EXHIBIT TO LETTER OF TRANSMITTAL
Forming Part of the Terms and Conditions of the Exchange Offer
Ladies and Gentlemen:
Upon the terms and conditions of the Exchange Offer (including, if the Exchange Offer is extended or amended, the terms and conditions of such extension or amendment), the undersigned hereby tenders to the Company the number of Series 250 OP Units described in the box above entitled “Description of Series 250 OP Units Tendered.” Subject to and effective upon the acceptance of the Series 250 OP Units tendered hereby, the undersigned hereby assigns and transfers to the Company all right, title and interest in and to such Series 250 OP Units as are being tendered hereby, and releases and discharges the Company, Empire State Realty Trust, Inc. (“ESRT”), and the officers and directors of ESRT, from any and all claims the undersigned may have now, or may have in the future, arising out of, or related to, such Series 250 OP Units.
The undersigned understands that if the Exchange Offer is successfully completed, the undersigned will receive, on aone-for-one basis, a number of Preferred Units with a liquidation preference of $13.52 per unit equal to the number of OP Units acquired by the Company. The Company expects that Preferred Units will be issued in exchange for OP Units acquired in the Exchange Offer promptly after the Expiration Date, subject to the terms and conditions of the Exchange Offer. Any OP Units not accepted will be returned to the registered holder(s) signing this Letter of Transmittal promptly following the expiration or termination of the Exchange Offer. The undersigned hereby acknowledges receipt of the Offer to Exchange, dated September 4, 2019 (the “Offer to Exchange”), the terms of which are incorporated herein by reference.
The undersigned hereby represents and warrants that (i) the undersigned has full power and authority to tender, sell, assign and transfer the Series 250 OP Units, (ii) the undersigned has a net long position in the Series 250 OP Units tendered hereby within the meaning ofRule 14e-4 under the Securities Exchange Act of 1934, as amended (“Rule14e-4”), (iii) the tender of the Series 250 OP Units tendered hereby complies with Rule14e-4, and (iv) when the Series 250 OP Units are accepted for exchange by the Company, the Company will acquire good, marketable and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claim.
The undersigned hereby represents and warrants that the undersigned is the registered owner of the Series 250 OP Units. The undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary described below or the Company to be necessary or desirable to complete the sale, assignment and transfer of the Series 250 OP Units.
The undersigned hereby irrevocably constitutes and appoints American Stock Transfer & Trust Company, LLC (the “Depositary”) as its agent and attorney in fact, with full power and authority in its name, place and stead, with full knowledge that the Depositary is also acting as the agent of the Company in connection with the Exchange Offer, as the undersigned’s true and lawful representative, attorney in fact and agent with respect to the tendered Series 250 OP Units, with full power of substitution, such power of attorney being deemed to be an irrevocable power coupled with an interest, subject only to the right of withdrawal described in the Exchange Offer. Such appointment will be automatically revoked if the Company does not accept the Series 250 OP Units that the undersigned has tendered. The foregoing power of attorney shall terminate upon execution by the Depositary of an instrument of termination that specifies in writing that the foregoing power of attorney is terminated.
All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall not be affected by, and shall survive, the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal representatives, successors and assigns of the undersigned. Except as stated herein or in the Exchange Offer, this tender is irrevocable. This tender may be withdrawn only in accordance with the procedures set forth in the section of the Offer to Exchange entitled “The Exchange Offer—Withdrawal of Tenders.”
The undersigned understands that the acceptance by the Company of Series 250 OP Units validly tendered and not properly withdrawn after the Expiration Date will constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the Exchange Offer.
Please deliver the Preferred Units that are payable in exchange for the undersigned’s tendered Series 250 OP Units (or a statement acknowledging the issuance and recording of such Preferred Units on the record books of the Company) and/or please return any Series 250 OP Units not tendered or accepted for exchange to (or credit the appropriate account of) the registered holder(s) at the address appearing under the above “Description of Series 250 OP Units Tendered” box.
The undersigned acknowledges that no alternative, conditional or contingent tenders will be accepted and no fractional Series 250 OP Units will be purchased. By execution of this Letter of Transmittal (or facsimile thereof), the undersigned hereby waives any right to receive any notice of the acceptance of their Series 250 OP Units for exchange.
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