such Subsidiary and (C) if not wholly owned by Owner, the identity and ownership interest of each of the other owners of such Subsidiary. Owner is the ground lessee of the Property pursuant to the Ground Lease. Each Subsidiary of Owner has been duly organized and is validly existing and in good standing under the Laws of its jurisdiction of organization, and has all power and authority to own, lease and/or operate its real properties and its other assets, and to carry on its business as presently conducted. Each Subsidiary of Owner, to the extent required under applicable Laws, is qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the character of its Property make such qualification necessary, other than such failures to be so qualified as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

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All of the issued and outstanding equity interests of Owner are validly issued and, to Owner’s Knowledge, are not subject to preemptive rights or appraisal, dissenters or similar rights. There are no outstanding rights to purchase, subscriptions, warrants, options or any other security convertible into or exchangeable for equity interests in Owner or any Subsidiary.

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(u) Property Interest .

(i) Owner is the holder of a valid ground leasehold estate in the Property pursuant to the Ground Lease, free and clear of all Liens, except for Permitted Encumbrances.

(ii) With respect to the Ground Lease and each lease under which Owner was a landlord or sublandlord at November 28, 2011 that is material to the Property, (A) such lease is valid and binding against Owner, and to Owner’s Knowledge, the other parties thereto, and in full force and effect, (B) neither Owner nor any Subsidiary party thereto, and to the Owner’s Knowledge, no other party thereto is in material violation of, or material default under, such lease, (C) Owner has not granted an option or a right of first refusal or offer, (D) to Owner’s Knowledge, no event has occurred and is pending, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or material default by Owner or any of its Subsidiaries or the applicable lessor under the relevant lease and (E) complete (in all material respects) copies of all such leases have been made available to the Operating Partnership.

(w) Insurance . Owner has in place the public liability, casualty and other insurance coverage with respect to the Property by such Owner as Owner reasonably deems necessary, including in all cases, such coverage as is required under the terms of any Existing Loan or the Ground Lease. To Owner’s Knowledge, each such insurance policy is in full force and effect and all premiums currently due and payable thereunder have been fully paid. To Owner’s Knowledge, Owner has not received from any insurance company any written notices of cancellation or intent to cancel any insurance which remain outstanding.

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required under any applicable environmental laws and is in compliance with their principal terms and conditions and (iv) there has not been a release of a hazardous substance on the Property that would require investigation or remediation under applicable environmental laws. The representations and warranties contained in this subsection constitute the sole and exclusive representations and warranties made by Owner concerning environmental matters.

(y) Eminent Domain . There is no existing or, to Owner’s Knowledge, threatened in writing condemnation, eminent domain or similar proceeding which would affect the Property.

(bb) Taxes . Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:

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(ii) There are no liens for taxes (other than statutory liens for taxes not yet due and payable) upon any of the assets of Owner.

(dd) Contracts and Commitments . Except as set forth in Section 4.II(dd) of the Disclosure Letter, neither Owner nor any of its Subsidiaries is a party to:

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(ff) Bankruptcy . No bankruptcy or similar insolvency proceeding has been filed or is currently contemplated with respect to Owner or any of its Subsidiaries.

(gg) Employees . Owner has no employees.

(hh) Investment .

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obligation or intention to register any OP Units, except to the extent set forth in the Registration Rights Agreement. Accordingly, Owner and the Participants may have to bear indefinitely, the economic risks of an investment in such OP Units, and a notation shall be made in the appropriate records of the Operating Partnership indicating that the OP Units (and any Common Stock for which OP Units may, in certain circumstances, be exchanged or redeemed) and are subject to restrictions on transfer.

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5. Payment of Consideration .

6. Risk of Loss .

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repair or replace any such damage, destruction or taken property. Unless the Operating Partnership elects not to acquire the leasehold estate under the Ground Lease, at the Closing, Owner shall pay or cause to be paid to the Operating Partnership any sums collected (directly or indirectly) by Owner, if any, under any policies of insurance or award proceeds relating to such casualty or condemnation, if any, and otherwise assign to the Operating Partnership all rights (directly or indirectly) of Owner to collect such sums as may then be uncollected except to the extent required for collection costs or repairs by Owner prior to the Closing Date, and provided that Owner shall retain any insurance proceeds attributable to lost rents or other items applicable to any period prior to the Determination Date, and all rights thereto. As used in this Section 6, “materially” destroyed, damaged or taken refers to any casualty loss or damage or any loss due to condemnation, in either case, to the Property or any portion thereof if (a) the cost of repairing or restoring the premises in question to substantially the same condition which existed prior to the event of damage would be, in the opinion of an architect or other qualified expert selected by Owner and reasonably approved by the Operating Partnership, or the amount of the proposed condemnation award is, equal to or greater than ten percent (10%) of the Consideration for the Property, (b) such loss or damage would entitle tenants occupying more than ten percent (10%) of the total rentable square footage at the Property, in the aggregate, to terminate their Subleases or (c) such loss or damage otherwise materially impairs the current use or square footage of such Property (including parking, if material to such use) or access thereto. This Section 6 is an express agreement to the contrary under Section 5-1311 of the New York General Obligation Law.

7. Management Services .

The parties intend that this Section 7 shall survive any termination of this Agreement.

(a) Following the date of the closing of the IPO and during any remaining Option Term, the Company shall perform on behalf of Owner the same asset management services as now provided by the Supervisor in consideration of (i) a monthly fee equal to one percent (1%) of gross collections at the Property, with respect to asset management services which constituted basic supervisory services and (ii) a payment, on a monthly basis, of an amount equal to the allocable cost of the time spent by the Company’s staff in performing such services with respect to asset management services which constituted special supervisory services. The asset management fee, with respect to asset management services which constituted basic supervisory services, shall be payable in equal monthly installments on the first day of each month. The Company shall include with each invoice for payment with respect to asset management services which constituted special supervisory services such written detail as Owner may reasonably request to support the determination of Owner’s share of such costs and payment shall be made on a monthly basis within thirty (30) days after presentation of such invoice.

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Frank attached as Schedule 7(b)(ii) hereto, in which case the Company, or a Subsidiary of the Company, shall perform on behalf of Owner the property management, leasing, construction and other services on the fee formulas currently in effect as described in the terminated agreement, as applicable (or on any other market terms approved by a majority of the Independent Directors and by Helmsley).

8. Assignment .

9. Notices .

To Owner:

1400 Broadway Associates L.L.C.

c/o Malkin Holdings LLC

One Grand Central Place

60 East 42nd Street

New York, NY 10165

Facsimile: (212) 986-8795

Attn: Anthony E. Malkin

with a copy to:

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Proskauer Rose LLP

1585 Broadway, Room 2256

New York, NY 10036

Facsimile: (212) 969-2900

Attn: Arnold S. Jacobs

To the Company or the Operating Partnership :

c/o Malkin Holdings LLC

One Grand Central Place

60 East 42nd Street

New York, NY 10165

Attn: Anthony E. Malkin

with a copy to:

Clifford Chance US LLP

31 West 52nd Street

New York, NY 10019

Facsimile: (212) 878-8375

Attn: Larry P. Medvinsky

To Helmsley :

c/o Helmsley Enterprises, Inc.

230 Park Avenue—Suite 659

New York, NY 10169

Facsimile: (212) 867-7570

Attn: General Counsel

Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square, 38 ^th Floor

New York, NY 10036

Facsimile: (917) 777-2600

Attn: Benjamin F. Needell

10. Descriptive Headings .

The descriptive headings in this Agreement are inserted for convenience only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

11. No Recording .

Neither this Agreement nor any memorandum or short form hereof may be recorded.

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12. Entire Agreement .

13. Amendment; Waiver .

Any amendment hereto shall be in writing and signed by all parties hereto. No waiver of any provisions of this Agreement shall be valid unless in writing and signed by the party against whom enforcement is sought. This Agreement may be amended without the consent of any Participant that is not a party hereto, provided that such amendment does not adversely affect the economic benefits to the Participants (taking into account the tax treatment).

14. Severability .

15. Governing Law .

16. Counterparts .

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17. Jurisdiction .

18. Dispute Resolution .

The parties intend that this Section 18 will be valid, binding, enforceable, exclusive and irrevocable and that it shall survive any termination of this Agreement.

(b) Any Dispute (including the determination of the scope or applicability of this agreement to arbitrate) that is not resolved pursuant to clause (a) above shall be submitted to final and binding arbitration in New York before one neutral and impartial arbitrator, in accordance with the Laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, as in effect on November 28, 2011. The parties hereto shall appoint one arbitrator within fifteen (15) days of a demand for arbitration. If an arbitrator is not appointed within such 15-day period, the arbitrator shall be appointed by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, as in effect on November 28, 2011. The arbitrator shall designate the place and time of the hearing. The hearing shall be scheduled to begin as soon as practicable and no later than fifteen (15) days after the appointment of the arbitrator (unless such period is extended by the arbitrator for good cause shown) and shall be conducted as expeditiously as possible, in any event not to exceed forty-five (45) days. The award, which shall set forth the arbitrator’s findings of fact and conclusions of law, shall be filed with JAMS and mailed to the parties no later than thirty (30) days after the close of the arbitration hearing. The arbitration award shall be final and binding on the parties and not subject to collateral attack. Judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.

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19. Rules of Construction .

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20. Time of the Essence .

Time is of the essence with respect to all obligations under this Agreement.

21. No Personal Liability Conferred .

This Agreement shall not create or permit any personal liability or obligation on the part of the Supervisor or any Participant, shareholder, managing member, general partner, director, officer or employee of Owner, the Supervisor, the Company or the Operating Partnership, to the extent applicable, in their capacities as such; provided that nothing in this Section 21 shall be deemed to affect any liability or obligation of any Person pursuant to the Representation, Warranty and Indemnity Agreement among among the Principals, the Company and the Operating Partnership.

22. Changes to Form Agreements .

23. Further Assurances .

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24. Reliance .

25. Survival .

26. Equitable Remedies; Limitation on Damages .

The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with the specific terms hereof or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any federal or state court located in New York (as to which the parties agree to submit to jurisdiction for the purpose of such action), this being in addition to any other remedy to which the parties are entitled under this Agreement; provided, however, that nothing in this Agreement shall be construed to permit Owner to enforce consummation of the IPO.

27. Special Provisions .

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IN WITNESS WHEREOF, Owner, the Company, the Operating Partnership, and Helmsley have executed this Agreement as of the day and year first above written.


EMPIRE STATE REALTY TRUST, INC.

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel


EMPIRE STATE REALTY OP, L.P.

By: Empire State Realty Trust, Inc., its general partner

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel


1400 BROADWAY ASSOCIATES L.L.C. By: Malkin Holdings LLC, Supervisor

By:		/s/ Thomas N. Keltner, Jr.
Name:		Thomas N. Keltner, Jr.
Title:		Executive Vice President and General Counsel


THE ESTATE OF LEONA M. HELMSLEY

By:		/s/ Sandor Frankel
Name:		Sandor Frankel
Title:		Executor

By:		/s/ John Codey
Name:		John Codey
Title:		Executor

Signature page to Amended and Restated Option Agreement for 1400 Broadway

AGREED SOLELY AS TO SECTION 27 (b):

/s/ Peter L. Malkin

Peter L. Malkin

/s/ Anthony E. Malkin

Anthony E. Malkin

Signature page to Amended and Restated Option Agreement for 1400 Broadway Associates

SCHEDULE 2(b)(i)(A)

CALCULATION OF OWNER VALUE

Number of OP Units and/or shares of Common Stock = V/IPO Price

V = AP x TIV

where:

V = Value

AP = Allocable Percentage

TIV = Total Inside Value

“ Total Inside Value ” shall mean the sum of Total Equity minus Public Equity.

Exhibit 21.1

LIST OF SUBSIDIARIES OF EMPIRE STATE REALTY TRUST, INC.

The following list sets forth Empire State Realty Trust, Inc.’s subsidiaries:


Name of Subsidiary		State or Country of Incorporation
Empire State Realty OP, L.P.		Delaware
ESRT Holdings TRS, L.L.C.		Delaware
ESRT Management TRS, L.L.C.		Delaware
ESRT Construction TRS, L.L.C. ESRT Dining and Fitness TRS, L.L.C. ESRT Cleaning TRS, L.L.C.		Delaware Delaware Delaware
ESRT Observatory TRS, L.L.C.		New York
ESRT Captive Insurance Company, L.L.C.		Vermont
ESRT Construction, L.L.C.		Delaware
ESRT Management, L.L.C.		Delaware
ESRT MH Holdings, L.L.C.		New York
Malkin Properties, L.L.C.		New York
Malkin Properties of New York, L.L.C.		New York
ESRT Empire State Building, L.L.C.		Delaware
ESRT One Grand Central Place, L.L.C.		Delaware
ESRT 250 West 57 ^th St., L.L.C.		Delaware
ESRT 501 Seventh Avenue, L.L.C.		Delaware
ESRT 1359 Broadway, L.L.C.		Delaware
ESRT 1350 Broadway, L.L.C.		Delaware
ESRT 1333 Broadway, L.L.C.		Delaware
ESRT Metro Center, L.L.C.		Delaware
ESRT MerrittView, L.L.C.		Delaware
ESRT 500 Mamaroneck Avenue, L.L.C.		Delaware
ESRT 10 BK St., L.L.C.		Delaware
ESRT 10 Union Square, L.L.C.		Delaware
ESRT 1542 Third Avenue, L.L.C.		Delaware
ESRT First Stamford Place Investor, L.L.C.		Delaware
ESRT East West Manhattan Retail, L.L.C.		Delaware
ESRT 69-97 Main St., L.L.C.		Delaware
ESRT 103-107 Main St., L.L.C.		Delaware
ESRT Metro Tower, L.L.C.		Delaware
ESRT First Stamford Place SPE, L.L.C.		Delaware