Equity Commonwealth (Form: 8-K, Received: 11/14/2016 06:10:45)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT PURSUANT

TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): November 10, 2016

EQUITY COMMONWEALTH

(Exact Name of Registrant as Specified in Its Charter)

Maryland

(State or Other Jurisdiction of Incorporation)

1-9317		04-6558834
(Commission File Number)		(IRS Employer Identification No.)

Two North Riverside Plaza, Suite 2100, Chicago, IL		60606
(Address of Principal Executive Offices)		(Zip Code)

(312) 646-2800

(Registrant’s Telephone Number, Including Area Code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2 below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry into a Material Definitive Agreement

UPREIT Conversion and Contribution Agreement

On November 10, 2016, Equity Commonwealth (the “Company”) converted to what is commonly referred to as an umbrella partnership real estate investment trust, or UPREIT, structure (the “UPREIT Conversion”). In connection with this conversion, the Company contributed substantially all of its assets to EQC Operating Trust, a Maryland real estate investment trust through which the Company will conduct its business (the “Operating Trust”), and the Operating Trust assumed substantially all of the Company’s liabilities pursuant to a Contribution and Assignment Agreement between the Company and the Operating Trust (the “Contribution Agreement”).

The Company now conducts and intends to continue to conduct substantially all of its activities through the Operating Trust. The Company currently is the sole holder of shares of beneficial interest, designated as units, in the Operating Trust (“OP Units”) and the sole trustee of the Operating Trust. As the sole trustee, the Company generally has the exclusive power under the declaration of trust of the Operating Trust to manage and conduct the business of the Operating Trust, subject to certain limited approval and voting rights of other holders of OP Units (“Unitholders”) that may be admitted as Unitholders in the future. The Operating Trust also issued to the Company 4,915,196 Series D preferred units (“Series D Preferred Units”) with terms that substantially mirror the economic terms of the Company’s currently outstanding Series D preferred shares (“Series D Preferred Shares”).

Amended and Restated Credit Agreement

In connection with the UPREIT Conversion, the Operating Trust entered into an Amended and Restated Credit Agreement, dated as of November 10, 2016, by and among the Operating Trust, as borrower, Wells Fargo Bank, National Association, as administrative agent, and the other financial institutions or entities from time to time party thereto (the “A&R Credit Agreement”), replacing the Company’s prior credit agreement. Under the A&R Credit Agreement, the Operating Trust has assumed all obligations of the Company as borrower and the Company is released from such obligations. The A&R Credit Agreement was amended and restated primarily to facilitate changes necessary to complete the UPREIT Conversion. The economic terms of the A&R Credit Agreement are substantially the same as the terms of the Company’s prior credit agreement.

Assumption Agreement

Also in connection with the UPREIT Conversion, the Company and the Operating Trust entered into an Assumption Agreement (the “Assumption Agreement”) whereby the Operating Trust expressly assumed all of the liabilities under each class of outstanding senior notes originally issued by the Company. These include the Company’s 6.25% senior notes due 2017 (balance of $250 million), 6.65% senior notes due 2018 (balance of $250 million), 5.88% senior notes due 2020 (balance of $250 million) and 5.75% senior notes due 2042 (balance of $175 million) (collectively, the “Senior Notes”). Each of these series was issued under the Indenture dated as of July 9, 1997, between the Company and U.S. Bank National Association, as successor to State Street Bank and Trust Company, as trustee, and pursuant to supplemental indentures with respect to each series of Senior Notes. Pursuant to the Assumption Agreement, the Operating Trust is obligated to satisfy payment obligations of the Senior Notes by making payments either directly to holders or to the Company if the Company has been required to make any payments to holders. Notwithstanding the terms of the Assumption Agreement, the Company continues to be the primary obligor and is not released from its obligations with respect to the Senior Notes as a result of the Assumption Agreement.

The forgoing summaries of the Contribution Agreement, A&R Credit Agreement and the Assumption Agreement do not purport to be complete and are qualified in their entirety by reference to the copies thereof attached as Exhibits 10.2, 10.3 and 10.4 hereto, which are incorporated herein by reference.

Operating Agreement

In connection with the UPREIT Conversion, the Company entered into a Declaration of Trust with respect to the Operating Trust (the “Operating Agreement”). The following is a summary of the terms of the Operating

Agreement, which does not purport to be complete and is qualified in its entirety by reference to the copy thereof attached as Exhibit 10.1 hereto and incorporated herein by reference.

Management of the Operating Trust

The Company is the sole trustee of the Operating Trust. Pursuant to the Operating Agreement, the Company will have full, complete and exclusive responsibility and discretion to manage and control the Operating Trust. The Operating Agreement provides the Company with the ability to, among other things, cause the Operating Trust to enter into certain major transactions including acquisitions, dispositions and refinancings, to make distributions to Unitholders and to cause changes in the Operating Trust’s business strategies.

The Operating Agreement requires the Operating Trust to be operated in a manner that enables the Company to satisfy the requirements for being classified as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986 (“Code”) and to ensure that the Operating Trust will not be classified as a “publicly-traded partnership” taxable as a corporation under Section 7704 of the Code.

Outside Activities of Operating Trust

Subject to certain exceptions, substantially all of the assets of the Company will consist of its ownership of OP Units in the Operating Trust. However, the Operating Agreement authorizes the Company, in its sole and absolute discretion, to hold or acquire certain assets in its own name or otherwise other than through the Operating Trust so long as the Company enters into an agreement to ensure that the economic benefits and burdens of such assets are otherwise vested in the Operating Trust.

Capitalization

Initially, the Partnership Agreement will provide for three classes of OP Units: Class A Units, Series D Preferred Units and LTIP Units. The terms and rights of these classes are described below. Under the Operating Agreement, the Company will be authorized to cause the Operating Trust to issue additional OP Units or other beneficial interests in the Operating Trust to its Unitholders, including the Company and its affiliates, or other persons without the approval of any Unitholder. OP Units may be issued in one or more classes or in one or more series of any class, with designations, preferences and relative, participating, optional or other special rights, powers and duties, including rights, powers and duties senior to one or more other classes of units (including OP Units held by the Company), as determined by the Company, subject to Maryland law, in its sole and absolute discretion without the approval of any Unitholder, subject to limitations described below. No OP Unit or beneficial interest in the Operating Trust may be issued to the Company unless:

· the Operating Trust issues OP Units or other beneficial interests in connection with the grant, award or issuance of shares or other equity interests in the Company having designations, preferences and other rights so that the economic interests attributable to the newly issued shares or other equity interests in the Company are substantially similar to the designations, preferences and other rights, except voting rights, of the OP Units or other beneficial interests issued to the Company; or

· the Operating Trust issues the additional OP Units or other beneficial interests to all Unitholders holding OP Units or other beneficial interests in the same class or series in proportion to their respective percentage interests in that class or series.

Under the Operating Agreement, the Company is obligated to contribute the net proceeds of any future offering of the Company’s common shares as additional capital to the Operating Trust.

Common Units

Initially, the Operating Agreement will authorize one class of common OP units, which are referred to as Class A Units. Class A Units are the general common class of OP Units (not specifically designated by the trustee as being of another specified class of OP Units). Distributions with respect to Class A Units will generally mirror distributions with respect to the Company’s common shares.

Series D Preferred Units

The Operating Agreement authorizes a series of OP Units designated as “Series D Cumulative Convertible Preferred Units,” which are referred to as Series D Preferred Units. The Series D Preferred Units are being issued to the Company to mirror the Company’s outstanding Series D Preferred Shares and have economic terms, including with respect to distributions, liquidation, redemption and conversion, substantially similar to the Company’s Series D Preferred Shares, including a 6.50% per annum distribution rate and liquidation preference of $25 per unit.

LTIP Units

LTIP units are a class of beneficial interests in the Operating Trust that may be issued to employees, officers, directors or trustees of the Operating Trust, the Company or their subsidiaries (“LTIP Units”). LTIP Units are a special class of interests in the Operating Trust that are structured to qualify as “profits interests” for tax purposes, with the result that at issuance, subject to certain limited exceptions, they have no capital account in the Operating Trust. LTIP Units may be issued fully vested or subject to vesting requirements. Holders of LTIP Units generally will be entitled to receive the same per-unit distributions as the other outstanding OP Units in the Operating Trust, except that LTIP Units that are subject to performance vesting will not participate in distributions until expiration of the applicable performance period, at which time they will become entitled to receive a special catch-up distribution for the periods prior to such time, and subject to the Operating Trust generating sufficient net income or gain after issuance of the LTIP Units.

Initially, each LTIP Unit will have a capital account of zero, subject to certain limited exceptions, and, therefore, the holder of the LTIP Unit would receive nothing if the Operating Trust distributed all of its assets immediately after the LTIP Unit is awarded. However, the Operating Agreement requires that “book gain” or economic appreciation realized by the Operating Trust in its assets, whether as a result of an actual asset sale or upon the revaluation of its assets, as permitted by applicable treasury regulations, be allocated first to the LTIP Units until the capital account per LTIP Unit is equal to the capital account per OP Unit. The applicable treasury regulations and the Operating Agreement provide that assets of the Operating Trust may be revalued upon specified events, including upon additional capital contributions by the Company or other Unitholders, upon a distribution by the Operating Trust to a Unitholder in redemption of its beneficial interests, upon the liquidation of the Operating Trust or upon a later issuance of additional LTIP Units. Any such allocation of “book gain” will be allocated among the outstanding LTIP Units based on the order in which they were issued.

Each LTIP Unit will convert automatically into an OP Unit on a one-for-one basis when the LTIP Unit becomes vested (if subject to vesting) and upon equalization of its capital account with the per-unit capital account of the OP Units. In addition, to the extent not already converted automatically, LTIP Units may be converted by the holder or by the Operating Trust at any time into a number of OP Units equal to the then-capital account of such LTIP Units divided by the per-unit capital account of each OP Unit. There is a risk that an LTIP Unit will never become convertible into one OP Unit because of insufficient gain realization to equalize capital accounts, and, therefore, the value that a holder will realize for a given number of vested LTIP Units may be less than the value of an equal number of the Company’s common shares. Additionally, there is a risk that the Operating Trust will not generate sufficient net income or gain to allow distributions with respect to the LTIP Units.

In the event of a merger or similar transaction, any unvested LTIP Units will either be (i) accelerated in accordance with the Company’s equity incentive plan (whether full acceleration, for time-based units, or acceleration based on performance, for performance-based units) and then converted, or (ii) assumed by the buyer in such transaction.

Transferability of Interests

Unitholders may not transfer their OP Units without the consent of the Company except in a permitted transfer, as described in the Operating Agreement. Permitted transfers include, but are not limited to, transfers to family members or trusts for the benefit of or owned by such family members; as a gift; to heirs upon death; to partners, unitholders or stockholders of a Unitholder that is an entity; to another Unitholder; or to a lender in a secured loan transaction.

The Company, as sole trustee, generally may not transfer any of its OP Units or withdraw as the sole trustee of the Operating Trust, except (i) in connection with a merger, consolidation or other combination with or into another person following the consummation of which the equity holders of the surviving entity are substantially identical to the Company’s shareholders, (ii) with the consent of Unitholders holding a majority of OP Units (other than those held by the Company or its subsidiaries), (iii) to any of the Company’s affiliates, or (iv) in connection with an “extraordinary transaction” as described below.

The Company may not engage in an “extraordinary transaction,” defined to be a merger, consolidation or other combination with or into another person or a sale of all or substantially all of our assets or any reclassification, recapitalization or change of its outstanding shares (except for certain reclassifications, recapitalizations or changes) unless each Unitholder receives or has the right to receive for each OP Unit cash, securities or other property in the same form as, and equal in amount to the greatest amount of cash, securities or other property paid to a holder of common shares of the Company.

Mergers and Sales of Assets of the Operating Trust

The Company generally will have the exclusive power to cause the Operating Trust to merge, reorganize, consolidate, sell all or substantially all of its assets or otherwise combine its assets with another entity.

Redemption Rights

Pursuant to the Operating Agreement, Unitholders (other than the Company) generally have the right, commencing six months from the date of issuance of such OP Units, to cause the Operating Trust to redeem their OP Units in exchange for cash or, at the option of the Company, common shares of the Company on a one-for-one basis. Unitholders may exercise the redemption right from time to time without limitation as to frequency with respect to all or part of the OP Units they own, but may not exercise the redemption right for less than 1,000 OP Units at any given time or, if such Unitholder holds less than 1,000 OP Units, all the OP Units owned by such Unitholder. The number of common shares of the Company issuable upon redemption of OP Units may be adjusted upon the occurrence of certain events such as share dividends, share subdivisions or combinations.

Unless the Company elects to assume and perform the Operating Trust’s obligation with respect to the OP Unit redemption right, as described below, a Unitholder exercising the redemption right will receive cash from the Operating Trust in an amount equal to the market value of common shares of the Company for which the OP Units would have been redeemed if the Company had assumed and satisfied the Operating Trust’s obligation by paying common shares of the Company, as described below. The market value of the Company’s common shares for this purpose (assuming a market then exists) will be equal to the average of the closing trading price of the Company’s common shares on the NYSE for the 10 trading days before the day on which the Company received the redemption notice.

The Company may elect to assume and perform the Operating Trust’s obligation to acquire the OP Units being redeemed in exchange for either cash in the amount specified above or a number of common shares of the Company equal to the number of OP Units offered for redemption, adjusted to take into account prior share dividends or any subdivisions or combinations of the Company’s common shares. As sole trustee, the Company will have the sole discretion to elect whether the redemption right will be satisfied by the Company in cash or the Company’s common shares. No redemption or exchange can occur if delivery of common shares by the Company would be prohibited either under the provisions of the Company’s charter or under applicable federal or state securities laws, in each case regardless of whether the Company would in fact elect to assume and satisfy the unit redemption right with common shares.

Distributions

The Operating Agreement provides that the Operating Trust will distribute available cash of the Operating Trust as the Company determines in its sole and absolute discretion is appropriate for distribution to Unitholders to the Company and the other Unitholders in accordance with their respective percentage interests in the Operating Trust. The Company may cause the Operating Trust to make distributions to the Company as necessary to enable the

Company to satisfy the requirements for qualification as a REIT under the Code and avoid any federal income or excise tax liability.

Upon the liquidation of the Operating Trust, after payment of debts and obligations, any remaining assets of the Operating Trust will be distributed to the holders of the OP Units that are entitled to any preference in distribution upon liquidation in accordance with the rights of any such class or series, and the balance, if any, will be distributed to the Unitholders in accordance with their capital accounts, after giving effect to all contributions, distributions and allocations for all periods.

Allocations

Net income and net loss of the Operating Trust will be determined and allocated among the Unitholders with respect to each taxable year of the Operating Trust. Except as otherwise provided in the Operating Agreement, an allocation of a share of net income or net loss is treated as an allocation of the same share of each item of income, gain, loss or deduction that is taken into account in computing net income or net loss. Except as otherwise provided in the Operating Agreement, net income and net loss are allocated among the Unitholders (including the Company) in accordance with their respective percentage interests. The Operating Agreement contains provisions for special allocations intended to comply with certain regulatory requirements under the Code.

Amendments of the Operating Agreement

The Company, without the consent of the other Unitholders, may amend the Operating Agreement in any respect, provided that the following amendments require the consent of Unitholders holding more than 50% of the OP Units (other than those held by the Company or its subsidiaries):

· any amendment affecting the operation of the conversion factor (relating to conversion of LTIP Units to OP Units) or the redemption right (except as otherwise provided in the Operating Agreement) in a manner that adversely affects the Unitholders in any material respect;

· any amendment that would adversely affect the rights of the Unitholders to receive the distributions payable to them under the Operating Agreement (other than with respect to the creation or issuance of new or additional OP Units pursuant to the Operating Agreement) in a manner that adversely affects the Unitholders in any material respects;

· any amendment that would materially alter the Operating Trust’s allocations of profit and loss to the Unitholders, other than with respect to the creation or issuance of new or additional OP Units pursuant to the Operating Agreement;

· any amendment that would modify the limited liability of a Unitholder;

· any amendment that would impose on the Unitholders any obligation to make additional capital contributions to the Operating Trust; or

· any amendment to certain provisions of the Operating Agreement relating to the preservation of the UPREIT structure, requirement for equal treatment of Unitholders in an “extraordinary transaction” or allowance of permitted transfers by Unitholders.

Fiduciary Responsibilities, Limitation of Liability and Indemnification

The Unitholders of the Operating Trust expressly acknowledge that the Company is acting for the benefit of the Operating Trust, the Unitholders (including the Company) and the Company’s shareholders collectively and that the Company is under no obligation to consider the separate interests of the Unitholders (including, without limitation, the tax consequences to some or all of the Unitholders) in deciding whether to cause the Operating Trust to take, or decline to take, any actions. Any decisions or actions taken or not taken in accordance with the terms of the Operating Agreement will not constitute a breach of any fiduciary duty owed by the Company to the Operating

Trust or the Unitholders. The Company will not be liable for monetary or other damages or otherwise for losses sustained, liabilities incurred or benefits not derived by the Unitholders in connection with such decisions unless the Company acted with willful misfeasance, bad faith, gross negligence or reckless disregard of duty and the act or omission was material to the matter giving rise to the loss, liability or benefit not derived.

To the maximum extent permitted by applicable Maryland law, the Operating Agreement allows the Operating Trust to indemnify, and to pay or reimburse reasonable expenses to, the Company and the Company’s and the Operating Trust’s present or former unitholders, trustees, officers or agents and any other persons acting on behalf of the Company that the Company may designate from and against all claims and liabilities by reason of his, her or its service in such capacity. The Operating Trust has the power, with the approval of the Company, to provide such indemnification and advancement of expenses

Term

The Operating Trust will continue indefinitely or until sooner dissolved upon:

· the bankruptcy of the Company or an event of withdrawal of the Company as trustee unless Unitholders holding more than 50% of the outstanding OP Units elect to continue the Operating Trust and appoint a replacement trustee);

· an election by the Company to dissolve the Operating Trust in its sole and absolute discretion;

· judicial order; or

· the passage of 90 days after the sale of all or substantially all of the assets and properties of the Operating Trust for cash or for marketable securities.

Tax Matters

The Operating Trust provides that the Company is tax matters unitholder for federal, state and local income tax administrative or judicial proceedings and is treated as the “tax matters partner” and the “partnership representative under the Code and, as such, has authority to handle tax audits and judicial reviews and to make tax elections under the Code on behalf of the Operating Trust.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

The disclosure set forth in Item 1.01 hereof is incorporated in this Item 2.03 by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number		Description
10.1		Articles of Amendment and Restatement of Declaration of Trust of EQC Operating Trust, dated as of November 10, 2016

10.2		Contribution and Assignment Agreement, dated as of November 10, 2016, between Equity Commonwealth and EQC Operating Trust

10.3		Amended and Restated Credit Agreement, dated as of November 10, 2016, among EQC Operating Trust, as borrower, Wells Fargo Bank, National Association, as administrative agent, and the other financial institutions or entities from time to time party thereto

10.4		Assumption Agreement, dated as of November 10, 2016, between Equity Commonwealth and EQC Operating Trust

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	EQUITY COMMONWEALTH

	By:	/s/ Orrin S. Shifrin
	Name:	Orrin S. Shifrin
	Title:	Executive Vice President, General Counsel and Secretary

Date: November 14, 2016

EXHIBIT INDEX

Exhibit Number		Description
10.1		Articles of Amendment and Restatement of Declaration of Trust of EQC Operating Trust, dated as of November 10, 2016

10.2		Contribution and Assignment Agreement, dated as of November 10, 2016, between Equity Commonwealth and EQC Operating Trust

10.3		Amended and Restated Credit Agreement, dated as of November 10, 2016, among EQC Operating Trust, as borrower, Wells Fargo Bank, National Association, as administrative agent, and the other financial institutions or entities from time to time party thereto

10.4		Assumption Agreement, dated as of November 10, 2016, between Equity Commonwealth and EQC Operating Trust

Exhibit 10.1

EQC OPERATING TRUST

(formerly known as Hub Properties Trust)

ARTICLES OF AMENDMENT AND RESTATEMENT OF DECLARATION OF TRUST

EQC OPERATING TRUST, a Maryland real estate investment trust (the “ Trust ”) under Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland (“ Title 8 ”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:

FIRST: The Trust desires to amend and restate its Declaration of Trust, as amended (the “ Declaration ”), as currently in effect and as hereinafter amended.

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

ARTICLE I

FORMATION

The Trust is a real estate investment trust within the meaning of Title 8. The Trust shall not be deemed to be a general partnership, limited partnership, joint venture, joint stock company or a corporation.

ARTICLE II

OPERATIVE PROVISIONS

The Declaration includes and is subject to Annex A attached hereto in its entirety. The terms and provisions of Annex A are incorporated by reference herein and are deemed to be a part hereof as if, and with the same effect as if, such terms and provisions were directly stated herein. The Declaration, including Annex A , sets forth all of the provisions required for the regulation and governance of the Trust and the administration of its affairs, and the Trust shall not be required to adopt or maintain bylaws. Accordingly, upon the filing and acceptance for record of the Declaration with the Maryland State Department of Assessments and Taxation, the Trust’s Bylaws shall be automatically repealed and of no further force or effect.

ARTICLE III

NAME

The name of the Trust is EQC Operating Trust.

The Trustee may further change the name of the Trust without approval of the unitholders.

ARTICLE IV

PURPOSES AND POWERS

The Trust shall have the purposes and powers set forth in Annex A hereto.

ARTICLE V

PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT

The address of the principal office of the Trust in the State of Maryland is c/o CSC Lawyers Incorporating Service Company, 7 St. Paul Street, Suite 820, Baltimore, Maryland 21202. The Trust may have such offices or places of business within or outside the State of Maryland as the Trustee may from time to time determine.

The name of the resident agent of the Trust in the State of Maryland is CSC Lawyers Incorporating Service Company, whose post office address is 7 St. Paul Street, Suite 820, Baltimore, Maryland 21202. The resident agent is a citizen of and resides in the State of Maryland.

ARTICLE VI

TRUSTEE; OFFICERS

Section 6.1 Number; Nature of the Trustee . The number of trustees shall be one (1) (the “ Trustee ”); provided that the number of trustees may be increased or, if increased, may be thereafter decreased in the sole discretion of the Trustee. The Trustee may be any person, including an individual, corporation, business trust, estate, trust, partnership, limited partnership, limited liability company, association or any other legal or commercial entity. The name of the current Trustee is as follows:

Name		Address
Equity Commonwealth		Two North Riverside Plaza, Suite 2100, Chicago, IL 60606

The records of the Trust shall be revised to reflect the names and addresses of the then-current Trustee at such times as any change has occurred.

Section 6.2 Powers of the Trustee . Subject to any express limitations contained in the Declaration, including in Annex A hereto, (a) the business and affairs of the Trust shall be managed under the direction of the Trustee, (b) the Trustee shall have full, exclusive and absolute power, control and authority over any and all property of the Trust, and (c) the Trustee may take any action as in its sole judgment and discretion is necessary or appropriate to conduct the business and affairs of the Trust (including, without limitation, causing the Trust to elect to qualify for federal income tax treatment as a disregarded entity or a partnership). The Declaration shall be construed with the presumption in favor of the grant of power and authority to the Trustee. Any construction of the Declaration or determination made in good faith by the Trustee concerning its powers and authority hereunder shall be conclusive. The enumeration and definition of particular powers of the Trustee included in the Declaration shall in no way be limited or restricted by reference to or inference from the terms of this or any other provision of the Declaration or construed or deemed by inference or

otherwise in any manner to exclude or limit the powers conferred upon the Trustee under the general laws of the State of Maryland or any other applicable laws.

Section 6.3 Resignation, Removal or Death . The Trustee may resign by written notice to the unitholders, effective upon execution and delivery of such written notice or upon any future date specified in the notice. The Trustee may not be removed by the unitholders with or without cause.

Section 6.4 Vacancy . If for any reason the current Trustee ceases to be the Trustee, such event shall not terminate the Trust or affect the Declaration. Any such vacancy shall be filled, at any regular meeting or at any special meeting called for that purpose, by a majority of the unitholders. Any individual, corporation, business trust, estate, trust, partnership, limited partnership, limited liability company, association or any other legal or commercial entity so elected as Trustee shall hold office for the unexpired term of the Trustee he, she or it is replacing and until a successor is elected and qualifies.

Section 6.5 Action by the Trustee . The Trustee may act by written consent, which may be effected in writing or by electronic transmission.

Section 6.6 Reliance . The Trustee and each officer, employee and agent of the Trust shall, in the performance of his, her or its duties with respect to the Trust, be fully justified and protected with regard to any act or failure to act in reliance in good faith upon the books of account or other records of the Trust, upon an opinion of counsel or upon reports made to the Trust by any of its officers or employees or by the adviser, accountants, appraisers or other experts or consultants selected by the Trustees or officers of the Trust.

Section 6.7 Officers . The Trustee may appoint from time to time such officers with such titles as the Trustee determines to be necessary or appropriate. Any such officers shall exercise such powers and perform such duties as may be determined from time to time by resolution of the Trustee.

ARTICLE VII

UNITS OF BENEFICIAL INTEREST

Section 7.1 Authorized Units . The beneficial interest of the Trust shall be divided into shares of beneficial interest, which shall be designated as units (the “ Units ”). The Trust has authority to issue 400,000,000 Units, $0.01 par value per unit. The Units each shall have the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms and conditions of redemption for each class or series as set forth in Annex A . The Trustees shall have the powers to issue, classify, re-classify and pay distributions on the Units as set forth in Annex A .

Section 7.2 Outstanding Units . Upon the filing and acceptance for record of the Declaration with the Maryland State Department of Assessments and Taxation, all then-outstanding beneficial interests in the Trust held by the Trustee shall be represented by Units as specified in Annex A .

Section 7.3 General Nature of Units . All Units shall be personal property entitling the unitholders only to those rights provided in the Declaration. The unitholders shall have no interest in the property of the Trust and shall have no right to compel any partition, division, dividend or distribution of the Trust or of the property of the Trust. The death of a unitholder shall not terminate the Trust. The Trust is entitled to treat as unitholders only those persons in whose names Units are registered as holders of Units on the unit ledger of the Trust.

Section 7.4 Fractional Units . The Trust may, without the consent or approval of any unitholder, issue fractional Units, eliminate a fraction of a Unit by rounding up or down to a full Unit, arrange for the disposition of a fraction of a Unit by the person entitled to it, or pay cash for the fair value of a fraction of a Unit.

Section 7.5 Units Subject to Declaration . All persons who shall acquire a Unit shall acquire the same subject to the provisions of the Declaration.

Section 7.6 Transferability; Transfer Restrictions . Units in the Trust shall be transferable only in accordance with the provisions of Annex A . By accepting the transfer of Units, whether of record or beneficially, all future unitholders agree to be bound by the provisions of Annex A as fully as if such unitholders had executed a stockholders agreement containing all of such provisions.

ARTICLE VIII

UNITHOLDERS

Section 8.1 Preemptive and Appraisal Rights . Except as may be provided by the Trustee in setting the terms of classified or reclassified Units or as may otherwise be provided by a contract approved by the Trustee, no holder of Units shall, as such holder, (a) have any preemptive right to purchase or subscribe for any additional Units or any other security of the Trust which it may issue or sell or (b) have any right to, or otherwise be entitled to, exercise any rights of an objecting stockholder under Title 8 or under Title 3, Subtitle 2 of the MGCL or any successor statute, unless the Trustee shall determine that such rights apply, with respect to all or any Units of all or any classes or series of Units, to one or more transactions occurring after the date of such determination in connection with which holders of such Units would otherwise be entitled to exercise such rights.

Section 8.2 Approval of Extraordinary Actions . Except as specifically provided in the Declaration (including Annex A ), notwithstanding any provision of law permitting or requiring any action to be taken or approved by the affirmative vote of the holders of Units entitled to cast a greater proportion of votes, any such action shall be effective and valid if declared advisable by the Trustee and taken or approved by the affirmative vote of holders of Units entitled to cast a majority of all the votes entitled to be cast on the matter. This Section 8.2 is intended to accomplish the purpose described in Section 8-202(c) of Title 8.

Section 8.3 Meetings Generally . Meetings of the unitholders shall be held in accordance with the terms and provisions of Annex A ; provided that an annual meeting of the unitholders for the transaction of any business within the powers of the Trust shall be held each year at a

convenient location and on proper notice, on a date and at the time set by the Trustee; provided further that every third year (beginning with the third annual meeting following the date of the Declaration) such business shall include the election of the Trustee. Failure to hold an annual meeting does not invalidate the Trust’s existence or affect any otherwise valid acts of the Trust. If there is no Trustee, the officers of the Trust shall promptly call a special meeting of the unitholders entitled to vote for the election of a successor Trustee.

ARTICLE IX

LIABILITY OF TRUSTEE, UNITHOLDERS, OFFICERS,
EMPLOYEES AND AGENTS, AND OTHER MATTERS

Section 9.1 Limitation of Liability of Unitholders, Trustee, Officers, Employees and Agents for Obligations of the Trust . The Trustee and the officers, employees and agents of the Trust and the Trustee, in incurring any debts, liabilities or obligations or in taking or omitting any other actions for or in connection with the Trust, are, and shall be deemed to be, acting as the trustee, officers, employees or agents of the Trust and not in their own individual capacities. Except as otherwise provided in Section 9.3 hereof with respect to liability of the Trustee or officers, agents or employees of the Trust or the Trustee to the Trust or to unitholders, no unitholder, Trustee or officer, employee or agent of the Trust or the Trustee shall be liable for any debt, claim, demand, judgment decree, liability or obligation of any kind (in tort, contract or otherwise) of, against or with respect to the Trust or arising out of any action taken or omitted for or on behalf of the Trust, and the Trust shall be solely liable therefor and resort shall be had solely to the property, real, personal or otherwise, tangible or intangible, which is transferred, conveyed or paid to or purchased by the Trust or the Trustee and all rents, income, profits and gains therefrom and which at such time is owned or held by or for the Trust or the Trustee (the “ Trust Estate ”) for the payment or performance thereof, and no unitholder, Trustee or officer, employee or agent of the Trust or the Trustee shall be subject to any personal liability whatsoever, in tort, contract or otherwise, to any other person or persons in connection with the Trust Estate or the affairs of the Trust (or any actions taken or omitted for or on behalf of the Trust), and all such other persons shall look solely to the Trust Estate for satisfaction of claims of any nature arising in connection with the Trust Estate or the affairs of the Trust (or any action taken or omitted for or on behalf of the Trust).

Section 9.2 Express Exculpatory Clauses and Instruments . Any written instrument creating an obligation of the Trust may include a reference to the Declaration and provide that neither the unitholders nor the Trustee nor any officers, employees or agents of the Trust or the Trustee shall be liable thereunder and that all persons shall look solely to the Trust Estate for the payment of any claim thereunder or for the performance thereof; however, the omission of such provision from any such instrument shall not render the unitholders, the Trustee, or any officer, employee or agent of the Trust or the Trustee liable nor shall the Trustee or the unitholders or any officer, employee or agent of the Trust or the Trustee be liable to any one for such omission.

Section 9.3 Limitation of Liability of the Trustee, Officers, Employees and Agents to the Trust and to Unitholders for Acts and Omissions . Neither the Trustee nor any officer, employee or agent of the Trust or Trustee shall have any greater duties than those established by this Declaration or, in cases as to which such duties are not so established, than those of the

directors, officers, employees and agents of a Maryland business corporation in effect from time to time. Neither the Trustee nor any officer, employee or agent of the Trust or the Trustee shall be liable to the Trust, unitholders or to any other person for any act or omission except for its own willful misfeasance, bad faith, gross negligence or reckless disregard of duty.

Section 9.4 Indemnification and Reimbursement of Expenses . The Trust shall have the power, to the maximum extent permitted by Maryland statutory or decisional law in effect from time to time, to obligate itself to indemnify, and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, (a) the Trustee and any individual who is a present or former unitholder, trustee, officer or agent of the Trust or the Trustee or (b) the Trustee and any individual who, while a unitholder, trustee, officer or agent of the Trust or the Trustee and at the express request of the Trust, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, unitholder, partner or trustee of such corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, from and against all claims and liabilities to which such person may become subject by reason of his being or having been the Trustee or a unitholder, trustee, officer or agent of the Trust or the Trustee. The Trust shall have the power, with the approval of the Trustee, to provide such indemnification and advancement of expenses to a person who served a predecessor of the Trust in any of the capacities described in (a) or (b) above and to any employee or agent of the Trust or a predecessor of the Trust.

Section 9.5 Right of the Trustee, Officers, Employees and Agents to Own Units or Other Property and to Engage in Other Business . The Trustee or any officer, employee or agent of the Trust may acquire, own, hold and dispose of Units in the Trust, for his individual account, and may exercise all rights of a unitholder to the same extent and in the same manner as if not the Trustee or an officer, employee or agent of the Trust.

Section 9.6 Transactions Between the Trustee, Officers, Employees or Agents and the Trust . Subject to any express restrictions in this Declaration or adopted by the Trustee by resolution, the Trust may enter into any contract or transaction of any kind with any person, including the Trustee or any officer, employee or agent of the Trust or any person affiliated with the Trustee, officer, employee or agent of the Trust, whether or not any of them has a financial interest in such transaction.

Section 9.7 Persons Dealing with the Trustee, Officers, Employees or Agents . Any act of the Trustee or of the officers, employees or agents of the Trust purporting to be done in their capacity as such, shall, as to any persons dealing with the Trustee or such officers, employees or agents, be conclusively deemed to be within the purposes of this Trust and within the powers of the Trustee or such officers, employees or agents. No person dealing with the Trustee or with the officers, employees or agents of the Trust shall be bound to see to the application of any funds or property passing into their hands or control. The receipt of the Trustee or of authorized officers, employees or agents of the Trust, for moneys or other consideration, shall be binding upon the Trust.

Section 9.8 Reliance . The Trustee and the officers, employees and agents of the Trust may consult with counsel (which may be a firm in which one or more of the officers, employees

or agents of the Trust is or are members) and the advice or opinion of such counsel shall be full and complete personal protection to the Trustee and all the officers, employees and agents of the Trust in respect of any action taken or suffered by them in good faith and in reliance on or in accordance with such advice or opinion. In discharging their duties, the Trustee or the officers, employees or agents of the Trust, when acting in good faith, may rely upon financial statements of the Trust represented to them to fairly present the financial position or results of operations of the Trust by the chief financial officer of the Trust or the officer of the Trust having charge of its books of account, or stated in a written report by an independent certified public accountant fairly to present the financial position or results of operations of the Trust. The Trustee and the officers, employees and agents of the Trust may rely, and shall be personally protected in acting, upon any instrument or other document believed by them to be genuine.

ARTICLE X

AMENDMENTS

The Trust reserves the right from time to time to make any amendment to the Declaration, now or hereafter authorized by law, including, without limitation, any amendment altering the terms or contract rights, as expressly set forth in the Declaration, of any Units. All rights and powers conferred by the Declaration on unitholders, Trustees and officers are granted subject to this reservation. The Trust shall file Articles of Amendment as required by Maryland law. All references to the Declaration shall include all amendments thereto. The Declaration may be amended from time to time only in accordance with the provisions set forth in Annex A . As permitted by Section 8.2 hereof, and except as otherwise provided in Annex A or permitted by Title 8, any amendment to the Declaration shall be valid only if recommended by the Trustee and approved by the affirmative vote of holders of Units entitled to cast a majority of all the votes entitled to be cast on the matter.

ARTICLE XI

MISCELLANEOUS

Section 11.1 Governing Law . The Declaration is executed by the undersigned Trustees and delivered in the State of Maryland with reference to the laws thereof, and the rights of all parties and the validity, construction and effect of every provision hereof shall be subject to and construed in accordance with the laws of the State of Maryland without regard to conflicts of laws provisions thereof.

Section 11.2 Reliance by Third Parties . Any certificate shall be final and conclusive as to any person dealing with the Trust if executed by the Secretary or an Assistant Secretary of the Trust or a Trustee, and if certifying to: (a) the number or identity of Trustees, officers of the Trust or unitholders; (b) the due authorization of the execution of any document; (c) the action or vote taken, and the existence of a quorum, at a meeting of the Trustee or unitholders; (d) a copy of the Declaration as a true and complete copy as then in force; (e) an amendment to the Declaration; (f) the termination of the Trust; or (g) the existence of any fact relating to the affairs of the Trust. No purchaser, lender, transfer agent or other person shall be bound to make any inquiry concerning the validity of any transaction purporting to be made by the Trust on its behalf or by any officer, employee or agent of the Trust.

Section 11.3 Severability .

(a) The provisions of the Declaration are severable, and if the Trustee shall determine, with the advice of counsel, that any one or more of such provisions (the “ Conflicting Provisions ”) are in conflict with Title 8 or other applicable federal or state laws, the Conflicting Provisions, to the extent of the conflict, shall be deemed never to have constituted a part of the Declaration, even without any amendment of the Declaration and without affecting or impairing any of the remaining provisions of the Declaration or rendering invalid or improper any action taken or omitted prior to such determination. No Trustee shall be liable for making or failing to make such a determination. In the event of any such determination by the Trustee, the Trustee shall amend the Declaration in the manner provided in Annex A .

(b) If any provision of the Declaration shall be held invalid or unenforceable in any jurisdiction, such holding shall apply only to the extent of any such invalidity or unenforceability and shall not in any manner affect, impair or render invalid or unenforceable such provision in any other jurisdiction or any other provision of the Declaration in any jurisdiction.

Section 11.4 Construction . In the Declaration, unless the context otherwise requires, words used in the singular or in the plural include both the plural and singular and words denoting any gender include all genders. The title and headings of different parts are inserted for convenience and shall not affect the meaning, construction or effect of the Declaration.

Section 11.5 Recordation . The Declaration and any articles of amendment hereto or articles supplementary hereto shall be filed for record with the Maryland State Department of Assessments and Taxation and may also be filed or recorded in such other places as the Trustee deem appropriate, but failure to file for record the Declaration or any articles of amendment hereto in any office other than in the State of Maryland shall not affect or impair the validity or effectiveness of the Declaration or any amendment hereto. A restated Declaration shall, upon filing, be conclusive evidence of all amendments contained therein and may thereafter be referred to in lieu of the original Declaration and the various articles of amendments thereto.

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THIRD: The foregoing amendment and restatement of the Declaration was duly advised by the Trustees of the Trust and approved by the unitholders of the Trust.

FOURTH:

(a) Immediately prior to the amendment and restatement of the Declaration, the Trust had authorized 200,000,000 shares of beneficial interest, consisting of 100,000,000 common shares of beneficial interest, par value $0.01 per share, and 100,000,000 preferred shares of beneficial interest, par value $0.01 per share.

(b) Immediately following the amendment and restatement of the Declaration, the Trust had authorized 400,000,000 shares of beneficial interest, par value $0.01 per share.

(c) Prior to the amendment and restatement of the Declaration, the aggregate par value of all classes of units of beneficial interest was $2,000,000. Following the amendment and restatement of the Declaration, the aggregate par value of all classes of units of beneficial interest was $4,000,000.

FIFTH: The current address of the principal office of the Trust is Two North Riverside Plaza, Suite 2100, Chicago, IL 60606.

SIXTH: The name and address of the Trust’s current resident agent is CSC Lawyers Incorporating Service Company, 7 St. Paul Street, Suite 820, Baltimore, Maryland 21202.

SEVENTH: The current number of Trustees is one (1), and the name of the Trustee currently in office is Equity Commonwealth.

EIGHTH: These Articles of Amendment and Restatement of Declaration of Trust shall become effective immediately upon filing and acceptance for record.

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IN WITNESS WHEREOF, as of this 10th day of November, 2016, the Trust has caused these Articles of Amendment and Restatement of Declaration of Trust to be executed and acknowledged in its name and on its behalf by its President and Chief Executive Officer and attested to by its Executive Vice President, General Counsel and Secretary; and the President and Chief Executive Officer acknowledges that these Articles of Amendment and Restatement of Declaration of Trust are the act of the Trust, and the President and Chief Executive Officer further acknowledges that, as to all matters or facts set forth herein that are required to be verified under oath, such matters and facts are true in all material respects to the best of his knowledge, information and belief, and that this statement is made under the penalties for perjury.

	EQC OPERATING TRUST


	By:	/s/ Adam Markman
		Adam Markman
		Executive Vice President, Chief Financial Officer and Treasurer

ATTEST:

By:	/s/ Orrin Shifrin
	Orrin Shifrin
	Executive Vice President, General
	Counsel and Secretary

ANNEX A

DECLARATION OF TRUST OF

EQC OPERATING TRUST

ADDITIONAL TERMS

TABLE OF CONTENTS

		Page

ARTICLE I DEFINED TERMS		A-1

ARTICLE II TERM; PURPOSE		A-14

Section 2.1	Term	A-14
Section 2.2	Purpose and Business	A-14
Section 2.3	Powers	A-14

ARTICLE III CAPITAL CONTRIBUTIONS AND ISSUANCES OF UNITS		A-15

Section 3.1	Capital Contributions of the Unitholders	A-15
Section 3.2	Issuance of Units	A-15
Section 3.3	No Preemptive Rights	A-16
Section 3.4	Other Contribution Provisions	A-16
Section 3.5	No Interest on Capital	A-17
Section 3.6	LTIP Units	A-17
Section 3.7	Conversion of LTIP Units	A-19

ARTICLE IV DISTRIBUTIONS		A-22

Section 4.1	Requirement and Characterization of Distributions	A-22
Section 4.2	Distributions in Kind	A-25
Section 4.3	Amounts Withheld	A-25
Section 4.4	Distributions upon Liquidation	A-25
Section 4.5	Revisions to Reflect Issuance of Units	A-25

ARTICLE V ALLOCATIONS		A-26

Section 5.1	Allocations for Capital Account Purposes	A-26
Section 5.2	Revisions to Allocations to Reflect Issuance of Units	A-29

ARTICLE VI MANAGEMENT AND OPERATIONS OF BUSINESS		A-29

Section 6.1	Management	A-29
Section 6.2	Title to Company Assets	A-34
Section 6.3	Reimbursement of the Trustee	A-34

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Section 6.4	Outside Activities of the Trustee; Relationship of Shares to Units; Funding Debt	A-37
Section 6.5	Transactions with Affiliates	A-40
Section 6.6	Liability of the Trustee	A-40
Section 6.7	Other Matters Concerning the Trustee	A-41
Section 6.8	Reliance by Third Parties	A-42
Section 6.9	Loans by Third Parties	A-42

ARTICLE VII RIGHTS AND OBLIGATIONS OF UNITHOLDERS		A-43

Section 7.1	Limitation of Liability	A-43
Section 7.2	Management of Business	A-43
Section 7.3	Outside Activities of Unitholders	A-43
Section 7.4	Return of Capital	A-43
Section 7.5	Rights of Unitholders Relating to the Company	A-44
Section 7.6	Redemption Right	A-44

ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS		A-47

Section 8.1	Records and Accounting	A-47
Section 8.2	Fiscal Year	A-47
Section 8.3	Reports	A-48

ARTICLE IX TAX MATTERS		A-48

Section 9.1	Preparation of Tax Returns	A-48
Section 9.2	Tax Elections	A-48
Section 9.3	Tax Unitholder and Company Tax Audit Matters	A-49
Section 9.4	Organizational Expenses	A-51
Section 9.5	Withholding	A-51

ARTICLE X TRANSFERS AND WITHDRAWALS		A-52

Section 10.1	Transfer	A-52
Section 10.2	Transfers and Withdrawals by Trustee	A-53
Section 10.3	Transfers by Unitholders	A-53
Section 10.4	Substituted Unitholders	A-55
Section 10.5	Assignees	A-55
Section 10.6	General Provisions	A-56

ARTICLE XI ADMISSION OF UNITHOLDERS		A-58

Section 11.1	Admission of a Successor Trustee	A-58
Section 11.2	Admission of Additional Unitholders	A-58
Section 11.3	Amendment of Agreement and Declaration	A-59

ARTICLE XII DISSOLUTION AND LIQUIDATION		A-59

Section 12.1	Dissolution	A-59
Section 12.2	Winding Up	A-59

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Section 12.3	Compliance with Timing Requirements of Regulations; Restoration of Deficit Capital Accounts	A-60
Section 12.4	Rights of Unitholders	A-62
Section 12.5	Notice of Dissolution	A-62
Section 12.6	Cancellation of Declaration	A-63
Section 12.7	Reasonable Time for Winding Up	A-63
Section 12.8	Waiver of Partition	A-63
Section 12.9	Liability of Liquidator	A-63

ARTICLE XIII AMENDMENT OF DECLARATION; MEETINGS		A-63

Section 13.1	Amendments	A-63
Section 13.2	Meetings of the Unitholders	A-64

ARTICLE XIV GENERAL PROVISIONS		A-66

Section 14.1	Addresses and Notice	A-66
Section 14.2	Titles and Captions	A-66
Section 14.3	Pronouns and Plurals	A-66
Section 14.4	Further Action	A-66
Section 14.5	Binding Effect	A-66
Section 14.6	Creditors	A-66
Section 14.7	Waiver	A-66
Section 14.8	Counterparts	A-67
Section 14.9	Applicable Law	A-67
Section 14.10	Invalidity of Provisions	A-67
Section 14.11	Power of Attorney	A-67
Section 14.12	Entire Agreement	A-68
Section 14.13	No Rights as Shareholders	A-68
Section 14.14	Limitation to Preserve REIT Status	A-68

List of Exhibits and Attachments

Exhibit A	Form of Unitholder Registry
Exhibit B	Capital Account Maintenance
Exhibit C	Special Allocation Rules
Exhibit D	Notice of Redemption
Exhibit E	Form of DRO Registry
Exhibit F	Form of Voluntary Conversion Notice

Attachment A	Series D Preferred Units

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ANNEX A

DECLARATION OF TRUST OF

EQC OPERATING TRUST

ADDITIONAL TERMS

THIS ANNEX A (as may be further amended, supplemented or restated from time to time, the “ Agreement ”) constitutes a part of to the Declaration of Trust (the “ Declaration ”) of EQC Operating Trust (the “ Company ”) and is incorporated by reference therein and deemed to be a part thereof as if, and with the same effect as if, such terms and provisions were directly stated therein. This Agreement constitutes not only an integral part of the Declaration but also a separate agreement among all of the holders of Units (as defined herein) of the Company, each of whom is identified on the books and records of the Company. As of the date of the Declaration, Equity Commonwealth, a Maryland real estate investment trust, is the sole trustee and sole Unitholder of the Company. If, following the date of the Declaration, another person or persons becomes a trustee of the Company, this Agreement shall be amended to reflect such additional trustee or trustees. Each holder of Units whose name is set forth on the Unitholder Registry (as hereinafter defined) as a Unitholder shall become a party to this agreement without further action required on the part of any such holder.

The Company initially was treated for federal income tax purposes as a corporation that was a “qualified REIT subsidiary” (within the meaning of Section 856(i) of the Code) of the Trustee. Effective on July 1, 2016, the Company elected pursuant to Treasury Regulation Section 301.7701-3(c) to be treated for federal income tax purposes as a disregarded entity not separate from its owner (and not as an “association taxable as a corporation”). Upon the filing and acceptance for record of the Declaration with the Maryland State Department of Assessments and Taxation and the admission of a second Unitholder for federal income tax purposes, the Company will become treated for federal income tax purposes as a partnership. The provisions in this Annex A relating to Capital Accounts (as defined herein) and allocations of Net Income and Net Loss (each as defined herein) (and items of income, gain, loss, and deduction) for federal income tax purposes are intended to be consistent with the provisions of the Code (as defined herein) and the Treasury Regulations (as defined herein) applicable to entities that are characterized as “partnerships” for federal income tax purposes.

ARTICLE I
DEFINED TERMS

The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.

“ 2015 Budget Act Partnership Audit Rules ” has the meaning set forth in Section 9.3.A.

“ Additional Unitholder ” means a Person admitted to the Company as a Unitholder pursuant to Section 11.2 hereof and who is shown as a Unitholder on Unitholder Registry.

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“ Adjusted Capital Account ” means the Capital Account maintained for each Unitholder as of the end of each Fiscal Year or other period (i) increased by any amounts which such Unitholder is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) and (ii) decreased by the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

“ Adjusted Capital Account Deficit ” means, with respect to any Unitholder, the deficit balance, if any, in such Unitholder’s Adjusted Capital Account as of the end of the relevant Fiscal Year.

“ Adjusted Property ” means any property the Carrying Value of which has been adjusted pursuant to Exhibit B .

“ Adjustment Event ” means an event in which (i) the Company makes a distribution of Units on all outstanding Class A Units, (ii) the Company subdivides the outstanding Class A Units into a greater number of Class A Units or combines the outstanding Class A Units into a lesser number of Class A Units, (iii) the Company issues any Units in exchange for its outstanding Class A Units by way of a reclassification or recapitalization of its Class A Units, or (iv) a similar transaction involving Class A Units where consideration is not received in connection with such transaction. For the avoidance of doubt, the following shall not be Adjustment Event: (a) the issuance of Units in a financing, reorganization, acquisition or similar business transaction; (b) the issuance of Units pursuant to the Equity Incentive Plan or other compensation plan, or under a distribution reinvestment plan; or (c) the issuance of any Units to the Trustee or other Persons in respect of a Capital Contribution to the Company.

“ Affiliate ” means, with respect to any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person, or (ii) any officer, director, general partner, Unitholder or trustee of such Person or any Person referred to in the foregoing clause (i). For purposes of this definition, “control,” when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Aggregate DRO Amount ” means the aggregate balances of the DRO Amounts, if any, of all DRO Unitholders, if any, as determined on the date in question.

“ Agreed Value ” means (i) in the case of any Contributed Property, the Section 704(c) Value of such property as of the time of its contribution to the Company, reduced by any liabilities either assumed by the Company upon such contribution or to which such property is subject when contributed as determined under Section 752 of the Code and the regulations thereunder; and (ii) in the case of any property distributed to a Unitholder by the Company, the Company’s Carrying Value of such property at the time such property is distributed, reduced by any indebtedness either assumed by such Unitholder upon such distribution or to which such property is subject at the time of distribution.

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“ Agreement ” has the meaning set forth in the Preamble.

“ Applicable Special LTIP Unit Distribution Amount ” has the meaning set forth in Section 4.1.D .

“ Assignee ” means a Person to whom one or more Units have been transferred in a manner permitted under this Agreement, but who has not become a Substituted Unitholder, and who has the rights set forth in Section 10.5 .

“ Available Cash ” means, with respect to any period for which such calculation is being made, cash of the Company, regardless of source (including Capital Contributions and loans to the Company), that the Trustee, in its sole and absolute discretion, determines is appropriate for distribution to the Unitholders.

“ Award Agreement ” means each or any, as the context implies, agreement or instrument entered into by a holder of LTIP Units upon acceptance of an award of LTIP Units under an Equity Incentive Plan.

“ Book-Tax Disparities ” means, with respect to any item of Contributed Property or Adjusted Property, as of the date of any determination, the difference between the Carrying Value of such Contributed Property or Adjusted Property and the adjusted basis thereof for federal income tax purposes as of such date. A Unitholder’s share of the Company’s Book-Tax Disparities in all of its Contributed Property and Adjusted Property will be reflected by the difference between such Unitholder’s Capital Account balance as maintained pursuant to Exhibit B and the hypothetical balance of such Unitholder’s Capital Account computed as if it had been maintained strictly in accordance with federal income tax accounting principles.

“ Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

“ Capital Account ” means the Capital Account maintained for a Unitholder pursuant to Exhibit B . The initial Capital Account balance for each Unitholder who is a Unitholder on the date hereof shall be the amount set forth opposite such Unitholder’s name on the Unitholder Registry.

“ Capital Account Limitation ” has the meaning set forth in Section 3.7.B .

“ Capital Contribution ” means, with respect to any Unitholder, any cash and the Agreed Value of Contributed Property which such Unitholder contributes or is deemed to contribute to the Company.

“ Carrying Value ” means (i) with respect to a Contributed Property or Adjusted Property, the Section 704(c) Value of such property reduced (but not below zero) by all Depreciation with respect to such Contributed Property or Adjusted Property, as the case may be, charged to the Unitholders’ Capital Accounts and (ii) with respect to any other Company property, the adjusted basis of such property for federal income tax purposes, all as of the time of determination. The Carrying Value of any property shall be adjusted from time to time in

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accordance with Exhibit B , and to reflect changes, additions (including capital improvements thereto) or other adjustments to the Carrying Value for dispositions and acquisitions of Company properties, as deemed appropriate by the Trustee.

“ Cash Amount ” means an amount of cash equal to the Value on the Valuation Date of the Shares Amount.

“ Class A Unit ” means any Unit that is not specifically designated by the Trustee as being of another specified class of Units.

“ Class A Unit Economic Balance ” has the meaning set forth in Section 5.1.E .

“ Class A Unit Transaction ” means any transaction or series of related transactions (including without limitation any Extraordinary Transaction, but excluding any transaction which constitutes an Adjustment Event) as a result of which Class A Units shall be exchanged for or converted into the right, or the holders of such Class A Units shall otherwise be entitled, to receive cash, securities or other property or any combination thereof.

“ Code ” means the Internal Revenue Code of 1986, as amended and in effect from time to time, as interpreted by the applicable regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law.

“ Company ” has the meaning set forth in the Preamble.

“ Company Minimum Gain ” has the meaning set forth in Regulations Section 1.704-2(b)(2), and the amount of Company Minimum Gain, as well as any net increase or decrease in Company Minimum Gain, for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(d) for “partnership minimum gain.”

“ Company Record Date ” means the record date established by the Trustee either (i) for the distribution of Available Cash pursuant to Section 4.1.A , which record date shall be the same as the record date established by the Trustee for a distribution to its shareholders of some or all of its portion of such distribution, or (ii) if applicable, for determining the Unitholders entitled to vote on or consent to any proposed action for which the consent or approval of the Unitholders is sought pursuant to Section 13.2 .

“ Consent ” means the consent or approval of a proposed action by a Unitholder given in accordance with Article XIII .

“ Consent of the Non-Trustee Unitholders ” means the Consent of the Unitholders (excluding for this purpose, to the extent any of the following holds Class A Units, (i) the Trustee, (ii) any Person of which the Trustee directly or indirectly owns or controls more than fifty percent (50%) of the voting interests and (iii) any Person directly or indirectly owning or controlling more than fifty percent (50%) of the outstanding voting interests of the Trustee) holding Class A Units representing more than fifty percent (50%) of the Percentage Interest of the Class A Units of all Unitholders which are not excluded pursuant to (i), (ii) and (iii) above.

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“ Constituent Person ” has the meaning set forth in Section 3.7.F .

“ Contributed Property ” means each property or other asset contributed to the Company but excluding cash contributed or deemed contributed to the Company. Once the Carrying Value of a Contributed Property is adjusted pursuant to Exhibit B , such property shall no longer constitute a Contributed Property for purposes of Exhibit B , but shall be deemed an Adjusted Property for such purposes.

“ Conversion Date ” has the meaning set forth in Section 3.7.B .

“ Conversion Notice ” has the meaning set forth in Section 3.7.B .

“ Conversion Factor ” means 1.0; provided , however , that, if the Trustee (i) declares or pays a dividend on its outstanding Shares in Shares or makes a distribution to all holders of its outstanding Shares in Shares and does not make a corresponding distribution on Class A Units in Class A Units, (ii) subdivides its outstanding Shares, or (iii) combines its outstanding Shares into a smaller number of Shares, the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the numerator of which shall be the number of Shares issued and outstanding on the record date for such dividend, distribution, subdivision or combination (assuming for such purposes that such dividend, distribution, subdivision or combination has occurred as of such time) and the denominator of which shall be the actual number of Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, subdivision or combination; and provided further that if an entity shall cease to be the Trustee (the “ Predecessor Entity ”) and another entity shall become the Trustee (the “ Successor Entity ”), the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the numerator of which is the Value of one Share of the Predecessor Entity, determined as of the date when the Successor Entity becomes the Trustee, and the denominator of which is the Value of one Share of the Successor Entity, determined as of that same date. For purposes of the second proviso in the preceding sentence, if any shareholders of the Predecessor Entity will receive consideration in connection with the transaction in which the Successor Entity becomes the Trustee, the numerator in the fraction described above for determining the adjustment to the Conversion Factor (that is, the Value of one Share of the Predecessor Entity) shall be the sum of the greatest amount of cash and the fair market value (as determined in good faith by the Trustee) of any securities and other consideration that the holder of one Share in the Predecessor Entity could have received in such transaction (determined without regard to any provisions governing fractional shares). Any adjustment to the Conversion Factor shall become effective immediately after the effective date of the event retroactive to the record date, if any, for the event giving rise thereto, it being intended that (x) adjustments to the Conversion Factor are to be made to avoid unintended dilution or anti-dilution as a result of transactions in which Shares are issued, redeemed or exchanged without a corresponding issuance, redemption or exchange of Units and (y) if a Specified Redemption Date shall fall between the record date and the effective date of any event of the type described above, that the Conversion Factor applicable to such redemption shall be adjusted to take into account such event.

“ Conversion Notice ” has the meaning set forth in Section 3.7.B .

“ Convertible Funding Debt ” has the meaning set forth in Section 6.4.E .

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“ Current Partnership Audit Rules ” has the meaning set forth in Section 9.3.A .

“ Declaration ” has the meaning set forth in the Preamble.

“ Debt ” means, as to any Person, as of any date of determination, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, (ii) all amounts owed by such Person to banks or other Persons in respect of reimbursement obligations under letters of credit, surety bonds and other similar instruments guaranteeing payment or other performance of obligations by such Person, (iii) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment thereof, and (iv) obligations of such Person incurred in connection with entering into a lease which, in accordance with generally accepted accounting principles, should be capitalized.

“ Depreciation ” means, for each Fiscal Year or other period, an amount equal to the U.S. federal income tax depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Carrying Value of an asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount as calculated in accordance with Regulations Section 1.704-3; provided , however , that if the U.S. federal income tax depreciation, amortization, or other cost recovery deduction for such year is zero and if Depreciation is calculated in accordance with Regulations Section 1.704-3(b), Depreciation shall be determined with reference to such beginning Carrying Value using any reasonable method selected by the Trustee.

“ Distribution Measurement Date ” has the meaning set forth in Section 4.1.D .

“ Distribution Participation Date ” has the meaning set forth in Section 4.1.C .

“ Distribution Payment Date ” has the meaning set forth in Section 4.1.C .

“ DRO ” means a deficit restoration obligation , which for a Unitholder is the amount such Unitholder shall be obligated to contribute to the Company from time to time as set forth in Section 12.3 .

“ DRO Amount ” means the amount specified in the DRO Registry with respect to any DRO Unitholder, as such DRO Registry may be amended from time to time.

“ DRO Unitholder ” means a Unitholder who has agreed in writing to be a DRO Unitholder and has agreed and is obligated to make certain contributions, not in excess of such DRO Unitholder’s DRO Amount, to the Company with respect to any deficit balance in such Unitholder’s Capital Account upon the occurrence of certain events. A DRO Unitholder who is obligated to make any such contribution only upon liquidation of the Company shall be designated in the DRO Registry as a “Part I DRO Unitholder” and a DRO Unitholder who is obligated to make any such contribution to the Company either upon liquidation of the Company

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or upon liquidation of such DRO Unitholder’s Units shall be designated in the DRO Registry as a “Part II DRO Unitholder.”

“ DRO Registry ” means the DRO Registry maintained by the Trustee in the books and records of the Company containing substantially the same information as would be necessary to complete the Form of DRO Registry attached hereto as Exhibit E .

“ Economic Capital Account Balances ” has the meaning set forth in Section 5.1.E .

“ Equity Incentive Plan ” means any equity incentive or compensation plan hereafter adopted by the Company or the Trustee, including, without limitation, the Equity Commonwealth 2015 Equity Incentive Plan, as amended from time to time.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Extraordinary Transaction ” has the meaning set forth in Section 10.2.B .

“ Fiscal Quarter ” means any three calendar month quarter of any Fiscal Year of the Company, which quarters shall end on March 31, June 30, September 30 and December 31 of each Fiscal Year.

“ Fiscal Year ” means the fiscal year of the Company, which shall be the calendar year as provided in Section 8.2 .

“ Forced Conversion ” has the meaning set forth in Section 3.7.C .

“ Forced Conversion Notice ” has the meaning set forth in Section 3.7.C .

“ Funding Debt ” means any Debt incurred for the purpose of providing funds to the Company by or on behalf of the Trustee or any wholly owned subsidiary of the Trustee.

“ Immediate Family ” means, with respect to any natural Person, such natural Person’s spouse, parents, descendants, nephews, nieces, brothers, and sisters.

“ Incapacity ” or “ Incapacitated ” means, (i) as to any individual who is a Unitholder, death, total physical disability or entry by a court of competent jurisdiction adjudicating such Unitholder incompetent to manage his or her Person or estate, (ii) as to any corporation which is a Unitholder, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter, (iii) as to any partnership or limited liability company which is a Unitholder, the dissolution and commencement of winding up of the partnership or limited liability company, (iv) as to any estate which is a Unitholder, the distribution by the fiduciary of the estate’s entire interest in the Company, (v) as to any trustee of a trust which is a Unitholder, the termination of the trust (but not the substitution of a new trustee) or (vi) as to any Unitholder, the bankruptcy of such Unitholder. For purposes of this definition, bankruptcy of a Unitholder shall be deemed to have occurred when (a) the Unitholder commences a voluntary proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect, (b) the Unitholder is adjudged as bankrupt or insolvent, or a final and nonappealable order for relief under any bankruptcy, insolvency or similar law now

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or hereafter in effect has been entered against the Unitholder, (c) the Unitholder executes and delivers a general assignment for the benefit of the Unitholder’s creditors, (d) the Unitholder files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Unitholder in any proceeding of the nature described in clause (b) above, (e) the Unitholder seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator for the Unitholder or for all or any substantial part of the Unitholder’s properties, (f) any proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect has not been dismissed within one hundred twenty (120) days after the commencement thereof, (g) the appointment without the Unitholder’s consent or acquiescence of a trustee, receiver or liquidator has not been vacated or stayed within ninety (90) days of such appointment or (h) an appointment referred to in clause (g) is not vacated within ninety (90) days after the expiration of any such stay.

“ Indemnitee ” means (i) any Person made a party to a proceeding by reason of its status as (A) the Trustee, (C) a Unitholder, or (D) any direct or indirect trustee, manager, director, officer, employee, Unitholder, partner or shareholder of the Company, the Trustee or a Unitholder, and (ii) such other Persons (including Affiliates of the Trustee, a Unitholder or the Company) as the Trustee may designate from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.

“ IRS ” means the Internal Revenue Service, which administers the internal revenue laws of the United States.

“ Liquidating Event ” has the meaning set forth in Section 12.1 .

“ Liquidating Gains ” has the meaning set forth in Section 5.1.E .

“ Liquidator ” has the meaning set forth in Section 12.2.A .

“ LTIP Distribution Amount ” has the meaning set forth in Section 4.1.C .

“ LTIP Unit ” means a Unit that is designated as an LTIP Unit and that has the rights, preferences and other privileges designated in Sections 3.6 and 3.7 and elsewhere in this Agreement in respect of holders of LTIP Units. The allocation of LTIP Units among the Unitholders shall be set forth on the Unitholder Registry.

“ LTIP Unit Sharing Percentage ” means, for an LTIP Unit, the percentage that is specified as the LTIP Unit Sharing Percentage in the Award Agreement or other documentation pursuant to which such LTIP Unit is issued or, if no such percentage is specified, 10%.

“ LTIP Unitholder ” means a Unitholder that holds LTIP Units.

“ Maryland REIT Law ” means Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland.

“ Net Income ” means, for any taxable period, the excess, if any, of the Company’s items of income and gain for such taxable period over the Company’s items of loss and deduction for

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such taxable period. The items included in the calculation of Net Income shall be determined in accordance with Exhibit B . If an item of income, gain, loss or deduction that has been included in the initial computation of Net Income is subjected to the special allocation rules in Exhibit C , Net Income or the resulting Net Loss, whichever the case may be, shall be recomputed without regard to such item.

“ Net Loss ” means, for any taxable period, the excess, if any, of the Company’s items of loss and deduction for such taxable period over the Company’s items of income and gain for such taxable period. The items included in the calculation of Net Loss shall be determined in accordance with Exhibit B . If an item of income, gain, loss or deduction that has been included in the initial computation of Net Loss is subjected to the special allocation rules in Exhibit C , Net Loss or the resulting Net Income, whichever the case may be, shall be recomputed without regard to such item.

“ New Securities ” means (i) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase Shares, excluding grants under the Equity Incentive Plan, or (ii) any Debt issued by the Trustee that provides any of the rights described in clause (i).

“ Non-Trustee ” means a Unitholder in the Company that is not a Trustee in the Company.

“ Non-Trustee Interest ” means a Units of a Unitholder in the Company not designated as a Trustee Interest representing a fractional part of the Units of all Unitholders and includes any and all benefits to which the holder of such a Units may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Non-Trustee Interest may be expressed as a number of Units.

“ Nonrecourse Built-in Gain ” means, with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or negative pledge securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Unitholders pursuant to Section 2.B of Exhibit C if such properties were disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.

“ Nonrecourse Deductions ” has the meaning set forth in Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(c).

“ Nonrecourse Liability ” has the meaning set forth in Regulations Section 1.752-1(a)(2).

“ Notice of Redemption ” means a Notice of Redemption substantially in the form of Exhibit D .

“ Operating Entity ” has the meaning set forth in Section 7.4.F .

“ Parent Entity ” has the meaning set forth in Section 6.3.F .

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“ Percentage Interest ” means, as to a Unitholder holding a class of Units, its interest in such class, determined by dividing the Units of such class owned by such Unitholder by the total number of Units of such class then outstanding.

“ Performance Vested LTIP Unit ” means an LTIP Unit that, pursuant to the Award Agreement granting such LTIP Unit, is subject performance-based vesting.

“ Person ” means an individual, partnership, corporation, limited liability company, association, trust, joint venture, unincorporated organization and any government, governmental department or agency or political subdivision thereof.

“ Predecessor Entity ” has the meaning set forth in the definition of “ Conversion Factor ” herein.

“ Publicly Traded ” means listed or admitted to trading on the New York Stock Exchange, the NASDAQ Stock Market, any nationally or internationally recognized stock exchange or any successor to any of the foregoing.

“ Qualified Assets ” has the meaning set forth in Section 6.4.A.

“ Qualified REIT Subsidiary ” means any Subsidiary of the Trustee that is a “qualified REIT subsidiary” within the meaning of Section 856(i) of the Code.

“ Recapture Income ” means any gain recognized by the Company (computed without regard to any adjustment pursuant to Section 754 of the Code) upon the disposition of any property or asset of the Company, which gain is characterized either as ordinary income or as “unrecaptured Section 1250 gain” (as defined in Section 1(h)(6) of the Code) because it represents the recapture of depreciation deductions previously taken with respect to such property or asset.

“ Recourse Liabilities ” means the amount of liabilities owed by the Company (other than Nonrecourse Liabilities and liabilities to which Unitholder Nonrecourse Deductions are attributable in accordance with Section 1.704-(2)(i) of the Regulations).

“ Redeeming Unitholder ” has the meaning set forth in Section 7.6.A .

“ Redemption Amount ” means either the Cash Amount or the Shares Amount, as determined by the Trustee, in its sole and absolute discretion; provided, however, that if the Shares are not Publicly Traded at the time a Redeeming Unitholder exercises its Redemption Right, the Redemption Amount shall be paid only in the form of the Cash Amount unless the Redeeming Unitholder, in its sole and absolute discretion, consents to payment of the Redemption Amount in the form of the Shares Amount. A Redeeming Unitholder shall have no right, without the Trustee’s consent, in its sole and absolute discretion, to receive the Redemption Amount in the form of the Shares Amount.

“ Redemption Right ” has the meaning set forth in Section 7.6.A .

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“ Regulations ” means the Treasury Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“ REIT ” means an entity that qualifies as a real estate investment trust under the Code.

“ REIT Requirements ” has the meaning set forth in Section 4.1.A .

“ Residual Gain ” or “ Residual Loss ” means any item of gain or loss, as the case may be, of the Company recognized for U.S. federal income tax purposes resulting from a sale, exchange or other disposition of Contributed Property or Adjusted Property, to the extent such item of gain or loss is not allocated pursuant to Section 2.B.1(a ) or 2.B.2(a) of Exhibit C to eliminate Book-Tax Disparities.

“ Safe Harbor ” has the meaning set forth in Section 10.6.F .

“ Section 704(c) Value ” of any Contributed Property means the fair market value of such property at the time of contribution as determined by the Trustee using such reasonable method of valuation as it may adopt; provided , however , subject to Exhibit C , the Trustee shall, in its sole and absolute discretion, use such method as it deems reasonable and appropriate to allocate the aggregate of the Section 704(c) Value of Contributed Properties in a single or integrated transaction among each separate property on a basis proportional to its fair market values.

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

“ Series D Preferred Units ” means the series of Units designated as Series D Cumulative Convertible Preferred Units, with the designations, preferences and other rights set forth in Attachment A hereto.

“ Share ” means a common share of beneficial interest (or other comparable equity interest) of the Trustee. Shares may be issued in one or more classes or series in accordance with the terms of the organizational documents of the Trustee. Shares issued in lieu of the Cash Amount may be either registered or unregistered Shares at the option of the Trustee. If there is more than one class or series of Shares, the term “ Shares ” shall, as the context requires, be deemed to refer to the class or series of Shares that corresponds to the class or series of Units for which the reference to Shares is made. When used with reference to Class A Units, the term “ Shares ” refers to the common shares of beneficial interest (or other comparable equity interest) of the Trustee.

“ Shares Amount ” means a number of Shares equal to the product of the number of Units offered for redemption by a Redeeming Unitholder times the Conversion Factor; provided , however , that if the Trustee issues to holders of Shares securities, rights, options, warrants or convertible or exchangeable securities entitling such holders to subscribe for or purchase Shares or any other securities or property (collectively, the “ rights ”), then the Shares Amount shall also include such rights that a holder of that number of Shares would be entitled to receive unless the Company issues corresponding rights to holders of Units.

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“ Special LTIP Unit Distribution ” has the meaning set forth in Section 4.1.D .

“ Specified Redemption Date ” means the twentieth (20th) Business Day after the Valuation Date or such shorter period as the Trustee, in its sole and absolute discretion, may determine; provided , however , that, if the Shares are not Publicly Traded, the Specified Redemption Date means the thirtieth (30th) Business Day after receipt by the Trustee of a Notice of Redemption.

“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, trust, partnership or joint venture, or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.

“ Substituted Unitholder ” means a Person who is admitted as a Unitholder to the Company pursuant to Section 10.4 and who is shown as a Unitholder in the Unitholder Registry.

“ Successor Entity ” has the meaning set forth in the definition of “ Conversion Factor ” herein.

“ Target Capital Account Balance ” has the meaning set forth in Section 5.1.E .

“ Tax Unitholder ” has the meaning set forth in Section 9.3.A .

“ Tender Offer ” has the meaning set forth in Section 10.2.B .

“ Time Vested LTIP Unit ” means an LTIP Unit that, pursuant to the Award Agreement granting such LTIP Unit, is subject time-based vesting.

“ Trustee ” means Equity Commonwealth, a Maryland real estate investment trust, or its successor or permitted assignee, as Trustee of the Company.

“ Trustee Interest ” means an interest in the Company held by the Trustee that is not designated a Non-Trustee Interest. A Trustee Interest may be expressed as a number of Units.

“ Trustee Payment ” has the meaning set forth in Section 14.14 .

“ Units ” means a Trustee Interest or a Non-Trustee Interest or LTIP Units (to the extent the Trustee has awarded LTIP Units), expressed as a number of units, issued pursuant to Sections 3.1 and 3.2 of this Agreement, including Class A Units, Series D Preferred Units, LTIP Units and any other classes or series of Units established after the date hereof, and includes any and all benefits to which the holder of such Units may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. The number of Units outstanding and the Percentage Interests in the Company represented by such Units are set forth in the Unitholder Registry.

“ Unitholder(s) ” means the Trustee and any other Person that is named as a Unitholder in the Unitholder Registry or any Substituted Unitholder or Additional Unitholder, in such Person’s capacity as a Unitholder in the Company.

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“ Unitholder Minimum Gain ” means an amount, with respect to each Unitholder Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Unitholder Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i)(3) for “partner minimum gain.”

“ Unitholder Nonrecourse Debt ” has the meaning set forth in Regulations Section 1.704-2(b)(4) for “partner nonrecourse debt.”

“ Unitholder Nonrecourse Deductions ” has the meaning set forth in Regulations Section 1.704-2(i), and the amount of Unitholder Nonrecourse Deductions with respect to Unitholder Nonrecourse Debt for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(i)(2) for “partner nonrecourse deductions.”

“ Unitholder Registry ” means the Unitholder Registry maintained by the Trustee in the books and records of the Company, which contains substantially the same information as would be necessary to complete the form of the Unitholder Registry attached hereto as Exhibit A .

“ Unrealized Gain ” attributable to any item of Company property means, as of any date of determination, the excess, if any, of (i) the fair market value of such property (as determined under Exhibit B ) as of such date, over (ii) the Carrying Value of such property (prior to any adjustment to be made pursuant to Exhibit B ) as of such date.

“ Unrealized Loss ” attributable to any item of Company property means, as of any date of determination, the excess, if any, of (i) the Carrying Value of such property (prior to any adjustment to be made pursuant to Exhibit B ) as of such date, over (ii) the fair market value of such property (as determined under Exhibit B ) as of such date.

“ Valuation Date ” means the date of receipt by the Trustee of a Notice of Redemption or, if such date is not a Business Day, the first Business Day thereafter.

“ Value ” means, with respect to one Share of a class of outstanding Shares of the Trustee that are Publicly Traded, the average of the daily market price for the ten consecutive trading days immediately preceding the date with respect to which value must be determined. The market price for each such trading day shall be the closing price, regular way, on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day. If the outstanding Shares of the Trustee are Publicly Traded and the Shares Amount includes, in addition to the Shares, rights or interests that a holder of Shares has received or would be entitled to receive, then the Value of such rights shall be determined by the Trustee acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate. If the Shares of the Trustee are not Publicly Traded, the Value of the Shares Amount per Unit tendered for redemption (which will be the Cash Amount per Unit offered for redemption payable pursuant to Section 7.6.A ) means the amount that a holder of one Unit would receive if each of the assets of the Company were to be sold for its fair market value on the Specified Redemption Date, the Company were to pay all of its outstanding liabilities, and the remaining proceeds were to be distributed to the Unitholders in accordance with the terms of this Agreement. Such Value shall be determined by the Trustee, acting in good faith and based upon a commercially reasonable estimate of the amount that would be realized

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by the Company if each asset of the Company (and each asset of each partnership, limited liability company, trust, joint venture or other entity in which the Company owns a direct or indirect interest) were sold to an unrelated purchaser in an arms’ length transaction where neither the purchaser nor the seller were under economic compulsion to enter into the transaction (without regard to any discount in value as a result of the Company’s minority interest in any property or any illiquidity of the Company’s interest in any property).

“ Vested LTIP Units ” means LTIP Units that have vested under the terms of an Award Agreement or Equity Incentive Plan applicable to such Units or pursuant to any other agreement between the LTIP Unitholder and the Company.

“ Voluntary Conversion Right ” has the meaning set forth in Section 3.7.B .

ARTICLE II
TERM; PURPOSE

Section 2.1 Term

The term of the Company commenced on September 12, 1996, and shall continue until dissolved pursuant to the provisions of Article XII or as otherwise provided by law.

Section 2.2 Purpose and Business

The purpose and nature of the business to be conducted by the Company is (i) to conduct any business that may be lawfully conducted by a real estate investment trust organized pursuant to the Act; (ii) to enter into any corporation, partnership, joint venture, trust, limited liability company or other similar arrangement to engage in any of the foregoing or the ownership of interests in any entity engaged, directly or indirectly, in any of the foregoing; and (iii) to do anything necessary or incidental to the foregoing; provided , however , that any business shall be limited to and conducted in such a manner as to permit the Trustee and, if different, the Trustee, at all times to be classified as a REIT, unless the Trustee in its sole and absolute discretion has chosen to cease to qualify as a REIT or has chosen not to attempt to qualify as a REIT for any reason or reasons whether or not related to the business conducted by the Company. In connection with the foregoing, and without limiting the Trustee’s right, in its sole and absolute discretion, to cease qualifying as a REIT, the Unitholders acknowledge that the status of the Trustee as a REIT inures to the benefit of all the Unitholders and not solely to the Trustee or its Affiliates, Unitholders and shareholders.

Section 2.3 Powers

The Company shall have all of the powers granted to real estate investment trusts by Title 8 and all other powers set forth in the Declaration that are not inconsistent with law and are appropriate to promote and attain the purposes set forth in the Declaration. The Company is empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Company, including, without limitation, full power and authority, directly or through its ownership interest in other entities, to enter into,

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perform and carry out contracts of any kind, borrow money and issue evidences of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other lien, acquire, own, manage, improve and develop real property, and lease, sell, transfer and dispose of real property; provided , however , that the Company shall not take, or shall refrain from taking, any action which, in the judgment of the Trustee, in its sole and absolute discretion, (i) could adversely affect the ability of the Trustee to continue to qualify as a REIT (if such entity has chosen to attempt to qualify as a REIT), (ii) could subject the Trustee to any taxes under Section 857 or Section 4981 of the Code, or (iii) could violate any law or regulation of any governmental body or agency having jurisdiction over the Trustee or its securities, unless such action (or inaction) shall have been specifically consented to by the Trustee in writing.

ARTICLE III
CAPITAL CONTRIBUTIONS AND ISSUANCES
OF UNITS

Section 3.1 Capital Contributions of the Unitholders

Prior to or concurrently with filing and acceptance for record of the Declaration with the Maryland State Department of Assessments and Taxation, the Unitholders have made the Capital Contributions as set forth in the Unitholder Registry. On the date hereof, the Unitholders own Units in the amounts set forth in the Unitholder Registry and have Percentage Interests in the Company as set forth in the Unitholder Registry. The number of Units and Percentage Interest shall be adjusted in the Unitholder Registry from time to time by the Trustee to the extent necessary to reflect accurately exchanges, redemptions, Capital Contributions, the issuance of additional Units or similar events having an effect on a Unitholder’s Percentage Interest occurring after the date hereof in accordance with the terms of this Agreement. One thousand (1,000) Units shall be deemed to be the Trustee’s Units and shall be the Trustee Interest of the Trustee, and all other Units held by the Trustee shall be deemed to be Unitholder Interests and shall be held by the Trustee in its capacity as a non-Trustee in the Company. Except as provided in Sections 6.4 , 9.5 , and 12.3 hereof, the Unitholders shall have no obligation to make any additional Capital Contributions or provide any additional funding to the Company (whether in the form of loans, repayments of loans or otherwise). Except as otherwise set forth in Section 12.3 hereof, no Unitholder shall have any obligation to restore any deficit that may exist in its Capital Account, either upon a liquidation of the Company or otherwise, provided that such Capital Account deficit did not arise by reason of distributions in violation of this Agreement or applicable law or other actions in violation of this Agreement or applicable law.

Section 3.2 Issuance of Units

A. General . The Trustee is hereby authorized to cause the Company from time to time to issue to Unitholders (including the Trustee and its Affiliates) or other Persons (including, without limitation, in connection with the contribution of property to the Company or any of its Subsidiaries) Units in one or more classes, or in one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties, including rights, powers and duties senior to one or more other classes of Units, all as shall be determined, subject to applicable Maryland law, by the Trustee in its sole and absolute discretion, including, without limitation, (i) the allocations of items of Company income, gain,

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loss, deduction and credit to each such class or series of Units, (ii) the right of each such class or series of Units to share in Company distributions, (iii) the rights of each such class or series of Units upon dissolution and liquidation of the Company, (iv) the rights, if any, of each such class to vote on matters that require the vote or Consent of the Non-Trustee Unitholders, and (v) the consideration, if any, to be received by the Company in exchange for such Units or other Units; provided , however , that no such Units shall be issued to the Trustee unless either (a) the Units are issued in connection with the grant, award or issuance of Shares or other equity interests in the Trustee (including a transaction described in Section 6.4.F ) having designations, preferences and other rights such that the economic interests attributable to such Shares or other equity interests are substantially similar to the designations, preferences and other rights (except voting rights) of the Units issued to the Trustee in accordance with this Section 3.2.A , or (b) the additional Units are issued to all Unitholders holding Units in the same class in proportion to their respective Percentage Interests in such class. If the Company issues Units pursuant to this Section 3.2.A , the Trustee shall make such revisions to this Agreement (including but not limited to the revisions described in Section 4.5 , Section 5.2 and Section 7.6 ) as it deems necessary to reflect the issuance of such Units.

B. Classes of Units . From and after the date of the Agreement, the Company shall have three classes of Units entitled “Class A Units,” “Series D Preferred Units” and “LTIP Units,” and such additional classes of Units as may be created by the Trustee pursuant to Section 3.2.A . Class A Units, LTIP Units or a class of Units created pursuant to Section 3.2.A , at the election of the Trustee, in its sole and absolute discretion, may be issued to newly admitted Unitholders in exchange for the contribution by such Unitholders of cash, real estate partnership interests, stock, notes or other assets or consideration; provided , however , that any Unit that is not specifically designated by the Trustee as being of a particular class shall be deemed to be a Class A Unit. The terms of the LTIP Units shall be in accordance with Sections 3.6 and 3.7 .

Section 3.3 No Preemptive Rights

Except to the extent expressly granted by the Company pursuant to another Agreement, no Person shall have any preemptive, preferential or other similar right with respect to (i) additional Capital Contributions or loans to the Company or (ii) issuance or sale of any Units.

Section 3.4 Other Contribution Provisions

A. General . If any Unitholder is admitted to the Company and is given a Capital Account in exchange for services rendered to the Company, such transaction shall be treated by the Company and the affected Unitholder as if the Company had compensated such Unitholder in cash, and the Unitholder had made a Capital Contribution of such cash to the capital of the Company.

B. Mergers . To the extent the Company acquires any property (or an indirect interest therein) by the merger of any other Person into the Company or with or into a Subsidiary of the Company, Persons who receive Units in exchange for their interest in the Person merging into the Company or with or into a Subsidiary of the Company shall be deemed to have been admitted as Additional Unitholders pursuant to Section 11.2 and shall be deemed to have made Capital Contributions as provided in the applicable merger agreement (or if not so provided, as

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determined by the Trustee in its sole and absolute discretion) and as set forth in the Unitholder Registry.

Section 3.5 No Interest on Capital

No Unitholder shall be entitled to interest on its Capital Contributions or its Capital Account.

Section 3.6 LTIP Units

A. Issuance of LTIP Units . The Trustee may from time to time issue LTIP Units to employees, officers, directors or trustees of the Company, the Trustee or any of their respective Subsidiaries, for such consideration, including a cash capital contribution in such amount, as the Trustee may determine to be appropriate, and admit such Persons as Unitholders of the Company. Subject to the following provisions of this Section 3.6 and Sections 3.7 and 5.1.E , LTIP Units shall be treated as Class A Units, with all of the rights, privileges and obligations attendant thereto. For purposes of computing the Unitholders’ Percentage Interests, holders of LTIP Units shall be treated as Class A Unit holders, and LTIP Units shall be treated as Class A Units. In particular, subject to the following provisions of this Section 3.6 and Sections 3.7 and 5.1.E , the Company shall maintain at all times a one-to-one correspondence between LTIP Units and Class A Units for conversion, distribution and other purposes, including, without limitation, complying with the following procedures:

(i) If an Adjustment Event occurs, then the Trustee shall make a corresponding adjustment to the LTIP Units to maintain a one-for-one conversion and economic equivalence ratio between Class A Units and LTIP Units. If more than one Adjustment Event occurs, the adjustment to the LTIP Units need be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously. If the Company takes an action affecting the Class A Units other than actions specifically defined as “Adjustment Events” and in the opinion of the Trustee such action would require an adjustment to the LTIP Units to maintain the one-to-one correspondence described above, the Trustee shall have the right to make such adjustment to the LTIP Units, to the extent permitted by law and by any applicable Equity Incentive Plan, in such manner and at such time as the Trustee, in its sole discretion, may determine to be appropriate under the circumstances. After filing of such certificate, the Company shall mail a notice to each LTIP Unitholder setting forth the adjustment to his or her LTIP Units and the effective date of such adjustment; and

(ii) Subject to the provisions of Sections 4.1.C , 4.1.D and 4.1.E , the LTIP Unitholders shall, when, as and if authorized and declared by the Trustee out of assets legally available for that purpose, be entitled to receive distributions in an amount per LTIP Unit equal to the distributions per Class A Unit paid to holders of Class A Units on the Company Record Date established by the Trustee with respect to such distribution. So long as any LTIP Units are outstanding, no distributions (whether in cash or in kind) shall be authorized, declared or paid on Class A Units unless equal distributions have been or contemporaneously are authorized, declared and paid on the LTIP Units.

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B. Priority . Subject to the provisions of this Section 3.6 and the special provisions of Sections 3.7 , 4.1.C , 4.1.D and 4.1.E , the LTIP Units shall rank pari passu with the Class A Units as to the payment of regular and special periodic or other distributions and distribution of assets upon liquidation, dissolution or winding up. As to the payment of distributions and as to distribution of assets upon liquidation, dissolution or winding up, any class or series of Units which by its terms specifies that it shall rank junior to, on a parity with, or senior to the Class A Units shall also rank junior to, or pari passu with, or senior to, as the case may be, the LTIP Units. Subject to the terms of any Award Agreement, an LTIP Unitholder shall be entitled to transfer his or her LTIP Units to the same extent, and subject to the same restrictions as holders of Class A Units are entitled to transfer their Class A Units pursuant to Article X .

C. Special Provisions . LTIP Units shall be subject to the following special provisions:

(i) Award Agreements. LTIP Units may, in the sole discretion of the Trustee, be issued subject to vesting, forfeiture and additional restrictions on transfer pursuant to the terms of an Award Agreement. The terms of any Award Agreement may be modified by the Trustee from time to time in its sole discretion, subject to any restrictions on amendment imposed by the relevant Award Agreement or by any applicable Equity Incentive Plan.

(ii) Repurchase, Forfeiture and Cancellation. Unless otherwise specified in the Award Agreement, upon the occurrence of any event specified in an Award Agreement as resulting in either the right of the Company or the Trustee to repurchase LTIP Units at a specified purchase price or some other forfeiture of any LTIP Units, then if the Company or the Trustee exercises such right to repurchase or such forfeiture occurs in accordance with the applicable Award Agreement, the relevant LTIP Units shall immediately, and without any further action, be treated as cancelled and no longer outstanding for any purpose. Unless otherwise specified in the Award Agreement, no consideration or other payment shall be due with respect to any LTIP Units that have been forfeited or cancelled, other than any distributions declared with respect to a Company Record Date prior to the effective date of the forfeiture or cancellation. In connection with any repurchase, forfeiture or cancellation of LTIP Units, the balance of the portion of the Capital Account of the LTIP Unitholder that is attributable to all of his or her LTIP Units shall be reduced by the amount, if any, by which it exceeds the target balance contemplated by Section 5.1.E hereof, calculated with respect to the LTIP Unitholder’s remaining LTIP Units, if any.

(iii) Allocations. LTIP Unitholders shall be entitled to certain special allocations of gain under Section 5.1.E . LTIP Units shall be allocated Net Income and Net Loss, for any taxable year or portion of a taxable year occurring after such issuance and prior to the Distribution Participation Date for such LTIP Units, in amounts per LTIP Unit equal to the amounts allocated per Class A Unit for the same period multiplied by the LTIP Unit Sharing Percentage for such LTIP Units. Commencing with the portion of the taxable year of the Company that begins on the Distribution Participation Date established for any LTIP Units, such LTIP Units shall be allocated Net Income and Net Loss in amounts per LTIP Unit equal to the amounts allocated per Class A Unit. The allocations provided by the preceding sentence shall be subject to Section 5.1.A and Section 5.1.B of the Agreement. The Trustee is authorized in its discretion to delay or accelerate the participation of the LTIP Units in allocations of Net Income

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and Net Loss, or to adjust the allocations made after the Distribution Participation Date, so that the ratio of (i) the total amount of Net Income or Net Loss allocated with respect to each LTIP Unit in the taxable year in which that LTIP Unit’s Distribution Participation Date falls, to (ii) the total amount distributed to that LTIP Unit with respect to such period, is equal to such ratio as computed for the Class A Units held by the Trustee. In addition, the Trustee may, in its sole discretion, specially allocate net income or gain realized after the date an LTIP Unit was issued by the Company to such LTIP Unit to prevent Section 4.1.E from reducing the amount distributed to such LTIP Unit.

(iv) Redemption. The Redemption Right provided to the holders of Class A Units under Section 7.6 hereof shall not apply with respect to LTIP Units unless and until they are converted to Class A Units as provided in clause (v) below and Section 3.7 .

(v) Conversion to Class A Units. Vested LTIP Units are eligible to be converted into Class A Units in accordance with Section 3.7 .

D. Voting . LTIP Units shall (a) have the same voting rights as Class A Units, with the LTIP Units voting as a single class with the Class A Units and having one vote per LTIP Unit; and (b) have the additional voting rights that are expressly set forth below. So long as any LTIP Units remain outstanding, the Company shall not, without the affirmative vote of the holders of a majority of the LTIP Units outstanding at the time, given in person or by proxy, either in writing or at a meeting (voting separately as a class), amend, alter or repeal, whether by merger, consolidation or otherwise, the provisions of this Agreement applicable to LTIP Units so as to materially and adversely affect any right, privilege or voting power of the LTIP Units or the LTIP Unitholders as such, unless such amendment, alteration, or repeal affects equally, ratably and proportionately the rights, privileges and voting powers of all of Class A Units (including the Class A Units held by the Trustee); but subject, in any event, to the following provisions:

(i) with respect to any Class A Unit Transaction, so long as the LTIP Units are treated in accordance with Section 3.7.F hereof, the consummation of such Class A Unit Transaction shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the LTIP Units or the LTIP Unitholders as such; and

(ii) any creation or issuance of any Units or of any class or series of Units in accordance with the terms of this Agreement, including, without limitation, additional Class A Units or LTIP Units, whether ranking senior to, junior to, or on a parity with the LTIP Units with respect to distributions and the distribution of assets upon liquidation, dissolution or winding up, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the LTIP Units or the LTIP Unitholders as such.

The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required will be effected, all outstanding LTIP Units shall have been converted into Class A Units.

Section 3.7 Conversion of LTIP Units

A. Automatic Conversion . Unless sooner converted pursuant to the following paragraphs of this Section 3.7 , each LTIP Unit will convert automatically, without any action by

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the holder of such LTIP Unit, into one (1) fully paid and non-assessable Class A Unit, giving effect to all adjustments (if any) made pursuant to Section 3.6 hereof, on the date on which both of the following conditions are satisfied with respect to such LTIP Unit: (i) such LTIP Unit becomes a Vested LTIP Unit, and (ii) Economic Capital Account Balance attributable to such LTIP Unit becomes equal to the Class A Unit Economic Balance; provided , however , that any Special LTIP Unit Distribution payable with respect to such LTIP Unit is paid at the time of or prior to such conversion.

B. Voluntary Conversion Right .

(i) To the extent an LTIP Unitholder’s LTIP Units have not automatically converted into Class A Units pursuant to Section 3.7.A , such holder shall have the right (the “ Voluntary Conversion Right ”), at such holder’s option, at any time to convert all or a portion of such holder’s Vested LTIP Units into a number of fully paid and non-assessable Class A Units, giving effect to all adjustments (if any) made pursuant to Section 3.6 hereof, equal to (x) the Economic Capital Account Balance of such LTIP Unitholder, to the extent attributable to its ownership of such LTIP Units being converted, divided by (y) the Class A Unit Economic Balance, in each case as determined as of the effective date of conversion (the “ Capital Account Limitation ”); provided , however , that an LTIP Unitholder may not exercise the Voluntary Conversion Right for fewer than one thousand (1,000) LTIP Units or, if such holder holds fewer than one thousand (1,000) Vested LTIP Units, all of the Vested LTIP Units held by such holder. LTIP Unitholders shall not have the right to convert LTIP Units into Class A Units until such LTIP Units become Vested LTIP Units; provided , further , that when an LTIP Unitholder is notified of the expected occurrence of an event that will cause his or her LTIP Units to become Vested LTIP Units, such LTIP Unitholder may deliver a Conversion Notice (as provided in clause (ii) below) conditioned upon and effective as of the time of vesting, and such Conversion Notice, unless subsequently revoked by the LTIP Unitholder, shall be accepted by the Company subject to such condition.

(ii) In order to exercise its Voluntary Conversion Right, an LTIP Unitholder shall deliver a notice (a “ Conversion Notice ”) in the form attached as Exhibit F to this Agreement to the Company (with a copy to the Trustee) not less than ten (10) nor more than sixty (60) days prior to a date (the “ Conversion Date ”) specified in such Conversion Notice; provided , however , that if the Trustee has not given to the LTIP Unitholders notice of a proposed or upcoming Class A Unit Transaction at least thirty (30) days prior to the effective date of such Class A Unit Transaction, then LTIP Unitholders shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth day after such notice from the Trustee of a Class A Unit Transaction or (y) the third business day immediately preceding the effective date of such Class A Unit Transaction. A Conversion Notice shall be provided in the manner provided in Section 14.1 . Each LTIP Unitholder covenants and agrees with the Company that all LTIP Units to be converted pursuant to this Section 3.7.B shall be free and clear of all liens and encumbrances. Notwithstanding anything herein to the contrary, a holder of LTIP Units may deliver a Notice of Redemption pursuant to Section 7.6 relating to those Class A Units that will be issued to such holder upon conversion of such LTIP Units into Class A Units in advance of the Conversion Date; provided , however , that the redemption of such Class A Units by the Company shall in no event take place until after the Conversion Date. For clarity, it is noted that the objective of this paragraph is to put an LTIP Unitholder in a position where, if he or she so wishes, the Class A

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Units into which his or her LTIP Units will be converted can be redeemed by the Company simultaneously with such conversion, with the further consequence that, if the Trustee elects to assume and perform the Company’s redemption obligation with respect to such Class A Units under Section 7.6 hereof by delivering to such holder Shares rather than cash, then such holder can have such Shares issued to him or her simultaneously with the conversion of his or her LTIP Units into Class A Units. The Trustee and LTIP Unitholder shall reasonably cooperate with each other to coordinate the timing of the events described in the foregoing sentence. Each LTIP Unitholder covenants and agrees with the Company that all LTIP Units to be converted pursuant to this Section 3.7.B shall be free and clear of all liens and encumbrances.

C. Forced Conversion . To the extent an LTIP Unitholder’s LTIP Units have not automatically converted into Class A Units pursuant to Section 3.7.A , the Company, at any time at the election of the Trustee, may cause any number of Vested LTIP Units held by an LTIP Unitholder to be converted (a “ Forced Conversion ”) into a number of fully paid and non-assessable Class A Units, giving effect to all adjustments (if any) made pursuant to Section 3.6 hereof, equal to (x) the Economic Capital Account Balance of such LTIP Unitholder, to the extent attributable to its ownership of such LTIP Units being converted, divided by (y) the Class A Unit Economic Balance, in each case as determined as of the effective date of conversion; provided , however , that any Special LTIP Unit Distribution payable with respect to such LTIP Units is paid at the time of or prior to such conversion. In order to exercise its right of Forced Conversion, the Company shall deliver a notice (a “ Forced Conversion Notice ”) to the applicable LTIP Unitholder not less than ten (10) nor more than sixty (60) days prior to the Conversion Date specified in such Forced Conversion Notice. A Forced Conversion Notice shall be provided in the manner provided in Section 14.1 .

D. Completion of Conversion . A conversion of LTIP Units pursuant to this Section 3.7 shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such LTIP Unitholder, as of which time such LTIP Unitholder shall be credited on the books and records of the Company with the issuance as of the opening of business on the next day of the number of Class A Units issuable upon such conversion. After the conversion of LTIP Units as aforesaid, the Company shall deliver to such LTIP Unitholder, upon his or her written request, a certificate of the Trustee certifying the number of Class A Units and remaining LTIP Units, if any, held by such person immediately after such conversion. The Assignee of any Unitholder pursuant to Article X hereof may exercise the rights of such Unitholder pursuant to this Section 3.7 and such Unitholder shall be bound by the exercise of such rights by the Assignee.

E. Impact of Conversions for Purposes of Section 5.1.E . For purposes of making future allocations under Section 5.1.E hereof following any conversion of LTIP Units and for purposes of applying the Capital Account Limitation, the portion of the Economic Capital Account Balance of the applicable LTIP Unitholder that is treated as attributable to his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of Class A Units received upon conversion and the Class A Unit Economic Balance.

F. Class A Unit Transactions . If the Company or the Trustee shall be a party to any Class A Unit Transaction, the Company shall use commercially reasonable efforts to cause each LTIP Unitholder to be afforded the right to receive in connection with such Class A Unit

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Transaction in consideration for the Class A Units into which his or her Vested LTIP Units are then convertible the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Class A Unit Transaction by a holder of the same number of Class A Units, assuming such holder of Class A Units is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (a “ Constituent Person ”), or an affiliate of a Constituent Person. In the event that holders of Class A Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Class A Unit Transaction, prior to such Class A Unit Transaction, the Trustee shall give prompt written notice to each LTIP Unitholder of such opportunity, and shall use commercially reasonable efforts to afford the LTIP Unitholders the right to elect, by written notice to the Trustee, the form or type of consideration to be received upon conversion of each LTIP Unit (if then convertible pursuant to this Section 3.7 ) held by such holder into Class A Units in connection with such Class A Unit Transaction. If an LTIP Unitholder fails to make such an election, such holder (and any of its transferees) shall receive upon conversion of each LTIP Unit then convertible pursuant to this Section 3.7 held him or her (or by any of his or her transferees) the same kind and amount of consideration that a holder of a Class A Unit would receive if such Class A Unit holder failed to make such an election. Subject to any Award Agreement and any applicable Equity Incentive Plan, to the extent any LTIP Units are then outstanding, the Company shall use commercially reasonable effort to cause the terms of any Class A Unit Transaction to be consistent with the provisions of this Section 3.7.F and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any LTIP Unitholders whose LTIP Units are not then convertible into Class A Units that will (i) contain provisions enabling the holders of LTIP Units that remain outstanding after such Class A Unit Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to the Class A Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in this Agreement for the benefit of the LTIP Unitholders.

ARTICLE IV
DISTRIBUTIONS

Section 4.1 Requirement and Characterization of Distributions

A. Distribution of Operating Income . The Trustee shall distribute at least quarterly an amount equal to one hundred percent (100%) of the Available Cash of the Company with respect to such quarter or shorter period to the Unitholders in accordance with the terms established for the class or classes of Units held by such Unitholders who are Unitholders on the respective Company Record Date with respect to such quarter or shorter period as provided in Sections 4.1.B , 4.1.C and 4.1.D and in accordance with the respective terms established for each class of Units. Notwithstanding anything to the contrary contained herein, in no event may a Unitholder receive a distribution of Available Cash with respect to a Unit for a quarter or shorter period if such Unitholder is entitled to receive a distribution with respect to a Share for which such Unit has been redeemed or exchanged. Unless otherwise expressly provided for herein, in Attachment A hereto with respect to the Series D Preferred Units, or in the terms established for a new class or series of Units created in accordance with Article III hereof, no Units shall be entitled to a distribution in preference to any other Units. If the Trustee has chosen to attempt to

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qualify as a REIT, the Trustee shall make such reasonable efforts, as determined by it in its sole and absolute discretion and consistent with the qualification of the Trustee as a REIT, to distribute Available Cash (a) to Unitholders in a manner that would not cause any such distribution or portion thereof to be treated as part of a sale of property to the Company by a Unitholder under Section 707 of the Code or the Regulations thereunder; provided , however , that neither the Trustee nor the Company shall have liability to a Unitholder under any circumstances as a result of any distribution to a Unitholder being so treated, and (b) to the Trustee in an amount sufficient to enable the Trustee to make distributions to its shareholders that will enable the Trustee to (1) satisfy the requirements for qualification as a REIT under the Code and the Regulations (the “ REIT Requirements ”), and (2) avoid any federal income or excise tax liability.

B. Method .

(i) Each holder of Units, if any, that is entitled to any preference in distribution (including, without limitation, the preferences in distribution set forth in Attachment A hereto with respect to Series D Preferred Units) shall be entitled to a distribution in accordance with the rights of any such class of Units (and, within such class, pro rata in proportion to the respective Percentage Interests on such Company Record Date).

(ii) To the extent there is Available Cash remaining after the payment of any preference in distribution in accordance with the foregoing clause (i) (if applicable), with respect to Units that are not entitled to any preference in distribution, such Available Cash shall be distributed pro rata to each such class in accordance with the terms of such class (and, within each such class, pro rata in proportion to the respective Percentage Interests on such Company Record Date).

C. Distributions With Respect to LTIP Units . Commencing from (i) the date of issuance with respect to Time Vested LTIP Units, and (ii) with respect to Performance Vested LTIP Units, the date following completion of the performance period on which the number of LTIP Units subject to such award is determined based on the results of the performance period (in each case, the “ Distribution Participation Date ”), for any quarterly or other period holders of such LTIP Units shall be entitled to receive, if, when and as authorized by the Trustee out of funds legally available for the payment of distributions, regular cash distributions in an amount per unit equal to the distribution payable on each Class A Unit for the corresponding quarterly or other period (the “ LTIP Distribution Amount ”). In addition, from and after the Distribution Participation Date, LTIP Units shall be entitled to receive, if, when and as authorized by the Trustee out of funds or other property legally available for the payment of distributions, non-liquidating special, extraordinary or other distributions in an amount per unit equal to the amount of any non-liquidating special, extraordinary or other distributions payable on the Class A Units which may be made from time to time. LTIP Units shall also be entitled to receive, if, when and as authorized by the Trustee out of funds or other property legally available for the payment of distributions, distributions representing proceeds of a sale or other disposition of all or substantially all of the assets of the Company in an amount per unit equal to the amount of any such distributions payable on the Class A Units, whether made prior to, on or after the Distribution Participation Date, provided that the amount of such distributions shall not exceed the positive balances of the Capital Accounts of the holders of such LTIP Units to the extent

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attributable to the ownership of such LTIP Units. Distributions on the LTIP Units, if authorized, shall be payable on such dates and in such manner as may be authorized by the Trustee (any such date, a “ Distribution Payment Date ”); provided that the Distribution Payment Date and the record date for determining which holders of LTIP Units are entitled to receive a distribution shall be the same as the corresponding dates relating to the corresponding distribution on the Class A Units.

D. Special LTIP Unit Distribution . As of the Distribution Participation Date for a Performance Vested LTIP Unit that is not forfeited on or prior to such Distribution Participation Date, the holder of such Performance Vested LTIP Unit will be entitled to receive a special distribution (the “ Special LTIP Unit Distribution ”) with respect to such unit, equal to the Applicable Special LTIP Unit Distribution Amount with respect to such unit; provided , however , that such amount shall not exceed either (x) the amount of non-liquidating cash distributions per unit that were paid on the Class A Units on or after the date of the issuance of such Performance Vested LTIP Unit (or such other date as is specified as the Distribution Measurement Date in the Award Agreement or other documentation pursuant to which such Performance Vested LTIP Unit is issued) (such date being referred to as the “ Distribution Measurement Date ” with respect to such Performance Vested LTIP Unit) and prior to such Distribution Participation Date or (y) the positive balance of the Capital Account of such holder attributable to such Performance Vested LTIP Unit. The “ Applicable Special LTIP Unit Distribution Amount ” with respect to a Performance Vested LTIP Unit equals the product of (x) the amount of non-liquidating cash distributions per unit that were paid on the Class A Units on or after the Distribution Measurement Date with respect to such Performance Vested LTIP Unit and prior to the Distribution Participation Date for such Performance Vested LTIP Unit, multiplied by (y) the LTIP Unit Sharing Percentage for such Performance Vested LTIP Unit. The Special LTIP Unit Distribution for a Performance Vested LTIP Unit will be payable on the first Distribution Payment Date on or after the Distribution Participation Date for such Performance Vested LTIP Unit if and when authorized by the Trustee out of funds legally available for the payment of distributions; provided that, to the extent not otherwise prohibited by the terms of any class of Units entitled to any preference in distribution and authorized by the Trustee out of funds legally available for the payment of distributions, such Special LTIP Unit Distribution may be paid prior to such Distribution Payment Date. On or after the Distribution Participation Date with respect to a Performance Vested LTIP Unit, if such Performance Vested LTIP Unit is outstanding, no distributions (other than in Class A Units, LTIP Units or other Units ranking on par with or junior to such units as to distributions and upon liquidation, dissolution or winding up of the affairs of the Company) shall be declared or paid or set apart for payment upon the Class A Units, the LTIP Units or any other Units ranking junior to or on a parity with the Performance Vested LTIP Unit as to distributions for any period (other than Special LTIP Unit Distributions with respect to Performance Vested LTIP Units that had an earlier Distribution Participation Date) unless the full amount of any Special LTIP Unit Distribution due with respect to such LTIP Unit have been or contemporaneously are declared and paid.

E. LTIP Units Intended to Qualify as Profits Interests . Distributions made pursuant to this Section 4.1 shall be adjusted as necessary to ensure that the amount apportioned to each LTIP Unit does not exceed the amount attributable to Company net income or gain realized after the date such LTIP Unit was issued by the Company. If distributions are reduced in accordance with the preceding sentence for a taxable year due to insufficient net income or gain for such

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year, distributions shall be made up in subsequent taxable years when there is sufficient net income or gain. The intent of this Section 4.1.E is to ensure that any LTIP Units issued after the date of this Agreement qualify as “profits interests” under Revenue Procedure 93-27, 1993-2 C.B. 343 (June 9, 1993) and Revenue Procedure 2001-43, 2001-2 C.B. 191 (August 3, 2001), and this Section 4.1 shall be interpreted and applied consistently therewith. The Trustee at its discretion may amend this Section 4.1.E to ensure that any LTIP Units granted after the date of this Agreement will qualify as “profits interests” under Revenue Procedure 93-27, 1993-2 C.B. 343 (June 9, 1993) and Revenue Procedure 2001-43, 2001-2 C.B. 191 (August 3, 2001) (and any other similar rulings or regulations that may be in effect at such time).

F. Liquidation Value Safe Harbor . The Company is authorized and directed to elect the liquidation value safe harbor provided by proposed Treasury Regulations Section 1.83-3(l) (and any successor provision) and IRS Notice 2005-43, and the Company and each of the Unitholders (including any Person to whom an interest in the Company is transferred in connection with the performance of its services) agree to comply with all requirements of such safe harbor with respect to all interests in the Company eligible for such safe harbor that are transferred in connection with the performance of services while such election remains effective.

Section 4.2 Distributions in Kind

The Trustee may determine, in its sole and absolute discretion, to make a distribution in kind of Company assets to the holders of Units, and such assets shall be distributed in such a fashion as to ensure that the fair market value is distributed and allocated in the same manner as a cash distribution in accordance with Articles IV, V and XII hereof.

Section 4.3 Amounts Withheld

All amounts withheld pursuant to the Code or any provisions of any state or local tax law and Section 9.5 with respect to any allocation, payment or distribution to the Trustee, the Unitholders or Assignees shall be treated as amounts distributed to the Trustee, Unitholders or Assignees, as the case may be, pursuant to Section 4.1 for all purposes under this Agreement.

Section 4.4 Distributions upon Liquidation

Proceeds from a Liquidating Event shall be distributed to the Unitholders in accordance with Section 12.2 .

Section 4.5 Revisions to Reflect Issuance of Units

If the Company issues Units to the Trustee or any Additional Unitholder pursuant to Article III hereof, the Trustee shall make such revisions to this Article IV and the Unitholder Registry in the books and records of the Company as it deems necessary to reflect the terms of the issuance of such Units. Such revisions shall not require the consent or approval of any other Unitholder.

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ARTICLE V
ALLOCATIONS

Section 5.1 Allocations for Capital Account Purposes

For purposes of maintaining the Capital Accounts and in determining the rights of the Unitholders among themselves, the Company’s items of income, gain, loss and deduction (computed in accordance with Exhibit B ) shall be allocated among the Unitholders in each taxable year (or portion thereof) as provided herein below.

A. Net Income . After giving effect to the special allocations set forth in Section 1 of Exhibit C of this Agreement and any special allocations required to be made pursuant to Section 5.1.E , Net Income shall be allocated:

(1) first, to the Trustee to the extent that Net Loss previously allocated to the Trustee pursuant to Section 5.1.B(6) exceed Net Income previously allocated to the Trustee pursuant to this clause (1);

(2) second, to each DRO Unitholder until the cumulative Net Income allocated to such DRO Unitholder under this clause (2) equals the cumulative Net Loss allocated to such DRO Unitholder under Section 5.1.B(5) (and among the DRO Unitholders, pro rata in proportion to their respective percentages of the cumulative Net Loss allocated to all DRO Unitholders pursuant to Section 5.1.B(5) hereof);

(3) third, to the Trustee until the cumulative Net Income allocated under this clause (3) equals the cumulative Net Loss allocated the Trustee under Section 5.1.B(4) ;

(4) fourth, to the holders of any Units that are entitled to any preference upon liquidation until the cumulative Net Income allocated under this clause (4) equals the cumulative Net Loss allocated to such Unitholders under Section 5.1.B(3) ;

(5) fifth, to the holders of any Units that are entitled to any preference in distribution in accordance with the rights of any other class of Units until each such Units has been allocated, on a cumulative basis pursuant to this clause (5), Net Income equal to the amount of distributions payable that are attributable to the preference of such class of Units, whether or not paid (and, within such class, pro rata in proportion to the respective Percentage Interests as of the last day of the period for which such allocation is being made);

(6) sixth, to the holders of any Units that are not entitled to any preference upon liquidation until the cumulative Net Income allocated under this clause (6) equals the cumulative Net Loss allocated to such Unitholders under Section 5.1.B(2) ; and

(7) finally, with respect to Units that are not entitled to any preference in distribution or with respect to which distributions are not limited to any preference in distribution, pro rata to each such class in accordance with the terms of such class

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(and, within such class, pro rata in proportion to the respective Percentage Interests as of the last day of the period for which such allocation is being made).

B. Net Loss . After giving effect to the special allocations set forth in Section 1 of Exhibit C of this Agreement and any special allocations required to be made pursuant to Sections 5.1.E , Net Loss shall be allocated:

(1) first, to the holders of Units that are not entitled to any preference in distribution or with respect to which distributions are not limited to any preference in distribution, in proportion to, and to the extent that, their share of the Net Income previously allocated pursuant to Section 5.1.A(7) exceeds, on a cumulative basis, the sum of (a) distributions with respect to such Units pursuant to clause (ii) of Section 4.1.B and (b) Net Loss allocated under this clause (1);

(2) second, with respect to classes of Units that are not entitled to any preference in distribution upon liquidation, pro rata to each such class in accordance with the terms of such class (and, within such class, pro rata in proportion to the respective Percentage Interests as of the last day of the period for which such allocation is being made); provided , however , that Net Loss shall not be allocated to any Unitholder pursuant to this Section 5.1.B(2) to the extent that such allocation would cause such Unitholder to have an Adjusted Capital Account Deficit (or increase any existing Adjusted Capital Account Deficit) (determined in each case (i) by not including in the Unitholders’ Adjusted Capital Accounts any amount that a Unitholder is obligated to contribute to the Company with respect to any deficit in its Capital Account pursuant to Section 12.3 and (ii) in the case of a Unitholder who also holds classes of Units that are entitled to any preferences in distribution upon liquidation, by subtracting from such Unitholders’ Adjusted Capital Account the amount of such preferred distribution to be made upon liquidation) at the end of such taxable year (or portion thereof);

(3) third, with respect to classes of Units that are entitled to any preference in distribution upon liquidation, in reverse order of the priorities of each such class (and within each such class, pro rata in proportion to their respective Percentage Interests as of the last day of the period for which such allocation is being made); provided , however , that Net Loss shall not be allocated to any Unitholder pursuant to this Section 5.1.B(3) to the extent that such allocation would cause such Unitholder to have an Adjusted Capital Account Deficit (or increase any existing Adjusted Capital Account Deficit) (determined in each case by not including in the Unitholders’ Adjusted Capital Accounts any amount that a Unitholder is obligated to contribute to the Company with respect to any deficit in its Capital Account pursuant to Section 12.3 ) at the end of such taxable year (or portion thereof);

(4) fourth, to the Trustee in an amount equal to the excess of (a) the amount of the Company’s Recourse Liabilities over (b) the Aggregate DRO Amount;

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(5) fifth, to and among the DRO Unitholders, in proportion to their respective DRO Amounts, until such time as the DRO Unitholders as a group have been allocated cumulative Net Loss pursuant to this clause (5) equal to the Aggregate DRO Amount; and

(6) thereafter, to the Trustee.

C. Allocation of Nonrecourse Debt . For purposes of Regulation Section 1.752-3(a), the Unitholders agree that Nonrecourse Liabilities of the Company in excess of the sum of (i) the amount of Company Minimum Gain and (ii) the total amount of Nonrecourse Built-in Gain shall be allocated by the Trustee by taking into account facts and circumstances relating to each Unitholder’s respective interest in the profits of the Company unless and to the extent provided otherwise in an agreement between any Unitholder and the Company. For this purpose, the Trustee shall have the sole and absolute discretion in any Fiscal Year to allocate such excess Nonrecourse Liabilities among the Unitholders in any manner permitted under Code Section 752 and the Regulations thereunder.

D. Recapture Income . Any gain allocated to the Unitholders upon the sale or other taxable disposition of any Company asset shall, to the extent possible after taking into account other required allocations of gain pursuant to Exhibit C , be characterized as Recapture Income in the same proportions and to the same extent as such Unitholders have been allocated any deductions directly or indirectly giving rise to the treatment of such gains as Recapture Income.

E. Special Allocations Regarding LTIP Units . Notwithstanding the provisions of Section 5.1.A and subject to the immediately following sentence, Liquidating Gains shall first be allocated to the LTIP Unitholders until their Economic Capital Account Balances, to the extent attributable to their ownership of LTIP Units, are equal to (i) the Class A Unit Economic Balance, multiplied by (ii) the number of their LTIP Units, plus the aggregate net amount of Net Income and Net Loss allocated to such LTIP Units prior to the Distribution Participation Date with respect to such LTIP Units less the amount of any Special LTIP Unit Distributions with respect to such LTIP Units (such amount, the “ Target Capital Account Balance ”); provided , however , that no such Liquidating Gains will be allocated with respect to any particular LTIP Unit unless and to the extent that such Liquidating Gains, when aggregated with other Liquidating Gains realized since the issuance of such LTIP Unit, exceed Liquidating Losses realized since the issuance of such LTIP Unit. Liquidating Gains shall be allocated to the LTIP Unitholders pursuant to the preceding sentence (i) on a “first-in, first-out” basis with respect to LTIP Units issued on different dates and (ii) on an equal basis with respect to LTIP Units issued on the same date (i.e., Liquidating Gains shall be allocated first to the LTIP Units that were issued on the earliest date, and then with respect to such LTIP Units, equally among such LTIP Units). After giving effect to the special allocations set forth in Section 1 of Exhibit C hereto, and notwithstanding the provisions of Sections 5.1.A and 5.1.B above, in the event that, due to distributions with respect to Class A Units in which the LTIP Units do not participate or otherwise, the Economic Capital Account Balances of any present or former holder of LTIP Units, to the extent attributable to the holder’s ownership of LTIP Units, exceed the Target Capital Account Balance, then Liquidating Losses shall be allocated to such holder to the extent necessary to reduce or eliminate the disparity. In the event that Liquidating Gains or Liquidating Losses are allocated under this Section 5.1.E , Net Income

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allocable under Section 5.1.A(6) and any Net Loss shall be recomputed without regard to the Liquidating Gains or Liquidating Losses so allocated. For this purpose, “ Liquidating Gains ” means net gains that are or would be realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Company, including but not limited to net capital gain realized in connection with an adjustment to the value of Company assets under Section 704(b) of the Code made pursuant to Section 1.D of Exhibit B of this Agreement. “ Liquidating Losses ” means any net capital loss realized in connection with any such event. The “ Economic Capital Account Balances ” of the LTIP Unitholders will be equal to their Capital Account balances to the extent attributable to their ownership of LTIP Units, plus the amount of their share of any Unitholder Minimum Gain or Company Minimum Gain, in either case to the extent attributable to their ownership of LTIP Units and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under this Section 5.1.E , but prior to the realization of any Liquidating Gains. Similarly, the “ Class A Unit Economic Balance ” shall mean (i) the Capital Account balance of the Trustee, plus the amount of the Trustee’s share of any Unitholder Minimum Gain or Company Minimum Gain, in either case to the extent attributable to the Trustee’s ownership of Class A Units and computed on a hypothetical basis after taking into account all allocations through the date on which any allocation is made under this Section 5.1.E , but prior to the realization of any Liquidating Gains, divided by (ii) the number of the Trustee’s Class A Units. Any such allocations shall be made among the LTIP Unitholders in proportion to the amounts required to be allocated to each under this Section 5.1.E . The parties agree that the intent of this Section 5.1.E is to make the Capital Account balance associated with each LTIP Unit to be economically equivalent to the Capital Account balance associated with the Trustee’s Class A Units (on a per-Unit basis, other than differences resulting from the allocation of Net Income and Net Loss allocated to such LTIP Units prior to the Distribution Participation Date with respect to such LTIP Units in excess of the amount of Special LTIP Unit Distributions paid with respect to such LTIP Units), provided that Liquidating Gains are of a sufficient magnitude to do so upon a sale of all or substantially all of the assets of the Company, or upon an adjustment to the Unitholders’ Capital Accounts pursuant to Section 1.D of Exhibit B . To the extent the LTIP Unitholders receive a distribution in excess of their Capital Accounts, such distribution will be a guaranteed payment under Section 707(c) of the Code.

Section 5.2 Revisions to Allocations to Reflect Issuance of Units

If the Company issues Units to the Trustee or any Additional Unitholder pursuant to Article III hereof, the Trustee shall make such revisions to this Article V and the Unitholder Registry in the books and records of the Company as it deems necessary to reflect the terms of the issuance of such Units, including making preferential allocations to classes of Units that are entitled thereto. Such revisions shall not require the consent or approval of any other Unitholder.

ARTICLE VI
MANAGEMENT AND OPERATIONS OF BUSINESS

Section 6.1 Management

A. Powers of Trustee . Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Company are and shall be exclusively

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vested in the Trustee, and no Unitholder shall have any right to participate in or exercise control or management power over the business and affairs of the Company. The Trustee may not be removed by the Unitholders with or without cause. In addition to the powers now or hereafter granted a Trustee of a real estate investment trust under applicable law or which are granted to the Trustee under any other provision of this Agreement, the Trustee shall have full power and authority to do all things deemed necessary or desirable by it to conduct the business of the Company, to exercise all powers set forth in Section 2.3 and to effectuate the purposes set forth in Section 2.2 , including, without limitation:

(1) the making of any expenditures, the lending or borrowing of money (including, without limitation, making prepayments on loans and borrowing money to permit the Company to make distributions to its Unitholders in such amounts as are required under Section 5.1.A or will permit the Trustee (so long as the Trustee chooses to attempt to qualify as a REIT) to avoid the payment of any U.S. federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders sufficient to permit the Trustee to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities including, without limitation, the assumption or guarantee of the debt of the Trustee, its Subsidiaries or the Company’s Subsidiaries, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Company’s assets) and the incurring of any obligations the Trustee deems necessary for the conduct of the activities of the Company;

(2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Company;

(3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Company (including acquisition of any new assets, the exercise or grant of any conversion, option, privilege or subscription right or other right available in connection with any assets at any time held by the Company) or the merger, consolidation, reorganization or other combination of the Company or any Subsidiary of the Company with or into another entity on such terms as the Trustee deems proper;

(4) the use of the assets of the Company (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Trustee, the Company or any of the Company’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Trustee, its Subsidiaries, the Company’s Subsidiaries and any of their Affiliates) and the repayment of obligations of the Company and its Subsidiaries and any other Person in which the Company has an equity investment and the making of capital contributions to, and equity investments in, its Subsidiaries;

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(5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Company or any Subsidiary of the Company or any Person in which the Company has made a direct or indirect equity investment;

(6) the negotiation, execution, and performance of any contracts, conveyances or other instruments that the Trustee considers useful or necessary to the conduct of the Company’s operations or the implementation of the Trustee’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Company’s assets;

(7) the mortgage, pledge, encumbrance or hypothecation of any assets of the Company;

(8) the distribution of Company cash or other Company assets in accordance with this Agreement;

(9) the holding, managing, investing and reinvesting of cash and other assets of the Company;

(10) the collection and receipt of revenues and income of the Company;

(11) the selection, designation of powers, authority and duties and the dismissal of employees of the Company (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors of the Company and the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Company’s assets;

(12) the maintenance of such insurance (including, without limitation, directors, trustees and officers insurance) for the benefit of the Company and the Unitholders (including, without limitation, the Trustee) and the directors, trustees and officers thereof as the Trustee deems necessary or appropriate;

(13) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Company or the Trustee or third parties) in, and the contribution of property to, any further limited or general partnerships, joint ventures, limited liability companies, corporations or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any other Person in which it has an equity investment from time to time, or the incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons); provided , however , that as long as the Trustee has determined to attempt to continue to qualify as a REIT, the Company may not engage in any such formation, acquisition or contribution that would cause the Trustee to fail to qualify as a REIT;

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(14) the control of any matters affecting the rights and obligations of the Company or any Subsidiary of the Company, including the settlement, compromise, submission to arbitration or any other form of dispute resolution or abandonment of any claim, cause of action, liability, debt or damages due or owing to or from the Company or any Subsidiary of the Company, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the representation of the Company or any Subsidiary of the Company in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;

(15) the determination of the fair market value of any Company property distributed in kind, using such reasonable method of valuation as the Trustee may adopt;

(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any assets or investment held by the Company or any Subsidiary of the Company;

(17) the exercise of any of the powers of the Trustee enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Company or any other Person in which the Company has a direct or indirect interest, individually or jointly with any such Subsidiary or other Person;

(18) the exercise of any of the powers of the Trustee enumerated in this Agreement on behalf of any Person in which the Company does not have any interest pursuant to contractual or other arrangements with such Person;

(19) the making, executing and delivering of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or other legal instruments or agreements in writing necessary or appropriate in the judgment of the Trustee for the accomplishment of any of the powers of the Trustee enumerated in this Agreement;

(20) the distribution of cash to acquire Units held by a Unitholder in connection with a Unitholder’s exercise of its Redemption Right under Section 7.6 ;

(21) the determination regarding whether a payment to a Unitholder who exercises its Redemption Right under Section 7.6 that is assumed by the Trustee will be paid in the form of the Cash Amount or the Shares Amount, except as such determination may be limited by Section 7.6 .

(22) the acquisition of Units in exchange for cash, debt instruments and other property;

(23) the maintenance of the Unitholder Registry in the books and records of the Company to reflect the Capital Contributions and Percentage Interests of the

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Unitholders as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance and transfer of Units, the admission of any Additional Unitholder or any Substituted Unitholder or otherwise;

(24) the registration of any class of securities under the Securities Act or the Securities Exchange Act, and the listing of any debt securities of the Company on any exchange;

(25) the issuance of additional Units, as appropriate and in the Trustee’s sole and absolute discretion;

(26) the taking of any and all acts and things necessary or prudent to ensure that the Company will not be classified as an association taxable as a corporation for U.S. federal income tax purposes or a “publicly traded partnership” for purposes of Section 7704 of the Code, including but not limited to imposing restrictions on transfers, restrictions on the number of Unitholders and restrictions on redemptions;

(27) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Company’s assets or any other aspect of the Company business;

(28) taking of any action necessary or appropriate to comply with all regulatory requirements applicable to the Company in respect of its business, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports, filings and documents, if any, required under the Exchange Act, the Securities Act, or by any national securities exchange requirements;

(29) the enforcement of any rights against any Unitholder pursuant to representations, warranties, covenants and indemnities relating to such Unitholder’s contribution of property or assets to the Company; and

(30) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the Trustee deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Company (including, without limitation, all actions consistent with allowing the Trustee at all times to qualify as a REIT unless the Trustee voluntarily terminates its REIT status) and to possess and enjoy all the rights and powers of a Trustee as provided by the Act.

B. No Approval by Unitholders . Each of the Unitholders agrees that the Trustee is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Company without any further act, approval or vote of the Unitholders, notwithstanding any other provision of this Agreement, the Maryland REIT Law or any applicable law, rule or regulation, to the fullest extent permitted under the Maryland REIT Law or other applicable law, rule or regulation. The execution, delivery or performance by the

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Trustee or the Company of any agreement authorized or permitted under this Agreement shall be in the sole and absolute discretion of the Trustee without consideration of any other obligation or duty, fiduciary or otherwise, of the Company or the Unitholders and shall not constitute a breach by the Trustee of any duty that the Trustee may owe the Company or the Unitholders or any other Persons under this Agreement or of any duty stated or implied by law or equity. The Unitholders acknowledge that the Trustee is acting for the collective benefit of the Company, the Unitholders and the shareholders of the Trustee.

C. Insurance . At all times from and after the date hereof, the Trustee may cause the Company to obtain and maintain (i) casualty, liability and other insurance on the properties of the Company and its Subsidiaries and (ii) liability insurance for the Indemnitees hereunder, and (iii) such other insurance as the Trustee, in its sole and absolute discretion, determines to be necessary.

D. Working Capital and Other Reserves . At all times from and after the date hereof, the Trustee may cause the Company to establish and maintain working capital reserves in such amounts as the Trustee, in its sole and absolute discretion, deems appropriate and reasonable from time to time, including upon liquidation of the Company under Article XII .

Section 6.2 Title to Company Assets

Title to Company assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Unitholders, individually or collectively, shall have any ownership interest in such Company assets or any portion thereof. Title to any or all of the Company assets may be held in the name of the Company, the Trustee or one or more nominees, as the Trustee may determine, in its sole and absolute discretion, including Affiliates of the Trustee. The Trustee hereby declares and warrants that any Company assets for which legal title is held in the name of the Trustee or any nominee or Affiliate of the Trustee shall be held by the Trustee for the use and benefit of the Company in accordance with the provisions of this Agreement. Any Company assets shall be recorded as the property of the Company in its books and records, irrespective of the name in which legal title to such Company assets is held.

Section 6.3 Reimbursement of the Trustee

A. No Compensation . Except as provided in this Section 6.3 and elsewhere in this Agreement (including Section 9.3.C and the provisions of Articles IV and V regarding distributions, payments and allocations to which it may be entitled), the Trustee shall not be compensated for its services as the Trustee of the Company.

B. Responsibility for Trustee Expenses . The Company shall be responsible for and shall pay all expenses relating to the Company’s organization, the ownership of its assets and its operations. The Trustee shall be reimbursed on a monthly basis, or such other basis as the Trustee may determine in its sole and absolute discretion, for all expenses it incurs relating to or resulting from the ownership and operation of, or for the benefit of, the Company (including, without limitation, (i) expenses relating to the ownership of interests in and operation of the Company, (ii) compensation of the officers and employees including, without limitation,

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payments under any stock option or incentive plan that provides for stock units, or other phantom stock, pursuant to which employees will receive payments based upon dividends on or the value of Shares, (iii) auditing expenses, (iv) director fees and expenses of the Trustee, (v) all costs and expenses of the Trustee being a public company, including costs of filings with the Securities and Exchange Commission, reports and other distributions to its shareholders, and (vi) all costs and expenses associated with litigation involving the Trustee and the Trustee, the Company or any Subsidiary); provided , however , that (i) the amount of any such reimbursement shall be reduced by (x) any interest earned by the Trustee with respect to bank accounts or other instruments or accounts held by it on behalf of the Company as permitted in Section 6.4.A (which interest is considered to belong to the Company and shall be paid over to the Company to the extent not applied to reimburse the Trustee for expenses hereunder); and (y) any amount derived by the Trustee from any investments permitted in Section 6.4.A ; (ii) if the Trustee qualifies as a REIT, the Company shall not be responsible for any taxes that the Trustee would not have been required to pay if that entity qualified as a REIT for federal income tax purposes or any taxes imposed on the Trustee by reason of that entity’s failure to distribute to its shareholders an amount equal to its taxable income; (iii) the Company shall not be responsible for expenses or liabilities incurred by the Trustee in connection with any business or assets of the Trustee other than its ownership of Units or operation of the business of the Company or ownership of interests in other Qualified Assets; and (iv) the Company shall not be responsible for any expenses or liabilities of the Trustee that are the subject of an indemnification claim by the Trustee if the Trustee is not entitled to indemnification because it fails to meet the required statutory standard of conduct. The Trustee shall determine in good faith the amount of expenses incurred by it related to the ownership of Units or operation of, or for the benefit of, the Company. If certain expenses are incurred that are related both to the ownership of Units or operation of, or for the benefit of, the Company and to the ownership of other assets (other than Qualified Assets) or the operation of other businesses, such expenses will be allocated to the Company and such other entities (including the Trustee) owning such other assets or businesses in such a manner as the Trustee in its sole and absolute discretion deems fair and reasonable. Such reimbursements shall be in addition to any reimbursement to the Trustee pursuant to Section 9.3.C and as a result of indemnification pursuant to the Declaration. All payments and reimbursements hereunder shall be characterized for U.S. federal income tax purposes as expenses of the Company incurred on its behalf, and not as expenses of the Trustee.

C. Unit Issuance Expenses . The Trustee shall also be reimbursed for all expenses it incurs relating to any issuance of Units, Shares, Debt of the Company, Funding Debt of the Trustee or rights, options, warrants or convertible or exchangeable securities pursuant to Article III (including, without limitation, all costs, expenses, damages and other payments resulting from or arising in connection with litigation related to any of the foregoing), all of which expenses are considered by the Unitholders to constitute expenses of, and for the benefit of, the Company.

D. Repurchases of Shares . If the Trustee exercises its rights under its organizational documents to purchase Shares or otherwise elects or is required to purchase from its shareholders Shares in connection with a share repurchase or similar program or otherwise, or for the purpose of delivering such Shares to satisfy an obligation under any dividend reinvestment or equity purchase program adopted by the Trustee, any employee equity purchase plan adopted by the Trustee or any similar obligation or arrangement undertaken by the Trustee in the future, the

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purchase price paid by the Trustee for those Shares and any other expenses incurred by the Trustee in connection with such purchase shall be considered expenses of the Company and shall be reimbursable to the Trustee, subject to the conditions that: (i) if those Shares subsequently are to be sold by the Trustee shall pay to the Company any proceeds received by the Trustee for those Shares ( provided , however , that a transfer of Shares for Units pursuant to Section 7.6 would not be considered a sale for such purposes); and (ii) if such Shares are required to be cancelled pursuant to applicable law or are not retransferred by the Trustee within thirty (30) days after the purchase thereof, the Trustee shall cause the Company to cancel a number of Units (rounded to the nearest whole Unit) held by the Trustee equal to the product attained by multiplying the number of those Shares by a fraction, the numerator of which is one and the denominator of which is the Conversion Factor.

E. Reimbursement not a Distribution . Except as set forth in the succeeding sentence, if and to the extent any reimbursement made pursuant to this Section 6.3 is determined for U.S. federal income tax purposes not to constitute a payment of expenses of the Company, the amount so determined shall constitute a guaranteed payment with respect to capital within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the Company and all Unitholders and shall not be treated as a distribution for purposes of computing the Unitholders’ Capital Accounts. Amounts deemed paid by the Company to the Trustee in connection with redemption of Units pursuant to Section 6.4.B shall be treated as a distribution for purposes of computing the Unitholder’s Capital Accounts.

F. Funding for Certain Capital Transactions . In the event that the Trustee shall undertake to acquire (whether by merger, consolidation, purchase, or otherwise) the assets or equity interests of another Person and such acquisition shall require the payment of cash by the Trustee (whether to such Person or to any other selling party or parties in such transaction or to one or more creditors, if any, of such Person or such selling party or parties), (a) the Company shall advance to the Trustee the cash required to consummate such acquisition if, and to the extent that, such cash is not to be obtained by the Trustee through an issuance of Shares described in Section 3.2 or pursuant to a transaction described in Section 6.4.B , (b) the Trustee shall, upon consummation of such acquisition, transfer to the Company (or cause to be transferred to the Company), in full and complete satisfaction of such advance and as required by Section 6.4 , the assets or equity interests of such Person acquired by the Trustee in such acquisition (or equity interests in Persons owning all of such assets or equity interests), and (c) pursuant to and in accordance with Section 3.2 and Section 6.4.B , the Company shall issue to the Trustee, Units and/or rights, options, warrants or convertible or exchangeable securities of the Company having designations, preferences and other rights that are substantially the same as those of any additional Shares, other equity securities, New Securities and/or Convertible Funding Debt, as the case may be, issued by the Trustee in connection with such acquisition (whether issued directly to participants in the acquisition transaction or to third parties in order to obtain cash to complete the acquisition). In addition to, and without limiting, the foregoing, in the event that the Trustee engages in a transaction in which (x) the Trustee (or a wholly owned direct or indirect Subsidiary of the Trustee) merges with another entity (referred to as the “ Parent Entity ”) that is organized in the UPREIT form (i.e., where the Parent Entity holds substantially all of its assets and conducts substantially all of its operations through a partnership, limited liability company or other entity (referred to as an “ Operating Entity ”)) (“ UPREIT ”) and the Trustee survives such merger, (y) such Operating Entity merges with or is otherwise

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acquired by the Company in exchange in whole or in part for Units, and (z) the Trustee is required or elects to pay part of the consideration in connection with such merger involving the Parent Entity in the form of cash and part of the consideration in the form of Shares, the Company shall distribute to the Trustee with respect to its existing Units an amount of cash sufficient to complete such transaction and the Trustee shall cause the Company to cancel a number of Units (rounded to the nearest whole number) held by the Trustee equal to the product attained by multiplying the number of additional Shares of the Trustee that the Trustee would have issued to the Parent Entity or the owners of the Parent Entity in such transaction if the entire consideration therefor were to have been paid in Shares by a fraction, the numerator of which is one and the denominator of which is the Conversion Factor.

Section 6.4 Outside Activities of the Trustee; Relationship of Shares to Units; Funding Debt

A. General . Without the Consent of the Non-Trustee Unitholders, the Trustee shall not, directly or indirectly, enter into or conduct any business other than in connection with the ownership, acquisition and disposition of Units as Trustee or Unitholder and the management of the business of the Company and such activities as are incidental thereto. Without Consent of the Non-Trustee Unitholders, the assets of the Trustee shall be limited to the following:

(1) Units and other interests, rights, options, warrants or convertible or exchangeable securities of the Company;

(2) such bank accounts or similar instruments or accounts in the Trustee’s name as the Trustee deems necessary to carry out its responsibilities and purposes as contemplated under this Agreement and its organizational documents (provided that accounts held on behalf of the Company to permit the Trustee to carry out its responsibilities under this Agreement shall be considered to belong to the Company and the interest earned thereon shall, subject to Section 6.3.B , be applied for the benefit of the Company);

(3) up to a one percent (1%) equity interest in any partnership or limited liability company at least ninety-nine percent (99%) of the equity of which is owned, directly or indirectly, by the Company;

(4) debt issued by the Company or any Subsidiary thereof in connection with the incurrence of Funding Debt;

(5) real estate assets (and related assets and liabilities) owned by the Trustee on the date of this Agreement with an aggregate book value not to exceed $50,000,000, as reasonably determined by the Trustee;

(6) cash or other assets (x) of nominal value incidental to the Trustee’s ownership of Units or other securities in the Company, and (y) held for payment of administrative expenses or other payments, or pending distribution to security holders of the Trustee or any wholly owned Subsidiary thereof, or pending contribution to the Company or any Subsidiary of the Trustee or the Company;

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(7) other tangible and intangible assets that, taken as a whole, are de minimis in relation to the net assets of the Company and its Subsidiaries; and

(8) equity interests in Qualified REIT Subsidiaries and limited liability companies (or other entities disregarded from their sole owner for U.S. federal income tax purposes, including wholly owned grantor trusts) whose assets consist solely of the assets described in clauses (1) through (7) above; provided that if such entity’s assets consist of assets described in clause (5) above, the Trustee shall have entered into an agreement with such entity that provides the Company with the full economic benefit, and requires the Company to assume the full economic burden, of the assets and business activities of such entity such that the economic effect of such agreement would be equivalent to ownership of such entity by the Company rather than by the Trustee (the assets described in clauses (1) through (8) of this Section 6.4.A , the “ Qualified Assets ”).

B. Repurchase of Shares and Other Securities . If the Trustee exercises its rights under its organizational documents to purchase Shares or otherwise elects to purchase from the holders thereof Shares, other equity securities of the Trustee, New Securities or Convertible Funding Debt, then the Trustee shall cause the Company to purchase from the Trustee (a) in the case of a purchase of Shares, that number of Units of the appropriate class equal to the product obtained by multiplying the number of Shares purchased by the Trustee times a fraction, the numerator of which is one and the denominator of which is the Conversion Factor, or (b) in the case of the purchase of any other securities on the same terms and for the same aggregate price that the Trustee purchased such securities.

C. Equity Incentive Plan . If, at any time or from time to time, the Trustee sells or otherwise issues Shares pursuant to any Equity Incentive Plan, the Trustee shall transfer or cause to be transferred the proceeds of the sale of such Shares, if any, to the Company as an additional Capital Contribution and the Company shall issue to the Trustee an amount of additional Units equal to the number of Shares so sold or issued divided by the Conversion Factor. If the Company or the Trustee acquires Shares as a result of the forfeiture of such Shares under any Equity Incentive Plan, then the Trustee shall cause the Company to cancel, without payment of any consideration to the Trustee, that number of Units of the appropriate class equal to the number of Shares so acquired, and, if the Company acquired such Shares, it shall transfer such Shares to the Trustee for cancellation.

D. Issuances of Shares and Other Securities . So long as the common shares of the Trustee are Publicly Traded, the Trustee shall not grant, award or issue any additional Shares (other than Shares issued pursuant to Section 7.6 hereof or pursuant to a dividend or distribution (including any share split) of Shares to all of its shareholders that results in an adjustment to the Conversion Factor pursuant to clause (i), (ii) or (iii) of the definition thereof), other equity securities of the Trustee, New Securities or Convertible Funding Debt unless (i) the Trustee shall cause, pursuant to Section 3.2.A hereof, the Company to issue to the Trustee, Units or rights, options, warrants or convertible or exchangeable securities of the Company having designations, preferences and other rights, all such that the economic interests are substantially the same as those of such additional Shares, other equity securities, New Securities or Convertible Funding Debt, as the case may be, and (ii) in exchange therefor, the Trustee transfers or otherwise causes

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to be transferred to the Company, as an additional Capital Contribution, the proceeds from the grant, award, or issuance of such additional Shares, other equity securities, New Securities or Convertible Funding Debt, as the case may be, or from the exercise of rights contained in such additional Shares, other equity securities, New Securities or Convertible Funding Debt, as the case may be (or, in the case of an acquisition described in Section 6.3.F in which all or a portion of the cash required to consummate such acquisition is to be obtained by the Trustee through an issuance of Shares described in Section 3.2 , the Trustee complies with such Section 6.3.F ). Without limiting the foregoing, the Trustee is expressly authorized to issue additional Shares, other equity securities, New Securities or Convertible Funding Debt, as the case may be, for less than fair market value, and the Trustee is expressly authorized, pursuant to Section 3.2.A hereof, to cause the Company to issue to the Trustee corresponding Units (for example, and not by way of limitation, the issuance of Shares and corresponding Units pursuant to a share purchase plan providing for purchases of Shares, either by employees or shareholders, at a discount from fair market value or pursuant to employee share options that have an exercise price that is less than the fair market value of the Shares, either at the time of issuance or at the time of exercise), as long as (a) the Trustee concludes in good faith that such issuance is in the interests of the Trustee and the Company and (b) the Trustee transfers all proceeds from any such issuance or exercise to the Company as an additional Capital Contribution.

E. Funding Debt . The Trustee or any wholly owned Subsidiary of the Trustee may incur a Funding Debt, including, without limitation, a Funding Debt that is convertible into Shares or otherwise constitutes a class of New Securities (“ Convertible Funding Debt ”), subject to the condition that the Trustee or such Subsidiary, as the case may be, lend to the Company the net proceeds of such Funding Debt; provided , however , that Convertible Funding Debt shall be issued in accordance with the provisions of Section 6.4.D above; and, provided further that, if the Trustee attempts to qualify as a REIT, the Trustee or such Subsidiary shall not be obligated to lend the net proceeds of any Funding Debt to the Company in a manner that would be inconsistent with the Trustee’s ability to remain qualified as a REIT. If the Trustee or such Subsidiary enters into any Funding Debt, the loan to the Company shall be on comparable terms and conditions, including interest rate, repayment schedule, costs and expenses and other financial terms, as are applicable with respect to or incurred in connection with such Funding Debt.

F. Capital Contributions of the Trustee . The Capital Contributions by the Trustee pursuant to Sections 6.4.C and 6.4.D will be deemed to equal the cash contributed by the Trustee plus, (i) in the case of cash contributions funded by an offering of any equity interests in or other securities of the Trustee, the offering costs attributable to the cash contributed to the Company to the extent not reimbursed pursuant to Section 6.3.C and (ii) in the case of Units issued pursuant to Section 6.4.C , an amount equal to the difference between the Value of the Shares sold pursuant to the Equity Incentive Plan and the net proceeds of such sale.

G. Tax Loans . The Trustee may in its sole and absolute discretion, cause the Company to make an interest free loan to the Trustee, provided that the proceeds of such loans are used to satisfy any tax liabilities of the Trustee.

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Section 6.5 Transactions with Affiliates

A. Transactions with Certain Affiliates . Except as expressly permitted by this Agreement with respect to any non-arms’ length transaction with an Affiliate, the Company shall not, directly or indirectly, sell, transfer or convey any property to, or purchase any property from, or borrow funds from, or lend funds to, any Unitholder or any Affiliate of the Company that is not also a Subsidiary of the Company, except pursuant to transactions that are determined in good faith by the Trustee to be on terms that are fair and reasonable.

B. Conflict Avoidance . The Trustee is expressly authorized to enter into, in the name and on behalf of the Company, a non-competition arrangement and other conflict avoidance agreements with various Affiliates of the Company and Trustee on such terms as the Trustee, in its sole and absolute discretion, believes is advisable.

C. Benefit Plans Sponsored by the Company . The Trustee in its sole and absolute discretion and without the approval of the Unitholders, may propose and adopt on behalf of the Company employee benefit plans funded by the Company for the benefit of employees of the Trustee, the Company, Subsidiaries of the Company or any Affiliate of any of them.

Section 6.6 Liability of the Trustee

A. Tax Consequences of Trustee and Unitholders . The Unitholders expressly acknowledge that the Trustee, in considering whether to dispose of any of the Company assets, shall take into account the tax consequences to the Trustee of any such disposition and shall have no liability whatsoever to the Company or any Unitholder for decisions that are based upon or influenced by such tax consequences. In addition, in exercising its authority under this Agreement with respect to other matters, the Trustee may, but shall be under no obligation to, take into account the tax consequences to any Unitholder (including the Trustee) of any action taken (or not taken) by the Trustee. No decision or action (or failure to act) contemplated by the preceding sentence shall constitute a breach of any duty owed to the Company or the Unitholders by law or equity, fiduciary or otherwise. The Trustee and the Company shall not have liability to any Unitholder for monetary or other damages or otherwise for losses sustained, liabilities incurred or benefits not derived by such Unitholder in connection with any taking or omission to take any such actions by the Trustee, except as set forth in Section 9.3 of the Declaration.

B. No Obligation to Consider Separate Interests of Unitholders or Shareholders . The Unitholders expressly acknowledge that the Trustee is acting on behalf of the Company, its equityholders (and, to the extent separate, the equityholders of the Trustee), and the equityholders of the Unitholders, collectively, and that, except as otherwise set forth herein, the Trustee is under no obligation to consider or give priority to the separate interests of the Unitholders (including, without limitation, the tax consequences to Unitholders or Assignees) in deciding whether to cause the Company to take (or decline to take) any actions. Any decisions or actions taken or not taken in accordance with the terms of this Agreement shall not constitute a breach of any duty owed to the Company or the Unitholders by law or equity, fiduciary or otherwise. The Trustee and the Company shall not have liability to any Unitholder for monetary or other damages or otherwise for losses sustained, liabilities incurred or benefits not derived by

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such Unitholder in connection with any taking or omission to take any such actions by the Trustee, except as set forth in Section 9.3 of the Declaration.

C. Actions of Agents . Subject to its obligations and duties as Trustee set forth in Section 6.1.A , the Trustee may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents. The Trustee shall not be liable to the Company or any Unitholder for any misconduct or negligence on the part of any such agent appointed by the Trustee in good faith.

D. Effect of Amendment . Notwithstanding any other provision contained herein, any amendment, modification or repeal of this Section 6.6 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Trustee’s liability to the Company and the Unitholders or any other Person bound by this Agreement under this Section 6.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

E. Limitations of Fiduciary Duty . Sections 6.1.B and Section 6.6 and any other Section of this Agreement limiting the liability of the Trustee and/or its trustees, directors and officers shall constitute an express limitation of any duties, fiduciary or otherwise, that they would owe the Company or the Unitholders if such duty would be imposed by any law, in equity or otherwise.

F. Reliance on this Agreement . To the extent that, at law or in equity, the Trustee in its capacity as a Unitholder, has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Unitholders, the Trustee shall not be liable to the Company or to any other Unitholder for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of the Trustee or any other Person under Maryland REIT Law or otherwise existing at law or in equity, are agreed by the Unitholders to replace such other duties and liabilities of the Trustee.

Section 6.7 Other Matters Concerning the Trustee

A. Reliance on Documents . The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.

B. Reliance on Advisors . The Trustee may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to matters which the Trustee reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.

C. Action Through Agents . The Trustee shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers and a duly appointed attorney or attorneys-in-fact. Each such attorney shall, to the extent provided by the

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Trustee in the power of attorney, have full power and authority to do and perform all and every act and duty that is permitted or required to be done by the Trustee hereunder.

D. Actions to Maintain REIT Status or Avoid Taxation of the Trustee . Notwithstanding any other provisions of this Agreement or the Act, if the Trustee attempts to qualify as a REIT, any action of the Trustee on behalf of the Company or any decision of the Trustee to refrain from acting on behalf of the Company undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the Trustee to qualify as a REIT or (ii) to allow the Trustee to avoid incurring any liability for taxes under Section 857 or 4981 of the Code, is expressly authorized under this Agreement and is deemed approved by all of the Unitholders.

Section 6.8 Reliance by Third Parties

Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Company shall be entitled to assume that the Trustee has full power and authority, without consent or approval of any other Unitholder or Person, to encumber, sell or otherwise use in any manner any and all assets of the Company, to enter into any contracts on behalf of the Company and to take any and all actions on behalf of the Company, and such Person shall be entitled to deal with the Trustee as if the Trustee were the Company’s sole party in interest, both legally and beneficially. Each Unitholder hereby waives any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the Trustee in connection with any such dealing, in each case except to the extent that such action imposes, or purports to impose, liability on the Unitholder. In no event shall any Person dealing with the Trustee or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the Trustee or its representatives. Each and every certificate, document or other instrument executed on behalf of the Company by the Trustee or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (i) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (ii) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Company, and (iii) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Company.

Section 6.9 Loans by Third Parties

The Company may incur Debt, or enter into similar credit, guarantee, financing or refinancing arrangements for any purpose (including, without limitation, in connection with any acquisition of property and any borrowings from, or guarantees of Debt of the Trustee or any of its Affiliates) with any Person upon such terms as the Trustee determines appropriate.

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ARTICLE VII
RIGHTS AND OBLIGATIONS OF UNITHOLDERS

Section 7.1 Limitation of Liability

The Unitholders, including the Trustee, in its capacity as a Unitholder, shall have no liability under this Agreement except as expressly provided in this Agreement, including Section 9.5 , or under the Act.

Section 7.2 Management of Business

No Unitholder or Assignee (other than the Trustee, any of its Affiliates, or any officer, director, employee, partner, agent or trustee of the Trustee, the Company or any of their Affiliates, in their capacity as such) shall take part in the operation, management or control (within the meaning of the Act) of the Company’s business, transact any business in the Company’s name or have the power to sign documents for or otherwise bind the Company. The transaction of any such business by the Trustee, any of its Affiliates or any officer, director, employee, partner, agent or trustee of the Trustee, the Company or any of their Affiliates, in their capacity as such, shall not affect, impair or eliminate the limitations on the liability of the Unitholders or Assignees under this Agreement.

Section 7.3 Outside Activities of Unitholders

Subject to Section 6.4 hereof, and subject to any agreements entered into pursuant to Section 6.5.B hereof and to any other agreements entered into by a Unitholder or its Affiliates with the Trustee, the Company or a Subsidiary, any Unitholder (other than the Trustee) and any officer, director, manager, employee, agent, trustee, Affiliate, Unitholder or shareholder of any Unitholder shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Company, including business interests and activities in direct or indirect competition with the Company. Neither the Company nor any Unitholders shall have any rights by virtue of this Agreement in any business ventures of any Unitholder, officer, director, manager, employee, agent, trustee, Affiliate, Unitholder, shareholder or Assignee of any Unitholder. None of the Unitholders (other than the Trustee) or any other Person shall have any rights by virtue of this Agreement or the limited liability relationship established hereby in any business ventures of any other Person (other than the Trustee to the extent expressly provided herein), and no Person (other than the Trustee) shall have any obligation pursuant to this Agreement to offer any interest in any such business venture to the Company, any Unitholder or any such other Person, even if such opportunity is of a character which, if presented to the Company, any Unitholder or such other Person, could be taken by such Person.

Section 7.4 Return of Capital

Except pursuant to the right of redemption set forth in Section 7.6 , no Unitholder shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent of distributions made pursuant to this Agreement or upon termination of the Company as provided herein. No Unitholder or Assignee shall have priority over any other Unitholder or Assignee either as to the return of Capital Contributions (except as permitted by Section 3.2.A ) or, except

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to the extent provided by Exhibit C or as permitted by Sections 3.2.A , 4.1.B(i) , 5.1.A and 5.1.B , or otherwise expressly provided in this Agreement, as to profits, losses, distributions or credits.

Section 7.5 Rights of Unitholders Relating to the Company

A. General . In addition to other rights provided by this Agreement or by the Act, and except as limited by Section 7.5.C , each Unitholder shall have the right, for a business purpose reasonably related to such Unitholder’s interest as a Unitholder in the Company, upon written demand with a statement of the purpose of such demand and at such Unitholder’s own expense (including such administrative charges as the Trustee may establish from time to time):

(1) to obtain a copy of the Company’s U.S. federal, state and local income tax returns for each Fiscal Year;

(2) to obtain a current list of the name and last known business, residence or mailing address of each Unitholder;

(3) to obtain a copy of this Agreement and the Declaration and all amendments thereto, together with executed copies of all powers of attorney pursuant to which this Agreement, the Declaration and all amendments thereto have been executed;

(4) to obtain true and full information regarding the amount of cash and a description and statement of the Agreed Value of any other property or services contributed by each Unitholder and which each Unitholder has agreed to contribute in the future, and the date on which each Unitholder became a Unitholder; and

(5) other information regarding the affairs of the Company as is just and reasonable.

B. Notice of Conversion Factor . The Company shall notify each Unitholder upon request (i) of the then current Conversion Factor and (ii) of any changes to the Conversion Factor.

C. Confidentiality . Notwithstanding any other provision of this Section 7.5.C , the Trustee may keep confidential from the Unitholders, for such period of time as the Trustee determines in its sole and absolute discretion, any information that (i) the Trustee reasonably believes to be in the nature of trade secrets or other information the disclosure of which the Trustee in good faith believes is not in the best interests of the Company or could damage the Company or its business or (ii) the Company or its business is required by law or by agreements with unaffiliated third parties to keep confidential, provided , however , that this Section 7.5.C shall not affect the notice requirements set forth in Section 7.5.B .

Section 7.6 Redemption Right

A. General .

(i) Subject to Section 7.6.C and Section 10.6.E , at any time on or after six months following the date on which a Class A Unit was issued (which, in the event of the transfer shall be deemed to be the date that the Class A Unit was issued to the original recipient

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thereof for purposes of this Section 7.6 ), the holder of such Class A Unit (if other than the Trustee or any Subsidiary of the Trustee) shall have the right (the “ Redemption Right ”) to require the Company to redeem such Unit, with such redemption to occur on the Specified Redemption Date and at a redemption price equal to and in the form of the Cash Amount to be paid by the Company. Any such Redemption Right shall be exercised pursuant to a Notice of Redemption delivered to the Company (with a copy to the Trustee) by the holder of the Units who is exercising the Redemption Right (the “ Redeeming Unitholder ”). A Unitholder may exercise the Redemption Right from time to time, without limitation as to frequency, with respect to part or all of the Units that it owns, as selected by the Unitholder, provided , however , that a Unitholder may not exercise the Redemption Right for fewer than one thousand (1,000) Units of a particular class unless such Redeeming Unitholder then holds fewer than one thousand (1,000) Units in that class, in which event the Redeeming Unitholder must exercise the Redemption Right for all of the Units held by such Redeeming Unitholder in that class, and provided further that, with respect to a Unitholder which is an entity, such Unitholder may exercise the Redemption Right for fewer than one thousand (1,000) Units without regard to whether or not such Unitholder is exercising the Redemption Right for all of the Units held by such Unitholder as long as such Unitholder is exercising the Redemption Right on behalf of one or more of its equity owners in respect of one hundred percent (100%) of such equity owners’ interests in such Unitholder.

(ii) The Redeeming Unitholder shall have no right with respect to any Units so redeemed to receive any distributions paid in respect of a Company Record Date for distributions in respect of Units after the Specified Redemption Date with respect to such Units.

(iii) The Assignee of any Unitholder may exercise the rights of such Unitholder pursuant to this Section 7.6 , and such Unitholder shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Unitholder’s Assignee. In connection with any exercise of such rights by such Assignee on behalf of such Unitholder, the Cash Amount shall be paid by the Company directly to such Assignee and not to such Unitholder.

(iv) Notwithstanding the foregoing, if the Trustee provides notice to the Unitholders pursuant to Section 7.5.B hereof, the Redemption Right shall be exercisable, without regard to whether the Units have been outstanding for any specified period, during the period commencing on the date on which the Trustee provides such notice and ending on the record date to determine shareholders eligible to receive such distribution or participate in such Extraordinary Transaction (or if none, ending on the date of consummation of such distribution or Extraordinary Transaction). If this subparagraph (iv) applies, the Specified Redemption Date is the date on which the Company and the Trustee receive notice of exercise of the Redemption Right, rather than ten (10) Business Days after receipt of the Notice of Redemption.

B. Trustee Assumption of Redemption Right .

(i) If a Unitholder has delivered a Notice of Redemption, the Trustee may, in its sole and absolute discretion (subject to the limitations on ownership and transfer of Shares set forth in the organizational documents of the Trustee), elect to assume directly and satisfy a Redemption Right. If such election is made by the Trustee, the Company shall determine

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whether the Trustee shall pay the Redemption Amount in the form of the Cash Amount or the Shares Amount. The Company’s decision regarding whether such payment shall be made in the form of the Cash Amount or the Shares Amount shall be made by the Trustee, in its capacity as the Trustee of the Company and in its sole and absolute discretion. Payment of the Redemption Amount in the form of Shares shall be in Shares duly authorized, validly issued, fully paid and nonassessable and if applicable, free and clear of any pledge, lien, encumbrance or restriction, other than those provided in the organizational documents of the Trustee, the Securities Act, relevant state securities or blue sky laws and any applicable registration rights agreement with respect to such Shares entered into by the Redeeming Unitholder, and shall bear a legend in form and substance determined by the Trustee. Upon such payment by the Trustee shall acquire the Units offered for redemption by the Redeeming Unitholder and shall be treated for all purposes of this Agreement as the owner of such Units. Unless the Trustee, in its sole and absolute discretion, shall exercise its right to assume directly and satisfy the Redemption Right, the Trustee shall not have any obligation to the Redeeming Unitholder or to the Company with respect to the Redeeming Unitholder’s exercise of the Redemption Right. If the Trustee shall exercise its right to assume directly and satisfy the Redemption Right in the manner described in the first sentence of this Section 7.6B and shall fully perform its obligations in connection therewith, the Company shall have no right or obligation to pay any amount to the Redeeming Unitholder with respect to such Redeeming Unitholder’s exercise of the Redemption Right, and each of the Redeeming Unitholder, the Company and the Trustee shall, for U.S. federal income tax purposes, treat the transaction between the Trustee and the Redeeming Unitholder as a sale of the Redeeming Unitholder’s Units to the Trustee.

(ii) If the Trustee determines that the Trustee shall pay the Redeeming Unitholder the Redemption Amount in the form of Shares, the total number of Shares to be paid to the Redeeming Unitholder in exchange for the Redeeming Unitholder’s Units shall be the applicable Shares Amount. If this amount is not a whole number of Shares, the Redeeming Unitholder shall be paid (i) that number of Shares which equals the nearest whole number less than such amount plus (ii) an amount of cash which the Trustee determines, in its reasonable discretion, to represent the fair value of the remaining fractional Share which would otherwise be payable to the Redeeming Unitholder.

(iii) Each Redeeming Unitholder agrees to execute such documents or provide such information or materials as the Trustee may reasonably require in connection with the issuance of Shares upon exercise of the Redemption Right.

C. Exceptions to Exercise of Redemption Right . Notwithstanding the provisions of Sections 7.6.A and 7.6.B , a Unitholder shall not be entitled to exercise the Redemption Right pursuant to Section 7.6.A if (but only as long as) the delivery of Shares to such Unitholder on the Specified Redemption Date would (i) be prohibited under the restrictions on the ownership or transfer of Shares in the organizational documents of the Trustee, (ii) be prohibited under applicable federal or state securities laws or regulations (in each case regardless of whether the Trustee would in fact assume and satisfy the Redemption Right), (iii) without limiting the foregoing, result in the Trustee’s Shares being owned by fewer than 100 persons (determined without reference to rules of attribution), (iv) without limiting the foregoing, result in the Trustee being “closely held” within the meaning of Section 856(h) of the Code or cause the Trustee to own, actually or constructively, ten percent (10%) or more of the ownership interests in a tenant

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of the Trustee, the Company or a subsidiary of the Company within the meaning of Section 856(d)(2)(B) of the Code, and (v) without limiting the foregoing, cause the acquisition of the Shares by the Redeeming Unitholder to be “integrated” with any other distribution of Shares for purposes of complying with the registration provision of the Securities Act, as amended. Notwithstanding the foregoing, the Trustee may, in its sole and absolute discretion, waive such prohibition set forth in this Section 7.6.C .

D. No Liens on Units Delivered for Redemption . Each Unitholder covenants and agrees that all Units delivered for redemption shall be delivered to the Company or the Trustee, as the case may be, free and clear of all liens; and, notwithstanding anything contained herein to the contrary, neither the Trustee nor the Company shall be under any obligation to acquire Units which are or may be subject to any liens. Each Unitholder further agrees that, if any federal, state or local tax is payable as a result of the transfer of its Units to the Company or the Trustee, such Unitholder shall assume and pay such transfer tax.

E. Additional Units; Modification of Holding Period . If the Company issues Units to any Additional Unitholder pursuant to Article III , the Trustee may make such revisions to this Section 7.6 as it determines are necessary to reflect the issuance of such Units (including setting forth any restrictions on the exercise of the Redemption Right with respect to such Units which differ from those set forth in this Agreement); provided , however , that no such revisions shall materially adversely affect the rights of any other Unitholder to exercise its Redemption Right without that Unitholder’s prior written consent. In addition, the Trustee may, with respect to any holder or holders of Units, at any time and from time to time, as it shall determine in its sole and absolute discretion, (i) reduce or waive the length of the period prior to which such holder or holders may not exercise the Redemption Right or (ii) reduce or waive the length of the period between the exercise of the Redemption Right and the Specified Redemption Date.

ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS

Section 8.1 Records and Accounting

The Trustee shall keep or cause to be kept at the principal office of the Company appropriate books and records with respect to the Company’s business, including, without limitation, all books and records necessary to provide to the Unitholders any information, lists and copies of documents required to be provided pursuant to Section 8.3 . Any records maintained by or on behalf of the Company in the regular course of its business may be kept on, or be in the form of, punch cards, magnetic tape, photographs, micrographics or any other information storage device, provided , however , that the records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Company shall be maintained, for financial and tax reporting purposes, on an accrual basis in accordance with generally accepted accounting principles.

Section 8.2 Fiscal Year

The Fiscal Year shall be the calendar year.

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Section 8.3 Reports

A. Annual Reports . If and to the extent that the Trustee mails its annual report to its shareholders, as soon as practicable, but in no event later than the date on which such reports are mailed, the Trustee shall cause to be mailed to each Unitholder an annual report, as of the close of the most recently ended Fiscal Year, containing financial statements of the Company, or of the Trustee (and, if different, the Trustee) if such statements are prepared on a consolidated basis with the Company, for such Fiscal Year, presented in accordance with generally accepted accounting principles, such statements to be audited by a nationally recognized “Big Four” firm of independent public accountants selected by the Trustee.

B. Quarterly Reports . If and to the extent that the Trustee mails quarterly reports to its shareholders, as soon as practicable, but in no event later than the date on which such reports are mailed, the Trustee shall cause to be mailed to each Unitholder a report containing unaudited financial statements, as of the last day of such fiscal quarter, of the Company, or of the Trustee (and, if different, the Trustee) if such statements are prepared on a consolidated basis with the Company, and such other information as may be required by applicable law or regulation, or as the Trustee determines to be appropriate.

C. The Trustee shall have satisfied its obligations under Sections 8.3.A and 8.3.B by (i) to the extent the Trustee or the Company is subject to periodic reporting requirements under the Exchange Act, filing the quarterly and annual reports required thereunder within the time periods provided for the filing of such reports, including any permitted extensions, or (ii) posting or making available the reports required by this Section 8.3 on the website maintained from time to time by the Company or the Trustee.

ARTICLE IX
TAX MATTERS

Section 9.1 Preparation of Tax Returns

The Trustee shall arrange for the preparation and timely filing of all returns of Company income, gains, deductions, losses and other items required of the Company for U.S. federal and state income tax purposes and shall use commercially reasonable efforts to furnish, within ninety (90) days of the close of each taxable year, the tax information reasonably required by Unitholders for federal and state income tax reporting purposes.

Section 9.2 Tax Elections

A. Except as otherwise provided herein, the Trustee shall, in its sole and absolute discretion, determine whether to make any available election pursuant to the Code (including the election under Section 754 of the Code). The Trustee shall have the right to seek to revoke any such election upon the Trustee’s determination in its sole and absolute discretion that such revocation is in the best interests of the Unitholders.

B. To the extent provided for in Treasury Regulations, revenue rulings, revenue procedures and/or other IRS guidance issued after the date hereof, the Company is hereby authorized to, and at the direction of the Trustee shall, elect a safe harbor under which the fair

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market value of any Units issued in connection with the performance of services after the effective date of such Treasury Regulations (or other guidance) will be treated as equal to the liquidation value of such Units (i.e., a value equal to the total amount that would be distributed with respect to such interests if the Company sold all of its assets for their fair market value immediately after the issuance of such Units, satisfied its liabilities (excluding any non-recourse liabilities to the extent the balance of such liabilities exceeds the fair market value of the assets that secure them) and distributed the net proceeds to the Unitholders under the terms of this Agreement). In the event that the Company makes a safe harbor election as described in the preceding sentence, each Unitholder hereby agrees to comply with all safe harbor requirements with respect to transfers of such Units while the safe harbor election remains effective.

Section 9.3 Tax Unitholder and Company Tax Audit Matters

A. General . The Trustee shall be the “Tax Unitholder” of the Company for federal, state and local income tax administrative or judicial proceedings (such administrative proceedings being referred to as a “tax audit” and such judicial proceedings being referred to as a “judicial review”) and is treated as the “tax matters partner” pursuant to Section 6231(a)(7) of the Code as in effect on November 1, 2015 (Subchapter C of Chapter 63 of the Code as in effect on November 1, 2015 referred to as the “ Current Partnership Audit Rules ”) and the “partnership representative” pursuant to Section 6223(a) of the Code as included in the Bipartisan Budget Act of 2015 (with the changes to Subchapter C of Chapter 63 of the Code as made by the Bipartisan Budget Act of 2015 referred to as the “ 2015 Budget Act Partnership Audit Rules ”). The Trustee is authorized to conduct all tax audits and judicial reviews for the Company. So long as Section 6223(c)(3) of the Current Partnership Audit Rules is in effect, upon receipt of notice from the IRS of the beginning of an administrative proceeding with respect to the Company, the Tax Unitholder shall furnish the IRS with the name, address, taxpayer identification number and profit interest of each of the Unitholders and any Assignees; provided , however , that such information is provided to the Company by the Unitholders.

B. Powers . The Tax Unitholder is authorized, but not required (and the Unitholders hereby consent to the Tax Unitholder taking the following actions):

(1) to elect out of the 2015 Budget Act Partnership Audit Rules, if available;

(2) to enter into any settlement with the IRS with respect to any tax audit or judicial review for the adjustment of Company items required to be taken into account by a Unitholder or the Company for income tax purposes, and in the settlement agreement the Tax Unitholder may expressly state that such agreement shall bind the Company and all Unitholders, except that so long as the Current Partnership Audit Rules are in effect, such settlement agreement shall not bind any Unitholder (i) who (within the time prescribed pursuant to the Code and Regulations under the Current Partnership Audit Rules) files a statement with the IRS providing that the Tax Unitholder shall not have the authority to enter into a settlement agreement on behalf of such Unitholder or (ii) who is a “notice partner” (as defined in Section 6231(a)(8) of the Current Partnership Audit Rules) or a Unitholder of a “notice group” (as defined in Section 6223(b)(2) of the Current Partnership Audit Rules);

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(3) to seek judicial review of any adjustment assessed by the IRS or any other tax authority, including the filing of a petition for readjustment with the Tax Court or the filing of a complaint for refund with the United States Claims Court or the District Court of the United States for the district in which the Company’s principal place of business is located;

(4) to intervene in any action brought by any other Unitholder for judicial review of a final adjustment;

(5) to file a request for an administrative adjustment with the IRS or other tax authority at any time and, if any part of such request is not allowed by the IRS or other tax authority, to file an appropriate pleading (petition or complaint) for judicial review with respect to such request;

(6) to enter into an agreement with the IRS or other tax authority to extend the period for assessing any tax which is attributable to any item required to be taken into account by a Unitholder for tax purposes, or an item affected by such item;

(7) to take any other action on behalf of the Unitholders of the Company in connection with any tax audit or judicial review proceeding, to the extent permitted by applicable law or regulations including, without limitation, the following actions to the extent that the 2015 Budget Act Partnership Audit Rules apply to the Company and its current and former Unitholders:

(a) electing to have the alternative method for the underpayment of taxes set forth in Section 6226 of the Code as included in the 2015 Budget Act Partnership Audit Rules apply to the Company and its current and former Unitholders; and

(b) for Company level assessments under Section 6225 of the Code, as included in the 2015 Budget Act Partnership Audit Rules, determining apportionment of responsibility for payment among the current or former Unitholders, setting aside reserves from Available Cash of the Company, withholding of distributions of Available Cash to the Unitholders, and requiring current or former Unitholders to make cash payments to the Company for their share of the Company level assessments; and

(8) to take any other action required or permitted by the Code and Regulations in connection with its role as Tax Unitholder.

The taking of any action and the incurring of any expense by the Tax Unitholder in connection with any such audit or proceeding referred to in clause (7) above, except to the extent required by law, is a matter in the sole and absolute discretion of the Tax Unitholder and the provisions relating to indemnification of the Trustee set forth in Section 7.8 shall be fully applicable to the Tax Unitholder in its capacity as such. In addition, the Trustee shall be entitled

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to indemnification set forth in Section 7.8 for any liability for tax imposed on the Company under the 2015 Budget Act Partnership Audit Rules that is collected from the Trustee.

C. Agreement to Provide Information . The current and former Unitholders agree to provide the following information and documentation to the Company and the Tax Unitholder to the extent that the 2015 Budget Act Partnership Audit Rules apply to the Company and its current or former Unitholders:

(1) information and documentation to determine and prove eligibility of the Company to elect out of the 2015 Budget Act Partnership Audit Rules;

(2) information and documentation to reduce the Company level assessment consistent with Section 6225(c) of the Code, as included in the 2015 Budget Act Partnership Audit Rules; and

(3) information and documentation to prove payment of the attributable liability under Section 6226 of the Code, as included in the 2015 Budget Act Partnership Audit Rules.

D. Authorization for Amendment . In addition to the foregoing, and notwithstanding any other provision of this Agreement, including, without limitation, Section 13.1 of this Agreement, the Trustee is authorized (without any requirement of the consent or approval of any other Unitholders) to make all such amendments to this Section 9.3 as it shall determine, in its sole judgment, to be necessary, desirable or appropriate to implement the 2015 Budget Act Partnership Audit Rules and any regulations, procedures, rulings, notices, or other administrative interpretations thereof promulgated by the U.S. Treasury Department.

E. Reimbursement . The Tax Unitholder shall receive no compensation for its services. All third party costs and expenses incurred by the Tax Unitholder in performing its duties as such (including legal and accounting fees and expenses) shall be borne by the Company. Nothing herein shall be construed to restrict the Company from engaging an accounting firm and/or law firm to assist the Tax Unitholder in discharging its duties hereunder, so long as the compensation paid by the Company for such services is reasonable.

F. Survival . The obligations of each Unitholder under this Section 9.3 shall survive such Unitholder’s withdrawal from the Company, and each Unitholder agrees to execute such documentation requested by the Company at the time of such Unitholder’s withdrawal from the Company to acknowledge and confirm such Unitholder’s continuing obligations under this Section 9.3 .

Section 9.4 Organizational Expenses

The Company shall elect to deduct expenses as provided in Section 709 of the Code.

Section 9.5 Withholding

Each Unitholder hereby authorizes the Company to withhold from or pay on behalf of or with respect to such Unitholder any amount of U.S. federal, state, local, or foreign taxes that the

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Trustee determines that the Company is required to withhold or pay with respect to any cash or property distributable, allocable or otherwise transferred to such Unitholder pursuant to this Agreement, including, without limitation, any taxes required to be withheld or paid by the Company pursuant to Section 1441, 1442, 1445, or 1446 of the Code. Any amount withheld with respect to a Unitholder pursuant to this Section 9.5 shall be treated as paid or distributed, as applicable, to such Unitholder for all purposes under this Agreement to the extent that the Company is contemporaneously making distributions against which such amount can be offset. Any amount paid on behalf of or with respect to a Unitholder, in excess of any such amount of contemporaneous distributions against which such amount paid can be offset, shall constitute a loan by the Company to such Unitholder, which loan shall be repaid by such Unitholder within fifteen (15) days after notice from the Trustee that such payment must be made unless (i) the Company withholds such payment from a distribution which would otherwise be made to the Unitholder or (ii) the Trustee determines, in its sole and absolute discretion, that such payment may be satisfied out of the available funds of the Company which would, but for such payment, be distributed to the Unitholder. Any amounts withheld pursuant to the foregoing clauses (i) or (ii) shall be treated as having been distributed or otherwise paid to such Unitholder. Each Unitholder hereby unconditionally and irrevocably grants to the Company a security interest in such Unitholder’s Units to secure such Unitholder’s obligation to pay to the Company any amounts required to be paid pursuant to this Section 9.5 . Any amounts payable by a Unitholder hereunder shall bear interest at the base rate on corporate loans at large United States money center commercial banks, as published from time to time in The Wall Street Journal, plus four (4) percentage points (but not higher than the maximum rate that may be charged under applicable law) from the date such amount is due (i.e., fifteen (15) days after demand) until such amount is paid in full. Each Unitholder shall take such actions as the Company or the Trustee shall request to perfect or enforce the security interest created hereunder.

ARTICLE X
TRANSFERS AND WITHDRAWALS

Section 10.1 Transfer

A. Definition . The term “transfer,” when used in this Article X with respect to a Units or a Unit, shall be deemed to refer to a transaction by which the Trustee purports to assign all or any part of its Trustee Interest to another Person or by which a Unitholder purports to assign all or any part of its Unitholder Interest to another Person, and includes a transfer, sale, merger, consolidation, combination, assignment, bequest, conveyance, devise, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition, whether voluntary or involuntary, by operation of law or otherwise. The term “transfer” when used in this Article X does not include any redemption or repurchase of Units by the Company from a Unitholder or acquisition of Units from a Unitholder by the Trustee pursuant to Section 7.6 or otherwise. When used in this Article X , the verb “transfer” shall have correlative meaning. No Units shall be subject to the claims of any creditor, any spouse (for alimony, support or otherwise), or to legal process, and may not be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement or consented to in writing by the Trustee, in its sole and absolute discretion.

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B. General . No Units shall be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article X . Any transfer or purported transfer of a Units not made in accordance with this Article X shall be null and void ab initio .

Section 10.2 Transfers and Withdrawals by Trustee

A. General . The Trustee shall not transfer any of its Units or withdraw from the Company except (i) in connection with a transaction permitted under Section 10.2.B , (ii) in connection with any merger (including a triangular merger), consolidation or other combination with or into another Person following the consummation of which the equity holders of the surviving entity are substantially identical to the shareholders of the Trustee, (iii) with the Consent of the Non-Trustees; (iv) to any Person that is, at the time of such transfer, an Affiliate of the Trustee that is controlled by the Trustee, including any Qualified REIT Subsidiary.

B. Extraordinary Transactions . Notwithstanding the restrictions set forth in Section 10.2.A or any other provision of this Agreement, the Trustee shall not engage in any merger (including, without limitation, a triangular merger), consolidation or other combination with or into another Person, sale of all or substantially all of its assets or any reclassification, recapitalization or other change in outstanding Shares (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination as described in the definition of Conversion Factor) (each, a “ Extraordinary Transaction ”), unless, in connection with such Extraordinary Transaction all Unitholders either will receive, or will have the right to receive, for each Unit cash, securities or other property in the same form as, and equal in amount to the product of the Conversion Factor and the greatest amount of, the cash, securities or other property paid to a holder of Shares, if any, corresponding to such Unit in consideration of one such Share at any time during the period from and after the date on which the Extraordinary Transaction is consummated; provided , however , that if in connection with the Extraordinary Transaction, a purchase, tender or exchange offer (a “ Tender Offer ”) shall have been made to and accepted by the holders of the percentage required for the approval of mergers under the organizational documents of the Trustee, each holder of Units shall receive, or shall have the right to receive, the greatest amount of cash, securities, or other property which such holder would have received had it exercised the Redemption Right and received Shares in exchange for its Units immediately prior to the expiration of such purchase, tender or exchange offer and had thereupon accepted such purchase, tender or exchange offer.

C. Creation of New Trustee . The Trustee shall not enter into an agreement or other arrangement providing for or facilitating the creation of a Trustee of the Company other than the Trustee, unless the successor Trustee (i) is a direct or indirect controlled Affiliate of the Trustee, and (ii) executes and delivers a counterpart to this Agreement in which such successor Trustee agrees to be fully bound by all of the terms and conditions contained herein that are applicable to the Trustee.

Section 10.3 Transfers by Unitholders

A. General . Except to the extent expressly permitted in Sections 10.3.B and 10.3.C or in connection with the exercise of a Redemption Right pursuant to Section 7.6, a Unitholder (other than the Trustee and the Trustee, in their capacities as Unitholders) may not transfer any

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portion of its Units, or any of such Unitholder’s rights as a Unitholder, without the prior written consent of the Trustee, which consent may be withheld in the Trustee’s sole and absolute discretion. Any transfer otherwise permitted under Sections 10.3.B and 10.3.C shall be subject to the conditions set forth in Sections 10.3.D and 10.3.E , and all permitted transfers shall be subject to Sections 10.4 , 10.5 and 10.6 .

B. Incapacitated Unitholder . If a Unitholder is subject to Incapacity, the executor, administrator, trustee, committee, guardian, conservator or receiver of such Unitholder’s estate shall have all the rights of a Unitholder, but not more rights than those enjoyed by other Unitholders, for the purpose of settling or managing the estate and such power as the Incapacitated Unitholder possessed to transfer all or any part of his, her or its interest in the Company. The Incapacity of a Unitholder, in and of itself, shall not dissolve or terminate the Company.

C. Permitted Transfers . Subject to Sections 10.3.D , 10.3.E , 10.4 , 10.5 and 10.6 , a Unitholder may transfer, with or without the consent of the Trustee, all or a portion of its Units (i) in the case of a Unitholder who is an individual, to a Unitholder of his Immediate Family, any trust formed for the benefit of himself and/or Unitholders of his Immediate Family, or any partnership, limited liability company, joint venture, corporation or other business entity comprised only of himself and/or Unitholders of his Immediate Family and entities the ownership interests in which are owned by or for the benefit of himself and/or Unitholders of his Immediate Family, (ii) in the case of a Unitholder which is a trust, to the beneficiaries of such trust, (iii) in the case of a Unitholder which is a partnership, limited liability company, joint venture, corporation or other business entity to which Units were transferred pursuant to clause (i) above, to its partners, owners or shareholders, as the case may be, who are Unitholders of the Immediate Family of or are actually the Person(s) who transferred Units to it pursuant to clause (i) above, (iv) in the case of a Unitholder which acquired Units as of the date hereof and which is a partnership, limited liability company, joint venture, corporation or other business entity, to its partners, owners, shareholders or Affiliates thereof, as the case may be, or the Persons owning the beneficial interests in any of its partners, owners or shareholders or Affiliates thereof (it being understood that this clause (iv) will apply to all of each Person’s Units whether the Units relating thereto were acquired on the date hereof or hereafter), (v) in the case of a Unitholder which is a partnership, limited liability company, joint venture, corporation or other business entity other than any of the foregoing described in clause (iii) or (iv), in accordance with the terms of any agreement between such Unitholder and the Company pursuant to which such Units was issued, (vi) pursuant to a gift or other transfer without consideration, (vii) pursuant to applicable laws of descent or distribution, (viii) to another Unitholder, and (ix) pursuant to a grant of security interest or other encumbrance thereof effectuated in a bona fide pledge transaction with a bona fide financial institution as a result of the exercise of remedies related thereto, subject to the provisions of Section 10.3.E hereof. A trust or other entity will be considered formed “for the benefit” of a Unitholder’s Immediate Family even though some other Person has a remainder interest under or with respect to such trust or other entity.

D. No Transfers Violating Securities Laws . The Trustee may prohibit any transfer of Units by a Unitholder unless it receives a written opinion of legal counsel (which opinion and counsel shall be reasonably satisfactory to the Company) to such Unitholder or, at the option of the Company, an opinion of legal counsel to the Company, to the effect that such transfer would

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not require filing of a registration statement under the Securities Act or would not otherwise violate any federal or state securities laws or regulations applicable to the Company or the Unit; provided that the Trustee may waive the receipt of any such opinion as a condition to permitting any such transfer.

E. No Transfers to Holders of Nonrecourse Liabilities . No pledge or transfer of any Units may be made to a lender to the Company or any Person who is related (within the meaning of Section 1.752-4(b) of the Regulations) to any lender to the Company whose loan otherwise constitutes a Nonrecourse Liability unless (i) the Trustee is provided prior written notice thereof and (ii) the lender enters into an arrangement with the Company and the Trustee to exchange or redeem for the Redemption Amount any Units in which a security interest is held simultaneously with the time at which such lender would be deemed to be a Unitholder in the Company for purposes of allocating liabilities to such lender under Section 752 of the Code.

Section 10.4 Substituted Unitholders

A. Consent of Trustee . No Unitholders shall have the right to substitute a transferee as a Unitholder in its place (including any transferees permitted by Section 10.3 ). The Trustee shall, however, have the right to consent to the admission of a transferee of the interest of a Unitholder pursuant to this Section 10.4 as a Substituted Unitholder, which consent may be given or withheld by the Trustee in its sole and absolute discretion. The Trustee’s failure or refusal to permit a transferee of any such interests to become a Substituted Unitholder shall not give rise to any cause of action against the Company, the Trustee or any Unitholder. The Trustee hereby grants its consent to the admission as a Substituted Unitholder to any bona fide financial institution that loans money or otherwise extends credit to a holder of Units and thereafter becomes the owner of such Units pursuant to the exercise by such financial institution of its rights under a pledge of such Units granted in connection with such loan or extension of credit.

B. Rights of Substituted Unitholder . A transferee who has been admitted as a Substituted Unitholder in accordance with this Article X shall have all the rights and powers and be subject to all the restrictions and liabilities of a Unitholder under this Agreement. The admission of any transferee as a Substituted Unitholder shall be conditioned upon the transferee executing and delivering to the Company an acceptance of all the terms and conditions of this Agreement (including, without limitation, the provisions of Section 14.11 ) and such other documents or instruments as may be required or advisable, in the sole and absolute discretion of the Trustee, to effect the admission, each in form and substance reasonably satisfactory to the Trustee.

C. Unitholder Registry . Upon the admission of a Substituted Unitholder, the Trustee shall update the Unitholder Registry in the books and records of the Company as it deems necessary to reflect such admission in the Unitholder Registry.

Section 10.5 Assignees

If the Trustee, in its sole and absolute discretion, does not consent to the admission of any permitted transferee under Section 10.3 as a Substituted Unitholder, as described in Section 10.4 , such transferee shall be considered an Assignee for purposes of this Agreement. An Assignee

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shall be entitled to all the rights of an assignee of an interest in a real estate investment trust under the Act, including the right to receive distributions from the Company and the share of Net Income, Net Loss, gain, loss and Recapture Income attributable to the Units assigned to such transferee, and shall have the rights granted to the Unitholders under Section 7.6 , but shall not be deemed to be a holder of Units for any other purpose under this Agreement, and shall not be entitled to vote such Units in any matter presented to the Unitholders for a vote (such Units being deemed to have been voted on such matter in the same proportion as all other Units held by Unitholders are voted). If any such transferee desires to make a further assignment of any such Units, such transferee shall be subject to all the provisions of this Article X to the same extent and in the same manner as any Unitholder desiring to make an assignment of Units.

Section 10.6 General Provisions

A. Withdrawal of Unitholder . No Unitholder may withdraw from the Company other than as a result of a permitted transfer of all of such Unitholder’s Units in accordance with this Article X and the transferee of such Units being admitted to the Company as a Substituted Unitholder, or pursuant to redemption of all of its Units under Section 7.6 .

B. Termination of Status as Unitholder . Any Unitholder who shall transfer all of its Units in a transfer permitted pursuant to this Article X where such transferee was admitted as a Substituted Unitholder or pursuant to redemption of all of its Units under Section 7.6 shall cease to be a Unitholder.

C. Timing of Transfers . Transfers pursuant to this Article X may only be made upon ten (10) Business Days prior notice to the Trustee, unless the Trustee otherwise agrees.

D. Allocations . If any Units is transferred during any the Fiscal Year in compliance with the provisions of this Article X or redeemed or transferred pursuant to Section 7.6 , Net Income, Net Loss, each item thereof and all other items attributable to such interest for such Fiscal Year shall be divided and allocated between the transferor Unitholder and the transferee Unitholder by taking into account their varying interests during the Fiscal Year in accordance with Section 706(d) of the Code and corresponding Regulations, using the interim closing of the books method (unless the Trustee, in its sole and absolute discretion, elects to adopt a daily, weekly, or a monthly proration period, in which event Net Income, Net Loss, each item thereof and all other items attributable to such interest for such Fiscal Year shall be prorated based upon the applicable method selected by the Trustee). Solely for purposes of making such allocations, at the discretion of the Trustee, each of such items for the calendar month in which the transfer or redemption occurs shall be allocated to the Person who is a Unitholder as of midnight on the last day of said month. All distributions of Available Cash attributable to any Unit with respect to which the Company Record Date is before the date of such transfer, assignment or redemption shall be made to the transferor Unitholder or the Redeeming Unitholder, as the case may be, and, in the case of a transfer or assignment other than a redemption, all distributions of Available Cash thereafter attributable to such Unit shall be made to the transferee Unitholder.

E. Additional Restrictions . Notwithstanding anything to the contrary herein, and in addition to any other restrictions on transfer contained herein or in any Equity Incentive Plan, including, without limitation, the provisions of Article VI and this Article X , in no event may

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any transfer or assignment of a Units by any Unitholder (including pursuant to Section 7.6 ) be made without the express consent of the Trustee, in its sole and absolute discretion, (i) to any person or entity who lacks the legal right, power or capacity to own a Units; (ii) in violation of applicable law; (iii) of any component portion of a Units, such as the Capital Account, or rights to distributions, separate and apart from all other components of a Units; (iv) if in the opinion of legal counsel to the Company there is a significant risk that such transfer would cause a termination of the Company for U.S. federal or state income tax purposes (except as a result of the redemption or exchange for Shares of all Units held by all Unitholders other than the Trustee, or any Subsidiary of either, or pursuant to a transaction expressly permitted under Section 10.2 ); (v) if in the opinion of counsel to the Company, there is a significant risk that such transfer would cause the Company to cease to be classified as a partnership for U.S. federal income tax purposes (except as a result of the redemption or exchange for Shares of all units held by all Unitholders other than the Trustee, or any Subsidiary of either, or pursuant to a transaction expressly permitted under Section 10.2 ); (vi) if such transfer requires the registration of such Units pursuant to any applicable federal or state securities laws; (vii) if such transfer is effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code or such transfer causes the Company to become a “publicly traded partnership,” as such term is defined in Section 469(k)(2) or Section 7704(b) of the Code ( provided , however , that, this clause (vii) shall not be the basis for limiting or restricting in any manner the exercise of the Redemption Right under Section 7.6 unless, and only to the extent that, outside tax counsel provides to the Trustee an opinion to the effect that, in the absence of such limitation or restriction, there is a significant risk that the Company will be treated as a “publicly traded partnership” and, by reason thereof, taxable as a corporation); (viii) if such transfer subjects the Company or the activities of the Company to regulation under the Investment Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as amended; (ix) if the Trustee attempts to qualify as a REIT and, in the opinion of legal counsel for the Company, there is a risk that such transfer would adversely affect the ability of the Trustee to continue to qualify as a REIT or subject the Trustee to any additional taxes under Section 857 and Section 4981 of the Code.

F. Avoidance of “Publicly Traded Partnership” Status . The Trustee shall monitor the transfers of interests in the Company to determine (i) if such interests are being traded on an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code and (ii) whether additional transfers of interests would result in the Company being unable to qualify for at least one of the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance subsequently published by the IRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code) (the “ Safe Harbors ”). The Trustee shall take all steps reasonably necessary or appropriate to prevent any trading of interests or any recognition by the Company of transfers made on such markets and, except as otherwise provided herein, to ensure that at least one of the Safe Harbors is met; provided , however , that the foregoing shall not authorize the Trustee to limit or restrict in any manner the right of any holder of a Unit to exercise the Redemption Right in accordance with the terms of Section 7.6 unless, and only to the extent that, outside tax counsel provides to the Trustee an opinion to the effect that, in the absence of such limitation or restriction, there is a significant risk that the Company will be treated as a “publicly traded partnership” and, by reason thereof, taxable as a corporation.

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ARTICLE XI
ADMISSION OF UNITHOLDERS

Section 11.1 Admission of a Successor Trustee

A successor to all of the Trustee’s Trustee Interest pursuant to Section 10.2 who is proposed to be admitted as a successor Trustee shall be admitted to the Company as the Trustee, effective upon such transfer. Any such successor shall carry on the business of the Company without dissolution. In such case, the admission shall be subject to such successor Trustee executing and delivering to the Company an acceptance of all of the terms and conditions of this Agreement and such other documents or instruments as may be required to effect the admission.

Section 11.2 Admission of Additional Unitholders

A. General . No Person shall be admitted as an Additional Unitholder without the consent of the Trustee, which consent shall be given or withheld in the Trustee’s sole and absolute discretion. A Person who makes a Capital Contribution to the Company in accordance with this Agreement shall be admitted to the Company as an Additional Unitholder only with the consent of the Trustee and only upon furnishing to the Trustee (i) evidence of acceptance in form satisfactory to the Trustee of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 14.11 and (ii) such other documents or instruments as may be required in the discretion of the Trustee to effect such Person’s admission as an Additional Unitholder. The admission of any Person as an Additional Unitholder shall become effective on the date upon which the name of such Person is recorded on the books and records of the Company, following the consent of the Trustee to such admission.

B. Allocations to Additional Unitholders . If any Additional Unitholder is admitted to the Company on any day other than the first day of a Fiscal Year, then Net Income, Net Loss, each item thereof and all other items allocable among Unitholders and Assignees for such Fiscal Year shall be allocated among such Additional Unitholder and all other Unitholders and Assignees by taking into account their varying interests during the Fiscal Year in accordance with Section 706(d) of the Code and corresponding Regulations, using the interim closing of the books method (unless the Trustee, in its sole and absolute discretion, elects to adopt a daily, weekly or monthly proration method, in which event Net Income, Net Loss, and each item thereof would be prorated based upon the applicable period selected by the Trustee). Solely for purposes of making such allocations, at the discretion of the Trustee, each of such items for the calendar month in which an admission of any Additional Unitholder occurs shall be allocated among all the Unitholders and Assignees including such Additional Unitholder. All distributions of Available Cash with respect to which the Company Record Date is before the date of such admission shall be made solely to Unitholders and Assignees other than the Additional Unitholder, and all distributions of Available Cash thereafter shall be made to all the Unitholders and Assignees including such Additional Unitholder.

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Section 11.3 Amendment of Agreement and Declaration

For the admission to the Company of any Unitholder, the Trustee shall take all steps necessary and appropriate to amend the records of the Company and, if necessary, to prepare as soon as practical an amendment of this Agreement (including an amendment to the Unitholder Registry) and, if required by law, shall prepare and file an amendment to the Declaration and may for this purpose exercise the power of attorney granted pursuant to Section 14.11 hereof.

ARTICLE XII
DISSOLUTION AND LIQUIDATION

Section 12.1 Dissolution

The Company shall not be dissolved by the admission of Substituted Unitholders or Additional Unitholders or by the admission of a successor Trustee in accordance with the terms of this Agreement. Upon the withdrawal of the Trustee, any successor Trustee shall continue the business of the Company. The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of any of the following (“ Liquidating Events ”):

(i) an event of withdrawal of the Trustee (other than an event of bankruptcy), unless within ninety (90) days after the withdrawal, the Consent of the Non-Trustee Unitholders to continue the business of the Company and to the appointment, effective as of the date of withdrawal, of a substitute Trustee is obtained;

(ii) an election to dissolve the Company made by the Trustee in its sole and absolute discretion;

(iii) entry of a decree of judicial dissolution of the Company pursuant to the provisions of the Act;

(iv) ninety (90) days after the sale of all or substantially all of the assets and properties of the Company for cash or for marketable securities; or

(v) a final and non-appealable judgment is entered by a court of competent jurisdiction ruling that the Trustee is bankrupt or insolvent, or a final and non-appealable order for relief is entered by a court with appropriate jurisdiction against the Trustee, in each case under any federal or state bankruptcy or insolvency laws as now or hereafter in effect, unless prior to or at the time of the entry of such order or judgment, the Consent of the Non-Trustee Unitholders holding more than 50% of the Percentage Interests represented by the Class A Units is obtained to continue the business of the Company and to the appointment, effective as of a date prior to the date of such order or judgment, of a substitute Trustee.

Section 12.2 Winding Up

A. General . Upon the occurrence of a Liquidating Event, the Company shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Unitholders. No Unitholder shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the

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Company’s business and affairs. The Trustee (or, if there is no remaining Trustee, any Person elected by a majority in interest of the Unitholders (the “ Liquidator ”)) shall be responsible for overseeing the winding up and dissolution of the Company and shall take full account of the Company’s liabilities and property and the Company property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the Trustee, include equity or other securities of the Trustee or any other entity) shall be applied and distributed in the following order:

(1) First, to the payment and discharge of all of the Company’s debts and liabilities to creditors other than the Unitholders;

(2) Second, to the payment and discharge of all of the Company’s debts and liabilities to the Trustee;

(3) Third, to the payment and discharge of all of the Company’s debts and liabilities to the Unitholders;

(4) Fourth, to the holders of Units that are entitled to any preference in distribution upon liquidation (including, without limitation, the Series D Preferred Units) in accordance with the rights of any such class or series of Units (and, within each such class or series, to each holder thereof pro rata based on its Percentage Interest in such class); and

(5) Fifth, the balance, if any, to the Unitholders, including, without limitation, the holders of the Vested LTIP Units, in proportion to their respective positive Capital Account balances, determined after giving effect to all contributions, distributions, and allocations for all periods.

The Trustee shall not receive any additional compensation for any services performed pursuant to this Article XII , other than reimbursement of its expenses as provided in Section 6.3 .

B. Deferred Liquidation . Notwithstanding the provisions of Section 12.2.A which require liquidation of the assets of the Company, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Company the Liquidator determines that an immediate sale of part or all of the Company’s assets would be impractical or would cause undue loss to the Unitholders, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Company (including to those Unitholders as creditors) or distribute to the Unitholders, in lieu of cash, in accordance with the provisions of Section 12.2.A , undivided interests in such Company assets as the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Unitholders, and shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt.

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Section 12.3 Compliance with Timing Requirements of Regulations; Restoration of Deficit Capital Accounts

A. Timing of Distributions . If the Company is “liquidated” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made under this Article XII to the Trustee and Unitholders who have positive Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2). In the discretion of the Trustee a pro rata portion of the distributions that would otherwise be made to the Trustee and Unitholders pursuant to this Article XII may be: (A) distributed to a trust established for the benefit of the Trustee and Unitholders for the purposes of liquidating Company assets, collecting amounts owed to the Company and paying any contingent or unforeseen liabilities or obligations of the Company or of the Trustee arising out of or in connection with the Company (in which case the assets of any such trust shall be distributed to the Trustee and Unitholders from time to time, in the reasonable discretion of the Trustee, in the same proportions as the amount distributed to such trust by the Company would otherwise have been distributed to the Trustee and Unitholders pursuant to this Agreement); or (B) withheld to provide a reasonable reserve for Company liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Company; provided , however , that such withheld amounts shall be distributed to the Trustee and Unitholders as soon as practicable.

B. Restoration of Deficit Capital Accounts Upon Liquidation of the Company . If any Unitholder has a deficit balance in its Capital Account (after giving effect to all contributions, distributions and allocations for all taxable years, including the year during which such liquidation occurs), such Unitholder shall have no obligation to make any contribution to the capital of the Company with respect to such deficit, and such deficit shall not be considered a debt owed to the Company or to any other Person for any purpose whatsoever, except as otherwise set forth in this Section 12.3.B , or as otherwise expressly agreed in writing by the affected Unitholder and the Company after the date hereof. Notwithstanding the foregoing, (i) if a DRO Unitholder has a deficit balance in its Capital Account (after giving effect to all contributions, distributions, and allocations for all Fiscal Years or portions thereof, including the year during which such liquidation occurs), such DRO Unitholder shall be obligated to make a contribution to the Company with respect to any such deficit balance in such DRO Unitholder’s Capital Account upon a liquidation of the Company in an amount equal to the lesser of such deficit balance or such DRO Unitholder’s DRO Amount; and (ii) the first sentence of this Section 12.3.B shall not apply with respect to any other Unitholder to the extent, but only to such extent, that such Unitholder previously has agreed in writing, with the consent of the Trustee, to undertake an express obligation to restore all or any portion of a deficit that may exist in its Capital Account upon a liquidation of the Company. No Unitholder shall have any right to become a DRO Unitholder, to increase its DRO Amount, or otherwise agree to restore any portion of any deficit that may exist in its Capital Account without the express written consent of the Trustee, in its sole and absolute discretion. Any contribution required of a Unitholder under this Section 12.3.B shall be made on or before the later of (i) the end of the Fiscal Year in which the interest is liquidated or (ii) the ninetieth (90th) day following the date of such liquidation. The proceeds of any contribution to the Company made by a DRO Unitholder with respect to a deficit in such DRO Unitholder’s Capital Account balance shall be treated as a Capital Contribution by such DRO Unitholder and the proceeds thereof shall be treated as assets of the Company to be applied as set forth in Section 12.2.A .

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C. Restoration of Deficit Capital Accounts Upon a Liquidation of a Unitholder’s Interest by Transfer . If a DRO Unitholder’s interest in the Company is “liquidated” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) (other than in connection with a liquidation of the Company) which term shall include a redemption by the Company of such DRO Unitholder’s interest upon exercise of the Redemption Right, and such DRO Unitholder is designated on Exhibit E as Part II DRO Unitholder, such DRO Unitholder shall be required to contribute cash to the Company equal to the lesser of (i) the amount required to increase its Capital Account balance as of such date to zero, or (ii) such DRO Unitholder’s DRO Amount. For this purpose, (i) the DRO Unitholder’s deficit Capital Account balance shall be determined by taking into account all contributions, distributions, and allocations for the portion of the Fiscal Year ending on the date of the liquidation or redemption, and (ii) solely for purposes of determining such DRO Unitholder’s Capital Account balance, the Trustee shall re-determine the Carrying Value of the Company’s assets on such date based upon the principles set forth in Sections 1.D.(3) and (4) of Exhibit B hereto, and shall take into account the DRO Unitholder’s allocable share of any Unrealized Gain or Unrealized Loss resulting from such redetermination in determining the balance of its Capital Account. The amount of any payment required hereunder shall be due and payable within the time period specified in the second to last sentence of Section 12.3.B .

D. Effect of the Death of a DRO Unitholder . After the death of a DRO Unitholder who is an individual, the executor of the estate of such DRO Unitholder may elect to reduce (or eliminate) the DRO Amount of such DRO Unitholder. Such elections may be made by such executor by delivering to the Trustee within two hundred and seventy (270) days of the death of such Unitholder, a written notice setting forth the maximum deficit balance in its Capital Account that such executor agrees to restore under this Section 12.3 , if any. If such executor does not make a timely election pursuant to this Section 12.3 (whether or not the balance in the applicable Capital Account is negative at such time), then the DRO Unitholder’s estate (and the beneficiaries thereof who receive distributions of Units therefrom) shall be deemed a DRO Unitholder with a DRO Amount in the same amount as the deceased DRO Unitholder. Any DRO Unitholder which itself is a partnership for U.S. federal income tax purposes may likewise elect, after the date of its partner’s death to reduce (or eliminate) its DRO Amount by delivering a similar notice to the Trustee within the time period specified above, and in the absence of any such notice the DRO Amount of such DRO Unitholder shall not be reduced to reflect the death of any of its partners.

Section 12.4 Rights of Unitholders

Except as otherwise provided in this Agreement, each Unitholder shall look solely to the assets of the Company for the return of its Capital Contributions and shall have no right or power to demand or receive property other than cash from the Company. Except as otherwise expressly provided in this Agreement, no Unitholder shall have priority over any other Unitholder as to the return of its Capital Contributions, distributions, or allocations.

Section 12.5 Notice of Dissolution

If a Liquidating Event occurs or an event occurs that would, but for provisions of an election or objection by one or more Unitholders pursuant to Section 12.1 , result in a dissolution

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of the Company, the Trustee shall, within thirty (30) days thereafter, provide written notice thereof to each of the Unitholders and to all other parties with whom the Company regularly conducts business (as determined in the discretion of the Trustee).

Section 12.6 Cancellation of Declaration

Upon the completion of the liquidation of the Company cash and property as provided in Section 12.2 , the Company shall be terminated and the Declaration and all qualifications of the Company as a foreign entity in jurisdictions other than the State of Maryland shall be canceled and such other actions as may be necessary to terminate the Company shall be taken.

Section 12.7 Reasonable Time for Winding Up

A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to Section 12.2 , to minimize any losses otherwise attendant upon such winding-up, and the provisions of this Agreement shall remain in effect among the Unitholders during the period of liquidation.

Section 12.8 Waiver of Partition

Each Unitholder hereby waives any right to partition of the Company property.

Section 12.9 Liability of Liquidator

The Liquidator shall be indemnified and held harmless by the Company in the same manner and to the same degree as an Indemnitee may be indemnified pursuant to Section 6.6 .

ARTICLE XIII
AMENDMENT OF DECLARATION; MEETINGS

Section 13.1 Amendments

A. General . The Trustee’s prior written consent shall be required to amend or waive any provisions of this Agreement. The Trustee, without consent of the Unitholders, may amend this Agreement in any respect; provided , however , that the following amendments shall require Consent of the Non-Trustee Unitholders:

(i) any amendment to Section 7.6 , its related defined terms or otherwise affecting the operation of the Conversion Factor or the Redemption Right, except as permitted pursuant to Section 7.6.E , in each case in a manner that adversely affects the Unitholders in any material respects;

(ii) any amendment to Article IV , its related defined terms or otherwise affecting the rights of the Unitholders to receive the distributions payable to them hereunder, other than in connection with the creation or issuance of new or additional Units pursuant to Section 3.2 and except as permitted pursuant to Section 3.2 and Section 4.5 , in each case in a manner that adversely affects the Unitholders in any material respects;

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(iii) any amendment to Article V , its related defined terms or otherwise that would materially alter the Company’s allocation of Profit and Loss to the Unitholders, other than in connection with the creation or issuance of new or additional Units pursuant to Section 3.2 and except as permitted pursuant to Section 5.2 ;

(iv) any amendment that would (x) convert a Unitholder’s interest in the Company into a Trustee’s interest, (y) modify the limited liability of a Unitholder, or (z) impose on the Unitholders any obligation to make additional Capital Contributions to the Company, or

(v) any amendment to Section 3.2.A (proviso only), Section 6.4 , Section 10.2 , Section 10.3 and this Section 13.1.A , in each case together with their related defined terms.

B. The Trustee shall notify the Unitholders in writing of any amendment or waiver not requiring the Consent of the Non-Trustee Unitholders made pursuant to Section 13.1.A in the next regular communication to the Unitholders or within ninety (90) days of such amendment, whichever is earlier. For any amendment or waiver requiring the Consent of the Non-Trustee Unitholders pursuant to Section 13.1.A , the Trustee shall seek the written Consent of the Non-Trustee Unitholders as set forth in Section 13.2 on such proposed amendments or waivers or shall call a meeting to vote thereon and to transact any other business that it may deem appropriate. For purposes of obtaining a written Consent, the Trustee may require a response within a reasonable specified time, but not less than seven (7) days, and failure to respond in such time period shall constitute a vote in favor of the recommendation of the Trustee. Any such proposed amendment or waiver shall be adopted and be effective as an amendment or waiver hereto if it is approved by the Trustee and receives the Consent of the Non-Trustee Unitholders, as applicable, in accordance with Section 13.1.A .

C. Amendment and Restatement of Unitholder Registry Not an Amendment . Notwithstanding anything in this Article XIII or elsewhere in this Agreement to the contrary, any amendment and restatement of the Unitholder Registry by the Trustee to reflect events or changes otherwise authorized or permitted by this Agreement shall not be deemed an amendment of this Agreement and may be done at any time and from time to time, as determined by the Trustee without the Consent of the Non-Trustee Unitholders and without any notice requirement.

Section 13.2 Meetings of the Unitholders

A. General . Neither the Company nor the Trustee shall be required to call or hold any meeting of the Unitholders, whether periodic or otherwise. Meetings of the Unitholders may be called by the Trustee. The call shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Unitholders not less than seven (7) days nor more than thirty (30) days prior to the date of such meeting. Unitholders may vote in person or by proxy at such meeting. Whenever the vote or Consent of Unitholders is permitted or required under this Agreement, such vote or Consent may be given at a meeting of Unitholders or may be given in accordance with the procedure prescribed in Section 13.1.B . Except as otherwise expressly provided in this Agreement, the Consent of holders of Units representing a majority of the Percentage Interests of the Class A Units shall control (including Class A Units held by the Trustee).

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B. Actions Without a Meeting . Except as otherwise expressly provided by this Agreement, any action required or permitted to be taken at a meeting of the Unitholders may be taken without a meeting if a written consent setting forth the action so taken is signed by Unitholders holding Units representing more than fifty percent (50%) (or such other percentage as is expressly required by this Agreement) of the Percentage Interest of the Class A Units (including Class A Units held by the Trustee). Such consent may be in one instrument or in several instruments, and shall have the same force and effect as a vote of Unitholders. Such consent shall be delivered to the Trustee. An action so taken shall be deemed to have been taken at a meeting held on the date on which written consents from the Unitholders holding the required Percentage Interest of the Class A Units have been filed with the Trustee.

C. Proxy . Each Unitholder may authorize any Person or Persons to act for him by proxy on all matters in which a Unitholder is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Every proxy must be signed by the Unitholder or its attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Unitholder executing it, such revocation to be effective upon the Company’s receipt of written notice thereof.

D. Votes . On matters on which Unitholders are entitled to vote, each Unitholder shall have the number of votes equal to the number of Class A Units held.

E. Conduct of Meeting . Each meeting of Unitholders shall be conducted by the Trustee or such other Person as the Trustee may appoint pursuant to such rules for the conduct of the meeting as the Trustee or such other Person deem appropriate.

F. Record Date . The Trustee may set, in advance, the Company Record Date for the purpose of determining the Unitholders (i) entitled to Consent to any action, (ii) entitled to receive notice of or vote at any meeting of the Unitholders or (iii) in order to make a determination of Unitholders for any other proper purpose. Such date, in any case, (x) shall not be prior to the close of business on the day the Company Record Date is determined and shall be not more than ninety (90) days and, in the case of a meeting of the Unitholders, not less than ten (10) days, before the date on which the meeting is to be held or Consent is to be given and (y) shall be, with respect to the determination of the existence of Company Approval, the record date established by the Trustee for the approval of its shareholders for the event constituting an Extraordinary Transaction. If no record date is fixed, the record date for the determination of Unitholders entitled to notice of or to vote at a meeting of the Unitholders shall be at the close of business on the day on which the notice of the meeting is sent, and the record date for any other determination of Unitholders shall be the effective date of such Unitholder action, distribution or other event. When a determination of the Unitholders entitled to vote at any meeting of the Unitholders has been made as provided in this section, such determination shall apply to any adjournment thereof.

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ARTICLE XIV
GENERAL PROVISIONS

Section 14.1 Addresses and Notice

Any notice, demand, request or report required or permitted to be given or made to a Unitholder or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written communication (including, but not limited to, via e-mail) to the Unitholder or Assignee at the address set forth in the Unitholder Registry or such other address as the Unitholders shall notify the Trustee in writing.

Section 14.2 Titles and Captions

All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to “Articles” “Sections” and “Exhibits” are to Articles, Sections and Exhibits of this Agreement.

Section 14.3 Pronouns and Plurals

Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.

Section 14.4 Further Action

The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.

Section 14.5 Binding Effect

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.

Section 14.6 Creditors

Other than as expressly set forth herein with regard to any Indemnitee, none of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.

Section 14.7 Waiver

No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.

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Section 14.8 Counterparts

This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto.

Section 14.9 Applicable Law

This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Maryland, without regard to the principles of conflicts of law.

Section 14.10 Invalidity of Provisions

If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.

Section 14.11 Power of Attorney

A. General . Each Unitholder and each Assignee who accepts Units (or any rights, benefits or privileges associated therewith) is deemed to irrevocably constitute and appoint the Trustee, any Liquidator and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:

(1) execute, swear to, acknowledge, deliver, file and record in the appropriate public offices (a) all certificates, documents and other instruments (including, without limitation, this Agreement and the Declaration and all amendments or restatements thereof) that the Trustee or any Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Company as a real estate investment trust in the State of Maryland and in all other jurisdictions in which the Company may conduct business or own property, (b) all instruments that the Trustee or any Liquidator deem appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms, (c) all conveyances and other instruments or documents that the Trustee or any Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Company pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation, (d) all instruments relating to the admission, withdrawal, removal or substitution of any Unitholder pursuant to, or other events described in, Article X , XI or XII hereof or the Capital Contribution of any Unitholder and (e) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges of Units; and

(2) execute, swear to, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the sole and absolute discretion of the Trustee or any Liquidator, to make, evidence, give,

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confirm or ratify any vote, consent, approval, agreement or other action which is made or given by the Unitholders hereunder or is consistent with the terms of this Agreement or appropriate or necessary, in the sole and absolute discretion of the Trustee or any Liquidator, to effectuate the terms or intent of this Agreement.

Nothing contained in this Section 14.11 shall be construed as authorizing the Trustee or any Liquidator to amend this Agreement except in accordance with Article XIII hereof or as may be otherwise expressly provided for in this Agreement.

B. Irrevocable Nature . The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, in recognition of the fact that each of the Unitholders will be relying upon the power of the Trustee or any Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Company, and it shall survive and not be affected by the subsequent Incapacity of any Unitholder or Assignee and the transfer of all or any portion of such Unitholder’s or Assignee’s Units and shall extend to such Unitholder’s or Assignee’s heirs, successors, assigns and personal representatives. Each such Unitholder or Assignee hereby agrees to be bound by any representation made by the Trustee or any Liquidator, acting in good faith pursuant to such power of attorney; and each such Unitholder or Assignee hereby waives any and all defenses which may be available to contest, negate or disaffirm the action of the Trustee or any Liquidator, taken in good faith under such power of attorney. Each Unitholder or Assignee shall execute and deliver to the Trustee or the Liquidator, within fifteen (15) days after receipt of the Trustee’s or Liquidator’s request therefor, such further designation, powers of attorney and other instruments as the Trustee or the Liquidator, as the case may be, deems necessary to effectuate this Agreement and the purposes of the Company.

Section 14.12 Entire Agreement

This Agreement contains the entire understanding and agreement among the Unitholders with respect to the subject matter hereof and supersedes any prior written oral understandings or agreements among them with respect thereto.

Section 14.13 No Rights as Shareholders

Nothing contained in this Agreement shall be construed as conferring upon the holders of the Units any rights whatsoever as shareholders of the Trustee, including, without limitation, any right to receive dividends or other distributions made to shareholders of the Trustee, or to vote or to consent or receive notice as shareholders in respect to any meeting of shareholders for the election of trustees (or directors, if applicable) of the Trustee or any other matter.

Section 14.14 Limitation to Preserve REIT Status

If the Trustee attempts to qualify as a REIT, to the extent that any amount paid or credited to the Trustee or any of its officers, trustees, employees or agents pursuant to Section 6.3 would constitute gross income to the Trustee for purposes of Section 856(c)(2) or 856(c)(3) of the Code (a “ Trustee Payment ”) then, notwithstanding any other provision of this

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Agreement, the amount of such Trustee Payment for any Fiscal Year shall not exceed the lesser of:

(i) an amount equal to the excess, if any, of (a) 4% of the Trustee’s total gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Trustee Payments) for the Fiscal Year which is described in subsections (A) though (I) of Section 856(c)(2) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(2) of the Code) derived by the Trustee from sources other than those described in subsections (A) through (H) of Section 856(c)(2) of the Code (but not including the amount of any Trustee Payments); or

(ii) an amount equal to the excess, if any of (a) 24% of the Trustee’s total gross income (but not including the amount of any Trustee Payments) for the Fiscal Year which is described in subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the amount of gross income (within the meaning of Section 856(c)(3) of the Code but not including the amount of any Trustee Payments) derived by the Trustee from sources other than those described in subsections (A) through (I) of Section 856(c)(3) of the Code;

provided , however , that Trustee Payments in excess of the amounts set forth in subparagraphs (i) and (ii) above may be made if the Trustee, as a condition precedent, obtains an opinion of tax counsel that the receipt of such excess amounts would not adversely affect the Trustee’s ability to qualify as a REIT. To the extent Trustee Payments may not be made in a given Fiscal Year due to the foregoing limitations, such Trustee Payments shall carry over and be treated as arising in the following year; provided , however , that such amounts shall not carry over for more than five Fiscal Years, and if not paid within such five Fiscal Year period, shall expire; and provided further that (i) as Trustee Payments are made, such payments shall be applied first to carry over amounts outstanding, if any, and (ii) with respect to carry over amounts for more than one Fiscal Year, such payments shall be applied to the earliest Fiscal Year first.

[Remainder of page intentionally left blank, signature page follows]

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EXHIBIT A

FORM OF UNITHOLDER REGISTRY

Effective as of [ ], 2016

	CLASS A UNITS / LTIP UNITS
Name and Address of Unitholder	Class A Units	LTIP Units	Capital Account Balance	Percentage Interest
TRUSTEE :
EQUITY COMMONWEALTH Two North Riverside Plaza Suite 2100 Chicago, IL 60606 Attn: General Counsel Facsimile: (312) 464-2999

UNITHOLDER :
[ · ] Attn: Facsimile:

[NAME]

[NAME]

TOTAL UNITS	Class A Units	LTIP Units		100.000	%

	PREFERRED UNITS
Name and Address of Unitholder	Preferred Units (Series D) / Percentage Interest	Preferred Units (Series [ ]) / Percentage Interest	Preferred Units (Series [ ]) / Percentage Interest	Preferred Units (Series [ ]) / Percentage Interest
TRUSTEE :
EQUITY COMMONWEALTH Two North Riverside Plaza Suite 2100 Chicago, IL 60606 Attn: General Counsel Facsimile: (312) 464-2999	[ ] / 100%

Exhibit A- 1

EXHIBIT B

CAPITAL ACCOUNT MAINTENANCE

1. Capital Accounts of the Unitholders

A. The Company shall maintain for each Unitholder a separate Capital Account in accordance with the rules of Regulations Section l.704-l(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital Contributions and any other deemed contributions made by such Unitholder to the Company pursuant to this Agreement and (ii) all items of Company income and gain (including income and gain exempt from tax) computed in accordance with Section 1.B hereof and allocated to such Unitholder pursuant to Section 5.1 of the Agreement and this Exhibit B , and decreased by (x) the amount of cash or Agreed Value of property actually distributed or deemed to be distributed to such Unitholder pursuant to this Agreement and (y) all items of Company deduction and loss computed in accordance with Section 1.B hereof and allocated to such Unitholder pursuant to Section 5.1 of the Agreement and this Exhibit B .

B. For purposes of computing Net Income, Net Loss or the amount of any item of income, gain, loss and deduction to be reflected in the Unitholders’ Capital Accounts, unless otherwise specified in this Agreement, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for federal income tax purposes determined in accordance with Section 703(a) of the Code (for this purpose all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments:

(1) Except as otherwise provided in Regulations Section 1.704-1(b)(2)(iv)(m), the computation of Net Income, Net Loss and all items of income, gain, loss and deduction shall be made without regard to any adjustments to the adjusted bases of the assets of the Company pursuant to Sections 754 of the Code, provided , however , that the amounts of any adjustments to the adjusted bases of the assets of the Company made pursuant to Section 734 of the Code as a result of the distribution of property by the Company to a Unitholder (to the extent that such adjustments have not previously been reflected in the Unitholders’ Capital Accounts) shall be reflected in the Capital Accounts of the Unitholders in the manner and subject to the limitations prescribed in Regulations Section l.704-1(b)(2)(iv)(m)(4).

(2) The computation of Net Income, Net Loss and all items of income, gain, loss and deduction shall be made without regard to the fact that items described in Sections 705(a)(l)(B) or 705(a)(2)(B) of the Code are not includible in gross income or are neither currently deductible nor capitalized for federal income tax purposes.

(3) Any income, gain or loss attributable to the taxable disposition of any Company property shall be determined as if the adjusted basis of such property as of such date of disposition were equal in amount to the Company’s Carrying Value with respect to such property as of such date.

Exhibit B- 1

(4) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or shorter period.

(5) In the event the Carrying Value of any Company asset is adjusted pursuant to Section 1.D hereof, the amount of any such adjustment shall be taken into account as gain or loss from the disposition of such asset.

(6) Any items specially allocated under Section 1 of Exhibit C to the Agreement hereof shall not be taken into account.

C. A transferee (including any Assignee) of a Unit shall succeed to a pro rata portion of the Capital Account of the transferor in accordance with Regulations Section 1.704-1(b)(2)(iv)(l).

D. (1) Consistent with the provisions of Regulations Section 1.704-1(b)(2)(iv)(f), and as provided in Section 1.D(2) , the Carrying Values of all Company assets shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Company property, as of the times of the adjustments provided in Section 1.D(2) hereof, as if such Unrealized Gain or Unrealized Loss had been recognized on an actual sale of each such property and allocated pursuant to Section 5.1 of the Agreement.

(2) Such adjustments shall be made as of the following times: (a) immediately prior to the acquisition of an additional interest in the Company by any new or existing Unitholder in exchange for more than a de minimis Capital Contribution; (b) immediately prior to the distribution by the Company to a Unitholder of more than a de minimis amount of property as consideration for an interest in the Company (including, for the avoidance of doubt, a special distribution); (c) immediately prior to the liquidation of the Company within the meaning of Regulations Section 1.704-l(b)(2)(ii)(g); (d) immediately prior to the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing Unitholder acting in a Unitholder capacity or by a new Unitholder acting in a Unitholder capacity or in anticipation of becoming a Unitholder (including the issuance of any LTIP Units); and (e) at such other times as permitted or required under Regulations; provided , however , that adjustments pursuant to clauses (a), (b), (d) and (e) (to the extent not required by Regulations) above shall be made only if the Trustee determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Unitholders in the Company.

(3) In accordance with Regulations Section 1.704- l(b)(2)(iv)(e), the Carrying Value of Company assets distributed in kind shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Company property, as of the time any such asset is distributed.

(4) In determining Unrealized Gain or Unrealized Loss for purposes of this Exhibit B , the aggregate cash amount and fair market value of all Company assets (including cash or cash equivalents) shall be determined by the Trustee using such reasonable method of

Exhibit B- 2

valuation as it may adopt, or in the case of a liquidating distribution pursuant to Article XII of the Agreement, shall be determined and allocated by the Liquidator using such reasonable methods of valuation as it may adopt. The Trustee, or the Liquidator, as the case may be, shall allocate such aggregate fair market value among the assets of the Company in such manner as it determines in its sole and absolute discretion to arrive at a fair market value for individual properties.

E. The provisions of the Agreement (including this Exhibit B and the other Exhibits to the Agreement) relating to the maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations. In the event the Trustee shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, without limitation, debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company, the Trustee, or the Unitholders) are computed in order to comply with such Regulations, the Trustee may make such modification without regard to Article XIII of the Agreement, provided that it is not likely to have a material effect on the amounts distributable to any Person pursuant to Article XII of the Agreement upon the dissolution of the Company. The Trustee also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Unitholders and the amount of Company capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Regulations Section l.704-l(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section l.704-1(b).

2. No Interest

No interest shall be paid by the Company on Capital Contributions or on balances in Unitholders’ Capital Accounts.

3. No Withdrawal

No Unitholder shall be entitled to withdraw any part of its Capital Contribution or Capital Account or to receive any distribution from the Company, except as provided in Articles III, IV, VI and XII of the Agreement.

Exhibit B- 3

EXHIBIT C

SPECIAL ALLOCATION RULES

1. Special Allocation Rules.

Notwithstanding any other provision of the Agreement or this Exhibit C , the following special allocations shall be made in the following order:

A. Minimum Gain Chargeback . Notwithstanding the provisions of Section 5.1 of the Agreement or any other provisions of this Exhibit C , if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Unitholder shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Unitholder’s share of the net decrease in Company Minimum Gain, as determined under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Unitholder pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.704-2(f)(6). This Section 1.A is intended to comply with the minimum gain chargeback requirements in Regulations Section 1.704-2(f) and for purposes of this Section 1.A only, each Unitholder’s Adjusted Capital Account Deficit shall be determined prior to any other allocations pursuant to Section 5.1 of the Agreement or this Exhibit C with respect to such Fiscal Year and without regard to any decrease in Unitholder Minimum Gain during such Fiscal Year.

B. Unitholder Minimum Gain Chargeback . Notwithstanding any other provision of Section 5.1 of this Agreement or any other provisions of this Exhibit C (except Section 1.A hereof), if there is a net decrease in Unitholder Minimum Gain attributable to Unitholder Nonrecourse Debt during any Fiscal Year, each Unitholder who has a share of the Unitholder Minimum Gain attributable to such Unitholder Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Unitholder’s share of the net decrease in Unitholder Minimum Gain attributable to such Unitholder Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Trustee and Unitholder pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.704-2(i)(4). This Section 1.B is intended to comply with the minimum gain chargeback requirement in such Section of the Regulations and shall be interpreted consistently therewith. Solely for purposes of this Section 1.B , each Unitholder’s Adjusted Capital Account Deficit shall be determined prior to any other allocations pursuant to Section 5.1 of the Agreement or this Exhibit C with respect to such Fiscal Year, other than allocations pursuant to Section 1.A hereof.

C. Qualified Income Offset . In the event any Unitholder unexpectedly receives any adjustments, allocations or distributions described in Regulations Sections 1.704-l(b)(2)(ii)(d)(4), l.704-1(b)(2)(ii)(d)(5), or 1.704-l(b)(2)(ii)(d)(6), and after giving effect to the allocations required under Sections 1.A and 1.B hereof with respect to such Fiscal Year, such Unitholder has

Exhibit C- 1

an Adjusted Capital Account Deficit, items of Company income and gain (consisting of a pro rata portion of each item of Company income, including gross income and gain for the Fiscal Year) shall be specifically allocated to such Unitholder in an amount and manner sufficient to eliminate, to the extent required by the Regulations, its Adjusted Capital Account Deficit created by such adjustments, allocations or distributions as quickly as possible. This Section 1.C is intended to constitute a “qualified income offset” under Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

D. Gross Income Allocation . In the event that any Unitholder has an Adjusted Capital Account Deficit at the end of any Fiscal Year (after taking into account allocations to be made under the preceding paragraphs hereof with respect to such Fiscal Year), each such Unitholder shall be specially allocated items of Company income and gain (consisting of a pro rata portion of each item of Company income, including gross income and gain for the Fiscal Year) in an amount and manner sufficient to eliminate, to the extent required by the Regulations, its Adjusted Capital Account Deficit.

E. Nonrecourse Deductions . Except as may otherwise be expressly provided by the Trustee pursuant to Section 3.2 of the Agreement with respect to other classes of Units, Nonrecourse Deductions for any Fiscal Year shall be allocated only to the Unitholders holding Class A Units in accordance with their respective Percentage Interests. If the Trustee determines in its good faith discretion that the Company’s Nonrecourse Deductions must be allocated in a different ratio to satisfy the safe harbor requirements of the Regulations promulgated under Section 704(b) of the Code, the Trustee is authorized, upon notice to the Unitholders, to revise the prescribed ratio for such Fiscal Year to the numerically closest ratio which would satisfy such requirements.

F. Unitholder Nonrecourse Deductions . Any Unitholder Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Unitholder who bears the economic risk of loss with respect to the Unitholder Nonrecourse Debt to which such Unitholder Nonrecourse Deductions are attributable in accordance with Regulations Sections 1.704-2(b)(4) and 1.704-2(i).

G. Adjustments Pursuant to Code Section 734 and Section 743 . To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Regulations Section 1.704-l(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Unitholders in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Regulations.

H. Forfeiture Allocations . Upon a forfeiture of any unvested Units by any Unitholder, gross items of income, gain, loss or deduction shall be allocated to such Unitholder if and to the extent required by final Treasury Regulations promulgated after the date hereof (or, if final Treasury Regulations have not yet been promulgated, to the extent determined by the Trustee, in its sole discretion, as necessary) to ensure that allocations made with respect to all unvested Units are recognized under Code Section 704(b).

Exhibit C- 2

I. The allocations set forth in clauses (A) through (F) of this Section 1 (“ Regulatory Allocations ”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Section 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Section 5.1 of the Agreement, the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Unitholders so that, to the extent possible without violating the requirements giving rise to the Regulatory Allocations, the net amount of such allocations of other items and the Regulatory Allocations to each Unitholder shall be equal to the net amount that would have been allocated to each such Unitholder if the Regulatory Allocations had not been made.

2. Allocations for Tax Purposes

A. Except as otherwise provided in this Section 2 , for federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Unitholders in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 5.1 of the Agreement and Section 1 of this Exhibit C .

B. In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or Adjusted Property, items of income, gain, loss and deduction shall be allocated for federal income tax purposes among the Unitholders as follows:

(1) (a) In the case of a Contributed Property, such items attributable thereto shall be allocated among the Unitholders consistent with the principles of Section 704(c) of the Code to take into account the variation between the Section 704(c) Value of such property and its adjusted basis at the time of contribution (taking into account Section 2.C of this Exhibit C ); and

(b) any item of Residual Gain or Residual Loss attributable to a Contributed Property shall be allocated among the Unitholders in the same manner as its correlative item of “book” gain or loss is allocated pursuant to Section 5.1 of the Agreement and Section 1 of this Exhibit C .

(2) (a) In the case of an Adjusted Property, such items shall

(i) first, be allocated among the Unitholders in a manner consistent with the principles of Section 704(c) of the Code to take into account the Unrealized Gain or Unrealized Loss attributable to such property and the allocations thereof pursuant to Exhibit B ;

(ii) second, in the event such property was originally a Contributed Property, be allocated among the Unitholders in a manner consistent with Section 2.B(1) of this Exhibit C ; and

(b) any item of Residual Gain or Residual Loss attributable to an Adjusted Property shall be allocated among the Unitholders in the same manner its correlative item of “book” gain or loss is allocated pursuant to Section 5.1 of the Agreement and Section 1 of this Exhibit C .

Exhibit C- 3

(3) all other items of income, gain, loss and deduction shall be allocated among the Unitholders the same manner as their correlative item of “book” gain or loss is allocated pursuant to Section 5.1 of the Agreement and Section 1 of this Exhibit C .

C. To the extent Regulations promulgated pursuant to Section 704(c) of the Code permit a Company to utilize alternative methods to eliminate the disparities between the Carrying Value of property and its adjusted basis, the Trustee shall, subject to any agreements between the Company and a Unitholder, have the authority to elect the method to be used by the Company and such election shall be binding on all Unitholders.

Exhibit C- 4

EXHIBIT D

NOTICE OF REDEMPTION

The undersigned hereby irrevocably (i) redeems Units in EQC Operating Trust in accordance with the terms of the Declaration of Trust of EQC Operating Trust, as amended, and the Redemption Right referred to therein, (ii) surrenders such Units and all right, title and interest therein and (iii) directs that the Cash Amount or Shares Amount (as determined by the Trustee) deliverable upon exercise of the Redemption Right be delivered to the address specified below, and if Shares are to be delivered, such Shares be registered or placed in the name(s) and at the address(es) specified below. The undersigned hereby represents, warrants, and certifies that the undersigned (a) has marketable and unencumbered title to such Units, free and clear of the rights of or interests of any other person or entity, (b) has the full right, power and authority to redeem and surrender such Units as provided herein and (c) has obtained the consent or approval of all persons or entities, if any, having the right to consult or approve such redemption and surrender.

Dated:			Name of Unitholder:



			(Signature of Unitholder)



			(Street Address)



			(City) (State) (Zip Code)


			Signature Guaranteed by:

Exhibit D- 1

IF SHARES ARE TO BE ISSUED, ISSUE TO:


Name:


Social Security or tax identifying number:

Exhibit D- 2

EXHIBIT E

FORM OF DRO REGISTRY

PART I DRO UNITHOLDERS	DRO AMOUNT


PART II DRO UNITHOLDERS

Exhibit E- 1

EXHIBIT F

NOTICE OF ELECTION BY UNITHOLDER TO CONVERT
LTIP UNITS INTO CLASS A UNITS

The undersigned holder of LTIP Units hereby irrevocably (i) elects to convert LTIP Units in EQC Operating Trust (the “Company”) into Class A Units in accordance with the terms of the Declaration of Trust of the Company, as amended; and (ii) directs that any cash in lieu of Class A Units that may be deliverable upon such conversion be delivered to the address specified below. The undersigned hereby represents, warrants, and certifies that the undersigned (a) has title to such LTIP Units, free and clear of the rights or interests of any other person or entity other than the Company; (b) has the full right, power, and authority to cause the conversion of such LTIP Units as provided herein; and (c) has obtained the consent to or approval of all persons or entities, if any, having the right to consent or approve such conversion.

Dated:	Name of Holder:



	(Signature of Holder)



	(Street Address)

	(City)	(State)	(Zip Code)

	Signature Guaranteed by:

Exhibit F- 1

ATTACHMENT A

SERIES D PREFERRED UNITS

A. Defined Terms . Capitalized terms used but not defined herein shall have the meanings set forth for such terms in Annex A to the Trustee’s Declaration of Trust, to which this Attachment A is attached.

B. Designation and Number . A series of Units, designated as Series D Cumulative Convertible Preferred Units (“ Series D Preferred Units ”), is hereby established. The number of Series D Preferred Units shall be 4,915,196. The Series D Preferred Units shall be issued to the Trustee and are intended to correspond to the outstanding 6-1/2% Series D Cumulative Convertible Preferred Shares, $0.01 par value per share, of the Trustee (the “ Series D Shares ”), with such preferences, rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption as described in the Articles Supplementary dated October 10, 2006 (the “ Series D Articles Supplementary ”) with respect to the Series D Preferred Shares.

C. Rank . The Series D Preferred Units will, with respect to rights to receive distributions and to participate in distributions or payments upon liquidation, dissolution or winding up of the Trust, rank (a) senior to the Class A Units and any other Units of the Trust, now or hereafter issued and outstanding, the terms of which provide that such Units rank, as to distributions and upon liquidation, dissolution or winding up of the Trust, junior to such Series D Preferred Units (“ Junior Units ”), (b) on a parity with any Units of the Trust, now or hereafter issued and outstanding, the terms of which specifically provide that such Units rank on a parity with the Series D Preferred Units (“ Parity Units ”); and (c) junior to all Units of the Trust, now or hereafter issued and outstanding, the terms of which specifically provide that such Units rank senior to the Series D Preferred Units.

D. Distributions .

(i) Subject to the rights of holders of any Units ranking senior to the Series D Preferred Units as to the payment of distributions, the holder(s) of the outstanding Series D Preferred Units, shall be entitled to receive, when, as and if authorized by the Trust, out of funds legally available for payment of distributions, cumulative cash distributions at the rate of 6.50% per annum of the $25 liquidation preference of each Series D Preferred Unit (equivalent to $1.625 per annum per Series D Preferred Unit).

(ii) Distributions on each outstanding Series D Preferred Unit shall be cumulative from and including the date of original issuance and shall be payable quarterly in equal amounts in arrears on the 15th of each February, May, August and November, commencing on [November 15, 2016](1) (each such day being hereinafter called a “ Series D Distribution Payment Date ”) at the then applicable annual rate; provided, however, that if any Series D Distribution Payment Date falls on any day other

(1) To correspond to the first payment day following closing of the UPREIT Conversion.

Attachment A- 1

than a Business Day (as defined in the Series D Articles Supplementary), the distribution which would otherwise have been payable on such Series D Distribution Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Series D Distribution Payment Date, and no interest or other sums shall accrue on the amount so payable from such Series D Distribution Payment Date to such next succeeding Business Day. Each distribution is payable to holders of record as they appear on the books and records of the Trust at the close of business on the record date, which shall be a date designated by the Trust for the payment of distributions that is not more than 60 days nor less than 10 days prior to the applicable distribution payment date. Distributions shall accrue from and including the date of original issue or the most recent Series D Distribution Payment Date to and excluding the next following Series D Dividend Payment Date , whether or not there shall be funds legally available for the payment of such distributions, whether the Trust has earnings or whether such distributions are authorized. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on the Series D Preferred Units that may be in arrears. Holders of the Series D Preferred Units shall not be entitled to any distributions, whether payable in cash, property or stock, in excess of full cumulative distributions, as herein provided, on the Series D Preferred Units. Distributions payable on the Series D Preferred Units for any period greater or less than a full distribution period will be computed on the basis of a 360-day year consisting of twelve 30-day months. After full cumulative distributions on the Series D Preferred Units have been paid or declared and funds therefor set aside for payment with respect to a distribution period, the holders of Series D Preferred Units will not be entitled to any further distributions with respect to that distribution period.

(iii) No distributions on the Series D Preferred Units shall be authorized and declared by the Trust or paid or set apart for payment by the Trust at such time as the terms and provisions of any agreement of the Trust, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof, or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.

(iv) So long as any Series D Preferred Units are outstanding, no distributions, except as described in the immediately following sentence, shall be authorized and declared or paid or set apart for payment on any series or class or classes of Parity Units for any period unless full cumulative distributions have been declared and paid or are contemporaneously declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Series D Preferred Units for all prior distribution periods. When distributions are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all distributions authorized and declared upon the Series D Preferred Units and all distributions authorized and declared upon any other series or class or classes of Parity Units shall be authorized and declared ratably in proportion to the respective amounts of distributions accrued and unpaid on the Series D Preferred Units and such Parity Units.

Attachment A- 2

(v) So long as any Series D Preferred Units are outstanding, no distributions (other than distributions paid solely in Junior Units of, or in options, warrants or rights to subscribe for or purchase, Junior Units) shall be authorized and declared or paid or set apart for payment or other distribution authorized and declared or made upon Junior Units, nor shall any Junior Units be redeemed, purchased or otherwise acquired (other than (i) a redemption, purchase or other acquisition of Units made for purposes of and in compliance with requirements of an employee incentive or benefit plan of the Trustee or any subsidiary, (ii) a conversion into or exchange for Junior Units, (iii) redemptions for the purpose of preserving the Trustee’s qualification as a REIT (as defined in the Agreement), or (iv) redemptions or exchanges of Units pursuant to the terms of the Agreement), for any consideration (or any monies to be paid to or made available for a sinking fund for the redemption of any such units) by the Trust, directly or indirectly (except by conversion into or exchange for Junior Units), unless in each case full cumulative distributions on all outstanding shares of Series D Preferred Units and any Parity Units at the time such distributions are payable shall have been paid or set apart for payment for all past distribution periods with respect to the Series D Preferred Units and all past distribution periods with respect to such Parity Units.

(vi) Any distribution payment made on the Series D Preferred Units shall first be credited against the earliest accrued but unpaid distribution due with respect to such Units which remains payable.

(vii) Except as provided herein, the Series D Preferred Units shall not be entitled to participate in the earnings or assets of the Trust.

(viii) As used herein, the term “distribution” does not include distributions payable solely in Junior Units on Junior Units, or in options, warrants or rights to holders of Junior Units to subscribe for or purchase any Junior Units.

E. Liquidation Preference.

(i) In the event of any liquidation, dissolution or winding up of the Trust, whether voluntary or involuntary, before any payment or distribution of the assets of the Trust shall be made to or set apart for the holders of Junior Units, the holders of the Series D Preferred Units shall be entitled to receive $25 per Unit (the “ Liquidation Preference ”) plus an amount per Unit equal to all distributions (whether or not earned or declared) accrued and unpaid thereon to, but not including, the date of final distribution to such holders; but such holders of the Series D Preferred Units shall not be entitled to any further payment. If, upon any such liquidation, dissolution or winding up of the Trust, the assets of the Trust, or proceeds thereof, distributable among the holders of the Series D Preferred Units shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any other Parity Units, then such assets, or the proceeds thereof, shall be distributed among the holders of such Series D Preferred Units and any such other Parity Units ratably in accordance with the respective amounts that would be payable on such Series D Preferred Units and any such other Parity Units if all amounts payable thereon were paid in full. For the purposes of this Section E , none of

Attachment A- 3

(i) a consolidation or merger of the Trust with one or more entities, (ii) a statutory Unit exchange or (iii) a sale, lease, conveyance or transfer of all or substantially all of the Trust’s assets shall be deemed to be a liquidation, dissolution or winding up, voluntary or involuntary, of the Trust.

(ii) Subject to the rights of the holders of Parity Units, upon any liquidation, dissolution or winding up of the Trust, after payment shall have been made in full to the holders of the Series D Preferred Units, as provided in this Section E , any series or class or classes of Junior Units shall, subject to any respective terms and provisions applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Series D Preferred Units shall not be entitled to share therein.

F. Redemption . In connection with the redemption by the Trustee of any Series D Preferred Shares, the Trust shall provide cash to the Trustee for such purpose which shall be equal to the redemption price (as set forth in the Series D Articles Supplementary), plus any accrued and unpaid dividends on the Series D Preferred Shares (whether or not declared), to, but not including, the redemption date, and one Series D Preferred Unit shall be concurrently redeemed with respect to each share of Series D Preferred Shares so redeemed by the Trustee. From and after the applicable redemption date, the Series D Preferred Units so redeemed shall no longer be outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series D Preferred Units shall cease. Any Series D Preferred Units so redeemed may be reissued to the Trustee at such time as the Trustee reissues a corresponding number of shares of Series D Preferred Shares so redeemed or repurchased, in exchange for the contribution by the Trustee to the Trust of the proceeds from such reissuance.

G. Voting Rights . Except as required by applicable law or the Agreement, the holder of the Series D Preferred Units, as such, shall have no voting rights.

H. Conversion . The Series D Preferred Units are not convertible into or exchangeable for any other property or securities of the Trust, except as provided herein.

(i) In the event of a conversion of any Series D Preferred Shares into common shares of beneficial interest of the Trustee, par value $0.01 per share (“ Shares ”), whether by the Trustee or by the holder of such Series D Preferred Shares, in accordance with the Series D Articles Supplementary, immediately upon conversion of such Series D Preferred Shares, a number of the Series D Preferred Units equal to the number of such Series D Preferred Shares being converted shall convert into a number of Class A Units equal to the number of Shares into which such Series D Preferred Shares were converted. In the event of a conversion of any Series D Preferred Shares into consideration other than Shares in accordance with the Series D Articles Supplementary, the Trust shall retire a number of Series D Preferred Units equal to the number of shares of Series D Preferred Shares converted into such other form of consideration. In the event of a conversion of the Series D Preferred Shares into Shares, to the extent the Trustee is required to pay cash in lieu of fractional shares of Shares pursuant to the Series D Articles Supplementary in connection with such conversion, the Trust shall distribute an equal amount of cash to the Trustee in lieu of fractional Class A Units.

Attachment A- 4

(ii) Following any such conversion retirement by the Trust pursuant to this Section H , the Trustee shall make such revisions to the Agreement as it determines are necessary to reflect such conversion.

I. Restriction on Ownership . The Series D Preferred Units shall be owned and held solely by the Trustee.

J. Allocations . Allocations of the Trust’s items of income, gain, loss and deduction shall be allocated pro rata among holders of Series D Preferred Units in accordance with Article V of the Agreement.

Attachment A- 5

Exhibit 10.2

CONTRIBUTION AND ASSIGNMENT AGREEMENT

THIS CONTRIBUTION AND ASSIGNMENT AGREEMENT (this “ Agreement ”) is entered into as of November 10, 2016 by and among Equity Commonwealth, a Maryland real estate investment trust (“ EQC ”) and EQC Operating Trust, a Maryland real estate investment trust (“ EQC Operating Trust ”).

WHEREAS, EQC is the sole shareholder of EQC Operating Trust; and

WHEREAS, in respect of its ownership interest in EQC Operating Trust, EQC desires to transfer and contribute to EQC Operating Trust certain interests owned by EQC (the “ Contributed Interests ”) in certain of EQC’s subsidiaries (the “ Contributed Entities ”), which Contributed Interests and Contributed Entities are set forth on Schedule A attached hereto (such contribution, the “ Contribution ”).

NOW THEREFORE, in consideration of the foregoing and the mutual covenants and conditions set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

1. Contribution and Assignment . Upon the terms and subject to the conditions set forth in this Agreement, EQC hereby contributes, grants, sells, assigns, transfers, conveys and delivers to EQC Operating Trust all of EQC’s rights, title and interest under, in and to the Contributed Interests. EQC Operating Trust hereby accepts the foregoing contribution, grant, sale, assignment, transfer, conveyance and delivery of the Contributed Interests by EQC to EQC Operating Trust.

2. Assumption of Liabilities . EQC Operating Trust expressly assumes and agrees to perform, satisfy and discharge, in each case in due course, all of the liabilities and obligations of EQC relating to the Contributed Interests arising or accruing from and after the date hereof, and EQC is hereby released from any further liabilities or obligations accruing from and after the date hereof with respect to the Contributed Interests. EQC and EQC Operating Trust hereby agree that EQC Operating Trust shall be admitted as a shareholder, stockholder or member, as applicable, of each of the Contributed Entities and hereby agrees to be bound by and perform and observe all of the obligations, covenants, terms and conditions to be performed or observed under the applicable organizational documents of each of the Contributed Entities.

3. Representations and Warranties of EQC. EQC represents and warrants to EQC Operating Trust as follows:

(a) Organization, Power and Authority . EQC is a real estate investment trust duly organized, validly existing and in good standing under the laws of the State of Maryland and has the requisite power and authority to carry on its business as it is now being conducted.

(b) Authority Relative to this Agreement . EQC has taken all action necessary to authorize the execution, delivery and performance of this Agreement by EQC and no other proceedings on the part of EQC are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions hereunder.

(c) Binding Obligation . EQC has caused this Agreement to be duly and validly executed and delivered by EQC to EQC Operating Trust, and this Agreement constitutes a valid and binding agreement of EQC, enforceable against EQC in accordance with its terms.

(d) Ownership . EQC represents and warrants that it is the sole legal and beneficial owner of the Contributed Interests.

(e) Title to Contributed Interests. EQC hereby conveys, and EQC Operating Trust hereby acquires, title to the Contributed Interests on an “as-is” basis.

5. Representations and Warranties of EQC Operating Trust . EQC Operating Trust represents and warrants to EQC as follows:

(a) Organization, Power and Authority . EQC Operating Trust is a real estate investment trust duly organized, validly existing and in good standing under the laws of the State of Maryland and has the requisite power and authority to carry on its business as it is now being conducted.

(b) Authority Relative to this Agreement . EQC Operating Trust has taken all action necessary to authorize the execution, delivery and performance of this Agreement by EQC Operating Trust and no other proceedings on the part of EQC Operating Trust are necessary to authorize the execution and delivery of this Agreement and the consummation of the transactions hereunder.

(c) Binding Obligation . EQC Operating Trust has caused this Agreement to be duly and validly executed and delivered by EQC Operating Trust to EQC, and this Agreement constitutes a valid and binding agreement of EQC Operating Trust, enforceable against EQC Operating Trust in accordance with its terms.

6. Further Assurances . Each of the parties hereto shall execute and deliver all such other and further instruments and documents and take or cause to be taken all such other and further actions any other party may reasonably request in order to effect the transactions contemplated by this Agreement.

7. Amendment; Waiver . Any amendment hereto shall be effective only if 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.

8. Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which shall constitute one and the same instrument.

9. Applicable Law . This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Maryland, without giving effect to the conflict of law provisions thereof.

10. Successors and Assigns . This Agreement shall be binding upon, and shall be enforceable by and inure to the benefit of, the parties hereto and their 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 void and of no effect.

11. Severability . If any provision of this Agreement, or the application thereof, is for any reason held to any extent to be invalid or unenforceable, the remainder of this Agreement and application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto.

[ Signature page follows ]

IN WITNESS WHEREOF, each of the parties hereto has executed and delivered this Agreement, or caused the Agreement to be duly executed and delivered on its behalf, as of the date first set forth above.

	EQUITY COMMONWEALTH


	By:	/s/ Adam S. Markman
	Name:	Adam S. Markman
	Title:	Executive Vice President, Chief Financial Officer and Treasurer


	EQC OPERATING TRUST


	By:	/s/ Orrin S. Shifrin
	Name:	Orrin S. Shifrin
	Title:	Executive Vice President, General Counsel and Secretary

[Signature page to Contribution and Assignment Agreement]

SCHEDULE A

CONTRIBUTED ENTITIES:	CONTRIBUTED INTERESTS:
Equity Commonwealth Management LLC	99	%
Equity Commonwealth LLC	100	%
EQC Securities LLC	100	%
EQC TRS, Inc.	100	%
Blue Dog Properties Trust	100	%
HRPT Lenexa Properties Trust	100	%
Diamond Head LLC	99	%
CWH Vineyard Properties Trust	100	%
Oscar Properties Trust	100	%

Exhibit 10.3

Loan Number: 1002588

Execution Version

AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of November 10, 2016

by and among

EQC OPERATING TRUST,

as Borrower,

THE FINANCIAL INSTITUTIONS PARTY HERETO

AND THEIR ASSIGNEES UNDER SECTION 12.5.,

as Lenders,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent

WELLS FARGO SECURITIES, LLC,

J.P. MORGAN SECURITIES LLC

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Joint Lead Arrangers and Joint Lead Bookrunners for the Revolving Credit Facility and the 5-Year Term Loan Facility

WELLS FARGO SECURITIES LLC,

as Sole Lead Arranger and Sole Bookrunner for the 7-Year Term Loan Facility,

JPMORGAN CHASE BANK, N.A. and BANK OF AMERICA, N.A.,

as Syndication Agents for the Revolving Credit Facility and the 5-Year Term Loan Facility,

and

ROYAL BANK OF CANADA, BMO HARRIS BANK, N.A., COMPASS BANK, REGIONS BANK and U.S. BANK NATIONAL ASSOCIATION,

as Documentation Agents for the Revolving Credit Facility and the 5-Year Term Loan Facility

and

CAPITAL ONE, NATIONAL ASSOCIATION AND PNC BANK, NATIONAL ASSOCIATION,

as Documentation Agents for the 7-Year Term Loan Facility

TABLE OF CONTENTS

Article I. Definitions	1

Section 1.1. Definitions	1
Section 1.2. General; References to Central Time	31
Section 1.3. Financial Attributes of Parent	31

Article II. Credit Facility	32

Section 2.1. Revolving Loans	32
Section 2.2. Term Loans	33
Section 2.3. Bid Rate Loans	33
Section 2.4. Letters of Credit	36
Section 2.5. Swingline Loans	41
Section 2.6. Rates and Payment of Interest on Loans	43
Section 2.7. Number of Interest Periods	44
Section 2.8. Repayment of Loans	44
Section 2.9. Prepayments	44
Section 2.10. Continuation	45
Section 2.11. Conversion	46
Section 2.12. Notes	46
Section 2.13. Voluntary Reductions of Revolving Commitments	47
Section 2.14. Extension of Revolving Termination Date	47
Section 2.15. Expiration Date of Letters of Credit Past Revolving Commitment Termination	48
Section 2.16. Amount Limitations	48
Section 2.17. Increase in Revolving Commitments and Term Loans	48
Section 2.18. Funds Transfer Disbursements	50

Article III. Payments, Fees and Other General Provisions	50

Section 3.1. Payments	50
Section 3.2. Pro Rata Treatment	51
Section 3.3. Sharing of Payments, Etc.	51
Section 3.4. Several Obligations	52
Section 3.5. Fees	52
Section 3.6. Computations	53
Section 3.7. Usury	53
Section 3.8. Statements of Account	54
Section 3.9. Defaulting Lenders	54
Section 3.10. Taxes	58

Article IV. Yield Protection, Etc.	61

Section 4.1. Additional Costs; Capital Adequacy	61
Section 4.2. Suspension of LIBOR Loans and LIBOR Margin Loans	63
Section 4.3. Illegality	64
Section 4.4. Compensation	64
Section 4.5. Treatment of Affected Loans	65
Section 4.6. Affected Lenders	65
Section 4.7. Change of Lending Office	66
Section 4.8. Assumptions Concerning Funding of LIBOR Loans	66

Article V. Conditions Precedent	66

Section 5.1. Conditions Precedent to Effectiveness	66
Section 5.2. Conditions Precedent to All Loans and Letters of Credit	68
Section 5.3. Post- Closing Deliveries	69

Article VI. Representations and Warranties	69

Section 6.1. Representations and Warranties	69
Section 6.2. Survival of Representations and Warranties, Etc.	74

Article VII. Affirmative Covenants	75

Section 7.1. Preservation of Existence and Similar Matters	75
Section 7.2. Compliance with Applicable Law	75
Section 7.3. Maintenance of Property	75
Section 7.4. Conduct of Business	75
Section 7.5. Insurance	75
Section 7.6. Payment of Taxes and Claims	75
Section 7.7. Books and Records; Inspections	76
Section 7.8. Use of Proceeds	76
Section 7.9. Environmental Matters	76
Section 7.10. Further Assurances	77
Section 7.11. REIT Status	77
Section 7.12. Exchange Listing	77
Section 7.13. Guarantors	77
Section 7.14. Margin Stock	78
Section 7.15. Limitation on Parent’s Assets and Liabilities	78

Article VIII. Information	79

Section 8.1. Quarterly Financial Statements	79
Section 8.2. Year-End Statements	79
Section 8.3. Compliance Certificate	79
Section 8.4. Other Information	80
Section 8.5. Electronic Delivery of Certain Information	81
Section 8.6. Public/Private Information	81
Section 8.7. USA Patriot Act Notice; Compliance	81

Article IX. Negative Covenants	82

Section 9.1. Financial Covenants	82
Section 9.2. Negative Pledge	83
Section 9.3. Restrictions on Intercompany Transfers	84
Section 9.4. Merger, Consolidation, Sales of Assets and Other Arrangements	84
Section 9.5. Plans	85
Section 9.6. Fiscal Year	85
Section 9.7. Modifications of Organizational Documents	85
Section 9.8. Transactions with Affiliates	85
Section 9.9. Environmental Matters	86
Section 9.10. Derivatives Contracts	86
Section 9.11. Use of Proceeds	86

Article X. Default	86

Section 10.1. Events of Default	86
Section 10.2. Remedies Upon Event of Default	90

Section 10.3. Remedies Upon Default	91
Section 10.4. Marshaling; Payments Set Aside	91
Section 10.5. Allocation of Proceeds	91
Section 10.6. Letter of Credit Collateral Account	92
Section 10.7. Performance by Administrative Agent	93
Section 10.8. Rights Cumulative	94

Article XI. The Administrative Agent	94

Section 11.1. Appointment and Authorization	94
Section 11.2. Administrative Agent as Lender	95
Section 11.3. Approvals of Lenders	95
Section 11.4. Notice of Events of Default	96
Section 11.5. Administrative Agent’s Reliance	96
Section 11.6. Indemnification of Administrative Agent	97
Section 11.7. Lender Credit Decision, Etc.	97
Section 11.8. Successor Administrative Agent	98
Section 11.9. Titled Agents	99

Article XII. Miscellaneous	99

Section 12.1. Notices	99
Section 12.2. Expenses	101
Section 12.3. Setoff	102
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers	103
Section 12.5. Successors and Assigns	104
Section 12.6. Amendments and Waivers	109
Section 12.7. Nonliability of Administrative Agent and Lenders	111
Section 12.8. Confidentiality	111
Section 12.9. Indemnification	112
Section 12.10. Termination; Survival	113
Section 12.11. Severability of Provisions	114
Section 12.12. GOVERNING LAW	114
Section 12.13. Counterparts	114
Section 12.14. Obligations with Respect to Parent, Loan Parties and Subsidiaries	114
Section 12.15. Independence of Covenants	114
Section 12.16. Limitation of Liability	114
Section 12.17. Entire Agreement	114
Section 12.18. Construction	115
Section 12.19. Headings	115
Section 12.20. LIABILITY OF TRUSTEES, ETC.	115
Section 12.21. Down REIT Formation	115
Section 12.22. Effect on Existing Credit Agreement	115
Section 12.23. Assumption by Borrower; Release of Parent	116
Section 12.24. Acknowledgement and Consent to Bail-In of EEA Financial Institutions	116

SCHEDULE I	Commitments
SCHEDULE 6.1.(b)	Ownership Structure
SCHEDULE 6.1.(g)	Indebtedness and Guaranties
SCHEDULE 6.1.(h)	Litigation

iii

SCHEDULE 6.1.(v)	Unencumbered Assets; Unencumbered Mortgage Notes
SCHEDULE 9.8.	Affiliate Transactions

EXHIBIT A	Form of Assignment and Assumption Agreement
EXHIBIT B	Form of Bid Rate Note
EXHIBIT C	Form of Designation Agreement
EXHIBIT D	Form of Disbursement Instruction Agreement
EXHIBIT E	Form of 5-Year Term Note
EXHIBIT F	Form of Guaranty
EXHIBIT G	Form of Notice of Continuation
EXHIBIT H	Form of Notice of Conversion
EXHIBIT I	Form of Notice of Revolving Borrowing
EXHIBIT J	Form of Notice of Swingline Borrowing
EXHIBIT K	[Reserved]
EXHIBIT L	Form of Revolving Note
EXHIBIT M	Form of 7-Year Term Note
EXHIBIT N	Form of Swingline Note
EXHIBIT O	Form of Bid Rate Quote Request
EXHIBIT P	Form of Bid Rate Quote
EXHIBIT Q	Form of Bid Rate Quote Acceptance
EXHIBITS R	Forms of U.S. Tax Compliance Certificates
EXHIBIT S	Form of Compliance Certificate

THIS AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of November 10, 2016, by and among EQC OPERATING TRUST, a real estate investment trust organized under the laws of the State of Maryland (the “Borrower”), each of the financial institutions initially a signatory hereto together with their successors and assignees under Section 12.5. (the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”), with WELLS FARGO SECURITIES, LLC, J.P. MORGAN SECURITIES LLC and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as joint Lead Arrangers and joint Bookrunners for the revolving credit facility and the 5-year term loan facility evidenced hereby, and WELLS FARGO SECURITIES LLC, as sole Lead Arranger and sole Bookrunner for the 7-year term loan facility evidenced hereby (all in such capacities, the “Lead Arrangers”), JPMORGAN CHASE BANK, N.A. and BANK OF AMERICA, N.A., as Syndication Agents, for the revolving credit facility and the 5-year term loan facility evidenced hereby (in such capacities, the “Syndication Agents”) and ROYAL BANK OF CANADA, BMO HARRIS BANK, N.A., COMPASS BANK, REGIONS BANK and U.S. BANK NATIONAL ASSOCIATION as Documentation Agents for the revolving credit facility and the 5-year term loan facility evidenced hereby, and CAPITAL ONE, NATIONAL ASSOCIATION and PNC BANK, NATIONAL ASSOCIATION as Documentation Agents for the 7-year term loan facility evidenced hereby (all in such capacities, the “Documentation Agents”).

WHEREAS, the Administrative Agent, the Issuing Banks (as defined herein) and the Lenders have made available to Equity Commonwealth, a real estate investment trust organized under the laws of the State of Maryland (the “Parent”), credit facilities in the aggregate amount of $1,150,000,000 consisting of (a) a $750,000,000 revolving credit facility with a $75,000,000 swingline subfacility, a $100,000,000 letter of credit subfacility and a competitive bid loan subfacility, (b) a $200,000,000 5-year term loan facility and (c) a $200,000,000 7-year term loan facility, on the terms and conditions contained in that certain Credit Agreement dated as of January 29, 2015 (as amended and in effect immediately prior to the date hereof, the “Existing Credit Agreement”) by and among the Parent, the Lenders, the Administrative Agent and the other parties thereto; and

WHEREAS, the parties hereto desire to amend and restate the terms of the Existing Credit Agreement in connection with the Reorganization (as defined herein) to, among other things, allow the Borrower to assume all obligations of the Parent under the Existing Credit Agreement, on the terms and conditions contained herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree that the Existing Credit Agreement is amended and restated in its entirety as follows:

ARTICLE I. DEFINITIONS

Section 1.1. Definitions.

In addition to terms defined elsewhere herein, the following terms shall have the following meanings for the purposes of this Agreement:

“ Absolute Rate ” has the meaning given that term in Section 2.3.(c)(ii)(C).

“ Absolute Rate Auction ” means a solicitation of Bid Rate Quotes setting forth Absolute Rates pursuant to Section 2.3.

“ Absolute Rate Loan ” means a Bid Rate Loan, the interest rate on which is determined on the basis of an Absolute Rate pursuant to an Absolute Rate Auction.

“ Accession Agreement ” means an Accession Agreement substantially in the form of Annex I to the Guaranty.

“ Additional Costs ” has the meaning given that term in Section 4.1.(b).

“ Adjusted EBITDA ” means, with respect to any period of time, EBITDA of the Parent and its Subsidiaries determined on a consolidated basis for such period less Capital Expenditures Reserves for all Properties for such period and the Parent’s Ownership Share of Capital Expenditures attributable to Properties of the Parent’s Unconsolidated Affiliates.

“ Administrative Agent ” means Wells Fargo Bank, National Association as contractual representative of the Lenders under this Agreement, or any successor Administrative Agent appointed pursuant to Section 11.8.

“ Administrative Questionnaire ” means the Administrative Questionnaire completed by each Lender and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the Lenders from time to time.

“ Affected Lender ” has the meaning given that term in Section 4.6.

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. In no event shall the Administrative Agent, any Issuing Bank or any Lender be deemed to be an Affiliate of the Borrower.

“ Agreement Date ” means the date as of which this Agreement is dated.

“ Anti-Corruption Laws ” means all Applicable Laws of any jurisdiction concerning or relating to bribery, corruption or money laundering, including without limitation, the Foreign Corrupt Practices Act of 1977, as amended.

“ Anti-Terrorism Laws ” has the meaning given that term in Section 6.1.(u).

“ Applicable Facility Fee ” means the percentage set forth in the table below corresponding to the Level at which the “Applicable Margin” is determined in accordance with the definition thereof:

Level	Facility Fee
1	0.125	%
2	0.150	%
3	0.200	%
4	0.250	%
5	0.300	%

Any change in the applicable Level at which the Applicable Margin is determined shall result in a corresponding and simultaneous change in the Applicable Facility Fee. The provisions of this definition shall be subject to Section 2.6.(c).

“ Applicable Law ” means all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“ Applicable Margin ” means, with respect to a particular Class and Type of Loans, the percentage rate set forth below corresponding to the level (each a “Level”) into which the Rated Party’s Credit Rating then falls. As of the Agreement Date, the Applicable Margins are determined based on Level 4. Any change in the Rated Party’s Credit Rating which would cause it to move to a different Level shall be effective as of the first day of the first calendar month immediately following receipt by the Administrative Agent of written notice delivered by the Borrower in accordance with Section 8.4.(l) that the Rated Party’s Credit Rating has changed; provided, however, if the Borrower has not delivered the notice required by such Section but the Administrative Agent becomes aware that the Rated Party’s Credit Rating has changed, then the Administrative Agent may, in its sole discretion, adjust the Level effective as of the first day of the first calendar month following the date the Administrative Agent becomes aware that the Credit Rating has changed. During any period that the Rated Party has three Credit Ratings that are not equivalent, the Applicable Margins shall be determined based on the Level corresponding to the highest of the Credit Ratings unless the difference between the highest and lowest of such Credit Ratings is two ratings categories (e.g. Baal by Moody’s and BBB- by S&P or Fitch) or more, in which case the Applicable Margins shall be determined based on the Level corresponding to the average of the two highest Credit Ratings, provided that if such average is not a recognized rating category, then the Applicable Margins shall be determined based on the Level corresponding to the second highest Credit Rating of the three. During any period that the Rated Party has only two Credit Ratings and such Credit Ratings are not equivalent, the Applicable Margins shall be determined based on the Level corresponding to the higher of such two Credit Rating unless the difference between such Credit Ratings is two ratings categories (e.g. Baal by Moody’s and BBB- by S&P or Fitch) or more, in which case the Applicable Margins shall be determined based on the Level corresponding to the Credit Rating that is one level below the highest Credit Rating. During any period for which the Rated Party has a Credit Rating from only one Rating Agency that is either S&P or Moody’s, the Applicable Margins shall be determined based on such Credit Rating. During any period for which the Rated Party has a Credit Rating from only one Rating Agency that is neither S&P nor Moody’s or the Borrower does not have a Credit Rating from any Rating Agency, the Applicable Margins shall be determined based on Level 5 of each of the applicable grids. The provisions of this definition shall be subject to Section 2.6.(c).

Level	Credit Rating	Applicable Margin for Revolving Loans that are LIBOR Loans		Applicable Margin for Revolving Loans that are Base Rate Loans		Applicable Margin for 5-Year Term Loans that are LIBOR Loans		Applicable Margin for 5-Year Term Loans that are Base Rate Loans		Applicable Margin 7-Year Term Loans that are LIBOR Loans		Applicable Margin for 7-Year Term Loans that are Base Rate Loans
1	A-/A3 or higher	0.875	%	0.000	%	0.900	%	0.000	%	1.400	%	0.400	%
2	BBB+/Baa1	0.925	%	0.000	%	0.975	%	0.000	%	1.450	%	0.450	%
3	BBB/Baa2	1.050	%	0.050	%	1.150	%	0.150	%	1.550	%	0.550	%
4	BBB-/Baa3	1.250	%	0.250	%	1.400	%	0.400	%	1.800	%	0.800	%
5	Less than BBB-/Baa3 (or not rated)	1.550	%	0.550	%	1.800	%	0.800	%	2.350	%	1.350	%

“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of any entity that administers or manages a Lender.

“ Asset Under Development ” means, as of any date of determination, any Property owned by the Parent or any of its Subsidiaries on which the construction of new income-producing improvements has been commenced and is continuing, with both the land and the improvements under construction thereon which comprise such Property to be valued as determined in accordance with GAAP. In the event of construction of an addition or expansion to an existing income producing Property, only the addition or expansion shall be considered an Asset Under Development. A Property shall cease to be an Asset Under Development on the earlier of (a) 18 months following the date of substantial completion of construction and (b) the date following commencement of construction on which the Occupancy Rate first equals or exceeds 85%.

“ Assignment and Assumption ” means an Assignment and Assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.5.), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.

“ Assumption ” means the Borrower’s assumption of the obligations of the Parent under the Existing Credit Agreement, the other Loan Documents (as defined in the Existing Credit Agreement) to which the Parent is a party and the Fee Letters, and certain other obligations of the Parent, all pursuant to the terms of Section 12.23.

“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“ Bankruptcy Code ” means the Bankruptcy Code of 1978, as amended.

“ Base Rate ” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 0.50% and (c) the LIBOR Market Index Rate plus 1.0%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or the LIBOR Market Index Rate ( provided that clause (c) shall not be applicable during any period in which LIBOR is unavailable or unascertainable).

“ Base Rate Loan ” means a Revolving Loan or Term Loan (or any portion thereof) bearing interest at a rate based on the Base Rate.

“ Benefit Arrangement ” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.

“ Bid Rate Borrowing ” has the meaning given that term in Section 2.3.(b).

“ Bid Rate Loan ” means a loan made by a Lender under Section 2.3.(f).

“ Bid Rate Note ” means a promissory note of the Borrower substantially in the form of Exhibit B, payable to the order of a Lender as originally in effect and otherwise duly completed.

“ Bid Rate Quote ” means an offer in accordance with Section 2.3.(c) by a Lender to make a Bid Rate Loan with one single specified interest rate.

“ Bid Rate Quote Request ” has the meaning given that term in Section 2.3.(b).

“ Borrower ” has the meaning set forth in the introductory paragraph hereof and shall include the Borrower’s successors and permitted assigns.

“ Borrower Information ” has the meaning given that term in Section 2.6.(c).

“ Business Day ” means (a) for all purposes other than as set forth in clause (b) below, any day (other than a Saturday, Sunday or legal holiday) on which banks in New York, New York, are open for the conduct of their commercial banking business, and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, any LIBOR Loan, or any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a day for trading by and between banks in Dollar deposits in the London interbank market. Unless specifically referenced in this Agreement as a Business Day, all references to “days” shall be to calendar days.

“ Capital Expenditure Reserves ” means, with respect to: (a) an Office Property and for a given period, an amount equal to (i) the aggregate rentable square footage of all completed space of such Office Property, times (ii) $0.50, times (iii) the number of days in such period, divided by (iv) 365; and (b) an Industrial Property and for a given period, an amount equal to (i) the aggregate rentable square footage of all completed space of such Industrial Property, times (ii) $0.10, times (iii) the number of days in such period, divided by (iv) 365; provided, however that no Capital Expenditure Reserves shall be required with respect to any portion of an Office Property or an Industrial Property which is net leased to a third party.

“ Capitalization Rate ” means (a) 6.75% for CBD Properties and (b) 7.75% for all other Properties.

“ Capitalized Lease Obligation ” means obligations under a lease (or other arrangement conveying the right to use property) to pay rent or other amounts that are required to be capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on a balance sheet of the applicable Person prepared in accordance with GAAP as of the applicable date.

“ Cash Collateralize ” means, to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Banks or the Revolving Lenders, as collateral for Letter of Credit Liabilities or obligations of Revolving Lenders to fund participations in respect of Letter of Credit Liabilities, cash or deposit account balances or, if the Administrative Agent and the Issuing Banks shall agree in their sole but reasonable discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Banks. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“ Cash Equivalents ” means: (a) securities issued, guaranteed or insured by the United States of America or any of its agencies with maturities of not more than one year from the date acquired;

(b) certificates of deposit with maturities of not more than one year from the date acquired issued by a United States federal or state chartered commercial bank of recognized standing, or a commercial bank organized under the laws of any other country which is a member of the Organisation for Economic Cooperation and Development, or a political subdivision of any such country, acting through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000 and which bank or its holding company has a short-term commercial paper rating of at least A-2 or the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than seven days from the date acquired, for securities of the type described in clause (a) above and entered into only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper issued by any Person incorporated under the laws of the United States of America or any State thereof and rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s, in each case with maturities of not more than one year from the date acquired; and (e) investments in money market funds registered under the Investment Company Act of 1940, as amended, which have net assets of at least $500,000,000 and at least 85% of whose assets consist of securities and other obligations of the type described in clauses (a) through (d) above.

“ CBD Property ” means a Property located within the central business district of (a) any of largest 20 MSA’s or (b) Denver, Colorado; Cleveland, Ohio; Indianapolis, Indiana or Austin, Texas. Determination of whether a Property qualifies as a CBD Property shall be subject to the Administrative Agent’s reasonable approval.

“ Class ” when used with respect to (a) a Commitment, refers to whether such Commitment is a Revolving Commitment, a 5-Year Term Loan Commitment or a 7-Year Term Loan Commitment, (b) a Loan, refers to whether such Loan is a Revolving Loan, a 5-Year Term Loan or a 7-Year Term Loan and (c) a Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments.

“ Commitment ” means a Revolving Commitment, a 5-Year Term Loan Commitment or a 7-Year Term Loan Commitment, as the context may require.

“ Compliance Certificate ” has the meaning given that term in Section 8.3.

“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“ Continue ”, “ Continuation ” and “ Continued ” each refers to the continuation of a LIBOR Loan from one Interest Period to another Interest Period pursuant to Section 2.10.

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“ Convert ”, “ Conversion ” and “ Converted ” each refers to the conversion of a Loan of one Type into a Loan of another Type pursuant to Section 2.11.

“ Credit Event ” means either of the following: (a) the making (or deemed making) of any Loan, and (b) the issuance of a Letter of Credit or the amendment of a Letter of Credit that extends the maturity, or increases the Stated Amount, of such Letter of Credit.

“ Credit Rating ” means the rating assigned by a Rating Agency to the senior unsecured long term Indebtedness of a Person.

“ Debt Service ” means, for any period, the sum of: (a) Interest Expense of the Parent and its Subsidiaries determined on a consolidated basis for such period and (b) all regularly scheduled payments made with respect to Indebtedness of the Parent and its Subsidiaries during such period, other than any balloon, bullet or similar principal payment which repays such Indebtedness in full. The Parent’s Ownership Share of the Debt Service of the Parent’s Unconsolidated Affiliates shall be included in determinations of Debt Service.

“ Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar Applicable Laws relating to the relief of debtors in the United States of America or other applicable jurisdictions from time to time in effect.

“ Declaration of Trust ” means the Borrower’s Articles of Amendment and Restatement of Declaration of Trust effective as of November 10, 2016.

“ Default ” means any of the events specified in Section 10.1., whether or not there has been satisfied any requirement for the giving of notice, the lapse of time, or both.

“ Defaulting Lender ” means, subject to Section 3.9.(f), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Banks, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within 2 Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any Issuing Bank or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) in the case of a Revolving Lender, has failed, within 3 Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.9.(f))

upon delivery of written notice of such determination to the Borrower, the Issuing Banks, the Swingline Lender and each Lender.

“ Derivatives Contract ” means a “swap agreement” as defined in Section 101 of the Bankruptcy Code.

“ Derivatives Termination Value ” means, in respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement or provision relating thereto, (a) for any date on or after the date such Derivatives Contracts have been terminated or closed out, the termination amount or value determined in accordance therewith, and (b) for any date prior to the date such Derivatives Contracts have been terminated or closed out, the then-current mark-to-market value for such Derivatives Contracts, determined based upon one or more mid-market quotations or estimates provided by any recognized dealer in Derivatives Contracts (which may include the Administrative Agent, any Lender, any Specified Derivatives Provider or any Affiliate of any of them).

“ Designated Lender ” means a special purpose corporation which is an Affiliate of, or sponsored by, a Lender, that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and that issues (or the parent of which issues) commercial paper rated at least P-1 (or the then equivalent grade) by Moody’s or A-1 (or the then equivalent grade) by S&P that, in either case, (a) is organized under the laws of the United States of America or any state thereof, (b) shall have become a party to this Agreement pursuant to Section 12.5.(g) and (c) is not otherwise a Lender.

“ Designating Lender ” has the meaning given that term in Section 12.5.(g).

“ Designation Agreement ” means a Designation Agreement between a Lender and a Designated Lender and accepted by the Administrative Agent, substantially in the form of Exhibit C or such other form as may be agreed to by such Lender, such Designated Lender and the Administrative Agent.

“ Disbursement Instruction Agreement ” means an agreement substantially in the form of Exhibit D to be executed and delivered by the Borrower pursuant to Section 5.1.(a), as the same may be amended, restated or modified from time to time with the prior written approval of the Administrative Agent.

“ Dollars ” or “ $ ” means the lawful currency of the United States of America.

“ Down REIT ” means any Subsidiary of the Borrower designated as the “Down REIT” by the Borrower as provided in Section 12.21. that meets the following requirements: (a) such Subsidiary is formed under the laws of the United States of America, any state thereof or the District of Columbia; (b) the Borrower Controls such Subsidiary and (c) such Subsidiary is a Guarantor. If any such Subsidiary shall at any time cease to satisfy any of the preceding requirements, it shall cease to be a Down REIT.

“ EBITDA ” means, with respect to a Person for a given period and without duplication, the sum of (a) net income (or loss) of such Person for such period determined on a consolidated basis exclusive of the following (but only to the extent included in the determination of such net income (loss) for such period): (i) depreciation and amortization; (ii) interest expense; (iii) income tax expense; (iv) extraordinary or nonrecurring items, including without limitation, gains and losses from the sale of operating Properties; and (v) in the case of Parent and its Subsidiaries, equity in the earnings (or loss) of Unconsolidated Affiliates; plus (b) such Person’s Ownership Share of EBITDA of its Unconsolidated Affiliates. Straight line rent leveling adjustments required under GAAP and amortization of intangibles pursuant to FASB ASC 805 shall be disregarded in the determination of EBITDA (to the extent such adjustments would otherwise have been included in the determination of EBITDA). For purposes of this

definition, nonrecurring items shall be deemed to include (x) gains and losses on early extinguishment of Indebtedness, (y) non-cash severance and other non-cash restructuring charges and (z) transaction costs of acquisitions not permitted to be capitalized pursuant to GAAP.

“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“ Effective Date ” means the later of (a) the Agreement Date and (b) the date on which all of the conditions precedent set forth in Section 5.1. shall have been fulfilled or waived by all of the Lenders.

“ Eligible Assignee ” means any Person that meets the requirements to be an assignee under Section 12.5.(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 12.5.(b)(iii)).

“ Environmental Claims ” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to human health or the environment.

“ Environmental Laws ” means any Applicable Law relating to environmental protection or the manufacture, storage, remediation, disposal or clean-up of Hazardous Materials including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental Protection Agency, any applicable rule of common law and any judicial interpretation thereof relating primarily to the environment or Hazardous Materials, and any analogous or comparable state or local laws, regulations or ordinances that concern Hazardous Materials or protection of the environment.

“ Equity Interest ” means, with respect to any Person, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such Person, whether or not certificated, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the

purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as in effect from time to time.

“ ERISA Event ” means, with respect to the ERISA Group, (a) any “reportable event” as defined in Section 4043 of ERISA with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the withdrawal of a member of the ERISA Group from a Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the incurrence by a member of the ERISA Group of any liability with respect to the withdrawal or partial withdrawal from any Multiemployer Plan; (d) the incurrence by any member of the ERISA Group of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (e) the institution of proceedings to terminate a Plan or Multiemployer Plan by the PBGC; (f) the failure by any member of the ERISA Group to make when due required contributions to a Multiemployer Plan or Plan unless such failure is cured within 30 days or the filing pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard; (g) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan or the imposition of liability under Section 4069 or 4212(c) of ERISA; (h) the receipt by any member of the ERISA Group of any notice or the receipt by any Multiemployer Plan from any member of the ERISA Group of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Section 4245 of ERISA), in reorganization (within the meaning of Section 4241 of ERISA), or in “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA); (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any member of the ERISA Group or the imposition of any Lien in favor of the PBGC under Title IV of ERISA; or (j) a determination that a Plan is, or is reasonably expected to be, in “at risk” status (within the meaning of Section 430 of the Internal Revenue Code or Section 303 of ERISA).

“ ERISA Group ” means the Parent, the Borrower, any other Subsidiary and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control, which, together with the Parent, the Borrower or any other Subsidiary, are treated as a single employer under Section 414 of the Internal Revenue Code.

“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“ Event of Default ” means any of the events specified in Section 10.1., provided that any requirement for notice or lapse of time or any other condition has been satisfied.

“ Excluded Subsidiary ” means any Subsidiary (a) which holds title to assets which are or are to become collateral for any Secured Indebtedness of such Subsidiary, is an owner of the Equity Interests of a Subsidiary holding title to such assets (but has no assets other than such Equity Interests and other assets of nominal value incidental thereto), or is required to be a single purpose entity in connection with any Secured Indebtedness and (b) which is prohibited from Guarantying the Indebtedness of any other Person pursuant to (i) any document, instrument or agreement evidencing such Secured Indebtedness, or

(ii) a provision of such Subsidiary’s organizational documents which provision was included in such Subsidiary’s organizational documents as a condition to the extension of such Secured Indebtedness.

“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to an Applicable Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 4.6.) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.10., amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.10.(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“ Existing Credit Agreement ” has the meaning given that term in the first WHEREAS clause of this Agreement.

“ Extended Letter of Credit ” has the meaning given that term in Section 2.4.(b).

“ Fair Market Value ” means, (a) with respect to a security listed on a national securities exchange or the NASDAQ National Market, the price of such security as reported on such exchange or market by any widely recognized reporting method customarily relied upon by financial institutions and (b) with respect to any other property, the price which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to complete the transaction.

“ FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.

“ FATCA ” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any intergovernmental agreements with respect to the foregoing.

“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent. If the Federal Funds Rate determined as provided above would be less than zero, the Federal Funds Rate shall be deemed to be zero.

“ Fee Letters ” means (a) that certain fee letter dated as of November 26, 2014, by and among the Parent, Wells Fargo and Wells Fargo Securities, LLC, (b) that certain fee letter dated as of November 26,

2014, by and among the Parent, JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC and (c) that certain fee letter dated as of November 26, 2014, by and among the Parent, Bank of America, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

“ Fees ” means the fees and commissions provided for or referred to in Section 3.5. and any other fees payable by the Borrower hereunder, under any other Loan Document or under the Fee Letter.

“ Fitch ” means Fitch, Inc., or any successor.

“ 5-Year Term Loan ” means a loan made by a 5-Year Term Loan Lender to the Parent pursuant to Section 2.2.(a)(i) of the Existing Credit Agreement, as assumed by the Borrower hereunder, or to the Borrower pursuant to Section 2.17.

“ 5-Year Term Loan Commitment ” means a 5-Year Term Loan Lender’s obligation to make a 5-Year Term Loan after the Effective Date as set forth in any agreement executed by an existing 5-Year Term Loan Lender or a Person becoming a 5-Year Term Loan Lender in accordance with Section 2.17.

“ 5-Year Term Loan Lender ” means a Lender having a 5-Year Term Loan Commitment or a Lender holding a 5-Year Term Loan.

“ 5-Year Term Note ” means a promissory note of the Borrower substantially in the form of Exhibit E payable to the order of a 5-Year Term Loan Lender in a principal amount equal to the amount of such 5-Year Term Loan Lender’s 5-Year Term Loan at the time of the making or acquisition of such Loan.

“ Fixed Charges ” means, for any period, the sum (without duplication) of (a) Debt Service for such period and (b) Preferred Dividends for such period.

“ Foreign Lender ” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

“ Foreign Subsidiary ” means (a) a Subsidiary not formed under the laws of the United States of America, any state thereof or the District of Columbia and (b) a Subsidiary formed under the laws of the United States of America, any state thereof or the District of Columbia and whose assets consist solely of the Equity Interests in one or more Subsidiaries described in clause (a) of this definition .

“ Fronting Exposure ” means, at any time there is Revolving Lender that is a Defaulting Lender, (a) with respect to each Issuing Bank, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding Letter of Credit Liabilities relating to Letters of Credit issued by such Issuing Bank other than Letter of Credit Liabilities as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Commitment Percentage of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders.

“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“ Funds From Operations ” means, for any period, net income available for common shareholders of the Parent for such period determined on a consolidated basis, exclusive of the following (to the extent included in the determination of such net income): (a) depreciation and amortization; (b) gains and losses from extraordinary or non-recurring items; (c) gains and losses on sales of real estate; (d) gains and losses on investments in marketable securities; (e) losses from asset impairments; and (f) provisions/benefits for income taxes for such period.

“ GAAP ” means generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (including Statement of Financial Accounting Standards No. 168, “The FASB Accounting Standards Codification”) or in such other statements by such other entity as may be approved by a significant segment of the accounting profession in the United States of America, which are applicable to the circumstances as of the date of determination.

“ Governmental Approvals ” means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.

“ Governmental Authority ” means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board, department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), or any arbitrator with authority to bind a party at law.

“ Guarantor ” means any Person that is party to the Guaranty as a “Guarantor”.

“ Guaranty ”, “ Guaranteed ” or to “ Guarantee ” as applied to any obligation means and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection in the ordinary course of business), directly or indirectly, in any manner, of any part or all of such obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a guaranty, the practical effect of which is to assure the payment or performance (or payment of damages in the event of nonperformance) of any part or all of such obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or sale of services primarily for the purpose of enabling the obligor with respect to such obligation to make any payment or performance (or payment of damages in the event of nonperformance) of or on account of any part or all of such obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of credit (including Letters of Credit), or (v) the supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person against any part or all of such obligation. As the context requires, “Guaranty” shall also mean any guaranty executed and delivered pursuant to Section 7.13. and substantially in the form of Exhibit F.

“ Hazardous Materials ” means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”; (b) oil,

petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (c) any flammable substances or explosives or any radioactive materials; (d) asbestos in any form; (e) toxic mold; and (f) electrical equipment which contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty parts per million.

“ Indebtedness ” means, with respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations of such Person (including Subordinated Debt) in respect of money borrowed; (b) all obligations of such Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or for services rendered; (c) Capitalized Lease Obligations of such Person; (d) all reimbursement obligations (contingent or otherwise) of such Person under or in respect of any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all obligations, contingent or otherwise, of such Person under any synthetic lease, tax retention operating lease, off balance sheet loan or similar off balance sheet financing arrangement if the transaction giving rise to such obligation (i) is considered indebtedness for borrowed money for tax purposes but is classified as an operating lease under GAAP and (ii) does not (and is not required to pursuant to GAAP) appear as a liability on the balance sheet of such Person; (f) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such Person or any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (g) all obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of Equity Interests (other than Mandatorily Redeemable Stock)); (h) all Indebtedness of other Persons which such Person has Guaranteed or is otherwise recourse to such Person; (i) all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien (other than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof) on property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness or other payment obligation, valued, in the case of any such Indebtedness as to which recourse for the payment thereof is expressly limited to the property or assets on which such Lien is granted, at the lesser of (x) the stated or determinable amount of the Indebtedness that is so secured or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) and (y) the Fair Market Value of such property or assets; and (j) such Person’s Ownership Share of the Indebtedness of any Unconsolidated Affiliate of such Person.

“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower or any other Loan Party under any Loan Document and (b) to the extent not otherwise described in the immediately preceding clause (a), Other Taxes.

“ Industrial Property ” means a Property improved with, and from which 80% of the rental income is derived from the use of such Property as, industrial or warehouse space.

“ Interest Expense ” means, with respect to a Person for any period of time, (a) the interest expense, whether paid, accrued or capitalized (without deduction of consolidated interest income) of such

Person for such period plus (b) in the case of the Parent, the Parent’s Ownership Share of Interest Expense of its Unconsolidated Affiliates. Interest Expense shall exclude any amortization of (i) deferred financing fees and (ii) debt discounts (but only to the extent such discounts do not exceed 3.0% of the initial face principal amount of such debt).

“ Interest Period ” means:

(a) with respect to each LIBOR Loan, each period commencing on the date such LIBOR Loan is made, or in the case of the Continuation of a LIBOR Loan the last day of the preceding Interest Period for such Loan, and ending 7 days thereafter or on the numerically corresponding day in the first, third or sixth calendar month thereafter, as the Borrower may select in a Notice of Revolving Borrowing, Notice of Term Loan Borrowing, Notice of Continuation or Notice of Conversion, as the case may be, except that each Interest Period (other than an Interest Period having a duration of 7 days) that commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month; and

(b) with respect to each Bid Rate Loan, the period commencing on the date such Bid Rate Loan is made and ending on any Business Day not less than 7 nor more than 180 days thereafter, as the Borrower may select as provided in Section 2.3.(b).

Notwithstanding the foregoing: (i) if any Interest Period for Loans of a Class would otherwise end after the Termination Date for such Class, such Interest Period shall end on such Termination Date; and (ii) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the immediately following Business Day (or, if such immediately following Business Day falls in the next calendar month, on the immediately preceding Business Day).

“ Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended.

“ Investment ” means, (x) with respect to any Person, any acquisition or investment (whether or not of a controlling interest) by such Person, by means of any of the following: (a) the purchase or other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any Indebtedness of, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute the business or a division or operating unit of another Person and (y) with respect to any Property or other asset, the acquisition thereof. Any irrevocable commitment to make an Investment in any other Person, as well as any option of another Person to require an Investment in such Person, shall constitute an Investment. Except as expressly provided otherwise, for purposes of determining compliance with any covenant contained in a Loan Document, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“ Investment Grade Rating ” means a Credit Rating of BBB- or higher from S&P or Fitch and Baa3 or higher from Moody’s.

“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“ Issuing Bank ” means each of Wells Fargo, JPMorgan Chase Bank, N.A. and Bank of America, N.A. in its capacity as an issuer of Letters of Credit pursuant to Section 2.4., or any other Revolving Lender reasonably satisfactory to the Borrower and the Administrative Agent that has agreed in writing to act as an issuer of Letters of Credit pursuant to Section 2.4.

“ Jacksonville Indebtedness ” means the first mortgage loan in the original principal amount of $41,600,000 made to Hub OEC Properties LLC, held by U.S. Bank National Association, as Trustee for the registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates Series 2006-C26, and secured by the Property commonly known as One Enterprise Center in Jacksonville, Florida.

“ Latest Termination Date ” means, at any date of determination, the latest Termination Date applicable to any Loan or Commitment hereunder at such time.

“ L/C Commitment Amount ” has the meaning given to that term in Section 2.4.(a).

“ L/C Disbursement ” has the meaning given to that term in Section 3.9.(b).

“ Lender ” means each financial institution from time to time party hereto as a “Lender” or a “Designated Lender,” together with its respective successors and permitted assigns, and, as the context requires, includes the Swingline Lender; provided, however, that the term “Lender” (i) shall exclude each Designated Lender when used in reference to any Loan other than a Bid Rate Loan, the Commitments or terms relating to any Loan other than a Bid Rate Loan and shall further exclude each Designated Lender for all other purposes under the Loan Documents except that any Designated Lender which funds a Bid Rate Loan shall, subject to Section 12.5.(g), have only the rights (including the rights given to a Lender contained in Sections 12.2. and 12.9.) and obligations of a Lender associated with holding such Bid Rate Loan and (ii) except as otherwise expressly provided herein, shall exclude any Lender (and its Affiliates) in its capacity as a Specified Derivatives Provider.

“ Lending Office ” means, for each Lender and for each Type of Loan, the office of such Lender specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and Assumption, or such other office of such Lender as such Lender may notify the Administrative Agent in writing from time to time.

“ Letter of Credit ” has the meaning given that term in Section 2.4.(a).

“ Letter of Credit Collateral Account ” means a special deposit account maintained by the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Banks and the Revolving Lenders, and under the sole dominion and control of the Administrative Agent.

“ Letter of Credit Documents ” means, with respect to any Letter of Credit, collectively, any application therefor, any certificate or other document presented in connection with a drawing under such Letter of Credit and any other agreement, instrument or other document governing or providing for (a) the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any collateral security for any of such obligations.

“ Letter of Credit Liabilities ” means, without duplication, at any time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate unpaid principal amount of all Reimbursement Obligations of the Borrower at such time due and payable in respect of all drawings made under such Letter of Credit. For purposes of this Agreement, a Lender (other than the Lender that is the Issuing Bank with respect to the related Letter of Credit) shall be

deemed to hold a Letter of Credit Liability in an amount equal to its participation interest under Section 2.4. in the related Letter of Credit, and the Lender that is the Issuing Bank of such Letter of Credit shall be deemed to hold a Letter of Credit Liability in an amount equal to its retained interest in the related Letter of Credit after giving effect to the acquisition by the Lenders (other than the Lender that is the Issuing Bank of such Letter of Credit) of their participation interests under such Section. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Level ” has the meaning given that term in the definition of the term “Applicable Margin.”

“ LIBOR ” means, with respect to any LIBOR Loan for any Interest Period, the rate of interest obtained by dividing (i) the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at approximately 11:00 a.m. (London time) two Business Days prior to the first day of the applicable Interest Period by (ii) a percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified in Regulation D of the Board of Governors of the Federal Reserve System (or against any other category of liabilities which includes deposits by reference to which the interest rate on LIBOR Loans is determined or any applicable category of extensions of credit or other assets which includes loans by an office of any Lender outside of the United States of America). If, for any reason, the rate referred to in the preceding clause (i) does not appear on Reuters Screen LIBOR01 Page (or any applicable successor page), then the rate to be used for such clause (i) shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period. Any change in the maximum rate or reserves described in the preceding clause (ii) shall result in a change in LIBOR on the date on which such change in such maximum rate becomes effective. If LIBOR determined as provided above would be less than zero, LIBOR shall be deemed to be zero.

“ LIBOR Auction ” means a solicitation of Bid Rate Quotes setting forth LIBOR Margin Loans based on LIBOR pursuant to Section 2.3.

“ LIBOR Loan ” means a Revolving Loan or Term Loan (or any portion thereof) (other than a Base Rate Loan) bearing interest at a rate based on LIBOR.

“ LIBOR Margin ” has the meaning given that term in Section 2.3.(c)(ii)(D).

“ LIBOR Margin Loan ” means a Bid Rate Loan the interest rate on which is determined on the basis of LIBOR pursuant to a LIBOR Auction.

“ LIBOR Market Index Rate ” means, for any day, LIBOR as of that day that would be applicable for a LIBOR Loan having a one-month Interest Period determined at approximately 10:00 a.m. Central time for such day (rather than 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period as otherwise provided in the definition of “LIBOR”), or if such day is not a Business Day, the immediately preceding Business Day. The LIBOR Market Index Rate shall be determined on a daily basis.

“ Lien ” as applied to the property of any Person means: (a) any security interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge, lien, hypothecation,

assignment, charge or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement, or other security title or encumbrance of any kind in respect of any property of such Person, or upon the income, rents or profits therefrom; (b) any arrangement under which any property of such Person is transferred, sequestered or otherwise identified for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to the payment of the general, unsecured creditors of such Person; and (c) the filing of any financing statement under the UCC or its equivalent in any jurisdiction, other than any precautionary filing not otherwise constituting or giving rise to a Lien, including a financing statement filed (i) in respect of a lease not constituting a Capitalized Lease Obligation pursuant to Section 9-505 (or a successor provision) of the UCC or its equivalent as in effect in an applicable jurisdiction or (ii) in connection with a sale or other disposition of accounts or other assets not prohibited by this Agreement in a transaction not otherwise constituting or giving rise to a Lien.

“ Loan ” means a Revolving Loan, a Term Loan, a Bid Rate Loan or a Swingline Loan.

“ Loan Document ” means this Agreement, each Note, any Guaranty (when in effect), each Letter of Credit Document and each other document, certificate or instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating to this Agreement (other than the Fee Letters and any Specified Derivatives Contract).

“ Loan Party ” means each of the Borrower and each other Person who guarantees all or a portion of the Obligations and/or who pledges any collateral to secure all or a portion of the Obligations.

“ Mandatorily Redeemable Stock ” means, with respect to any Person, any Equity Interest of such Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or part (other than an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common Equity Interests), in the case of each of clauses (a) through (c) on or prior to the Latest Termination Date.

“ Marketable Securities ” means (a) common or preferred Equity Interests of Persons located in, and formed under the laws of, any State of the United States or America or the District of Columbia, which Equity Interests are subject to price quotations (quoted at least daily) on The NASDAQ Stock Market’s National Market System or have trading privileges on the New York Stock Exchange, the American Stock Exchange or another recognized national United States securities exchange and (b) securities evidencing Indebtedness issued by Persons located in, and formed under the laws of, any State of the United States or America or the District of Columbia, which Persons have a Credit Rating of BBB- or Baa3 or better.

“ Material Acquisition ” means any acquisition (whether by direct purchase, merger or otherwise and whether in one or more related transactions) by the Parent or any Subsidiary in which the purchase price of the assets acquired exceeds 5.0% of Total Asset Value as of the last day of the most recently ending fiscal quarter of the Parent for which financial statements are publicly available.

“ Material Adverse Effect ” means (a) a materially adverse effect on the business, assets, liabilities, financial condition or results of operations of the Parent and its Subsidiaries, or the Borrower and its Subsidiaries, in each case, taken as a whole, (b) a material impairment of (i) the ability of the

Borrower or any other Loan Party to perform its obligations under any Loan Document to which it is a party or (ii) the rights and remedies of the Lenders, the Issuing Banks and the Administrative Agent under any of the Loan Documents or (c) a material adverse effect on the validity or enforceability of any of the Loan Documents.

“ Moody’s ” means Moody’s Investors Service, Inc. and its successors.

“ Mortgage ” means a mortgage, deed of trust, deed to secure debt or similar security instrument made by a Person owning an interest in real estate granting a Lien on such interest in real estate as security for the payment of Indebtedness.

“ Mortgage Receivable ” means a promissory note secured by a Mortgage of which the Parent or a Subsidiary is the holder and retains the rights of collection of all payments thereunder.

“ MSA ” means a Metropolitan Statistical Area as listed in Budget Bulletin No. 09-01 issued by the Executive Office of the President of the United States of America, Office of Management and Budget.

“ Multiemployer Plan ” means at any time a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding six plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such six-year period.

“ Negative Pledge ” means, with respect to a given asset, any provision of a document, instrument or agreement (other than any Loan Document or Specified Derivatives Contract) which prohibits or purports to prohibit the creation or assumption of any Lien on such asset as security for Indebtedness of the Person owning such asset or any other Person; provided, however, that an agreement that conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit a Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge.

“ Net Operating Income ” means, with respect to a Property and for a given period, the sum of the following (without duplication): (a) rents (adjusted for straight-lining of rents and amortization of intangibles pursuant to Statement of Financial Accounting Standards number 141 and the like) and other revenues received in the ordinary course from the leasing or operating of such Property (including proceeds of rent loss insurance but excluding pre-paid rents and revenues and security deposits except to the extent applied in satisfaction of tenants’ obligations for rent) minus (b) all expenses paid or accrued by the Parent or a Subsidiary related to the ownership, operation or maintenance of such Property, including but not limited to taxes, assessments and other similar charges, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, on-site marketing expenses and property management fees equal to the greater of (i) actual property management fees or (ii) three percent (3.0%) of the total gross revenues for such Property for such period, but in any event excluding general and administrative expenses of the Parent and its Subsidiaries, minus (c) Capital Expenditures Reserves with respect to such Property for such period.

“ Non-Consenting Lender ” means any Lender that does not approve any consent, waiver, amendment or release with respect to any Loan Document that (i) requires the approval of all Lenders or all affected lenders in accordance with the terms of Section 12.6.(b) and (ii) has been approved by the Requisite Lenders.

“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.

“ Non-Domestic Property ” means a Property located outside a state of the United States of America and the District of Columbia.

“ Nonrecourse Indebtedness ” means, with respect to a Person, Indebtedness for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar customary exceptions to nonrecourse liability) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.

“ Note ” means a Revolving Note, Term Note, a Bid Rate Note or a Swingline Note.

“ Notice of Continuation ” means a notice substantially in the form of Exhibit G (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.10. evidencing the Borrower’s request for the Continuation of a LIBOR Loan.

“ Notice of Conversion ” means a notice substantially in the form of Exhibit H (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.11. evidencing the Borrower’s request for the Conversion of a Loan from one Type to another Type.

“ Notice of Revolving Borrowing ” means a notice substantially in the form of Exhibit I (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing the Borrower’s request for a borrowing of Revolving Loans.

“ Notice of Swingline Borrowing ” means a notice substantially in the form of Exhibit J (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Swingline Lender pursuant to Section 2.5.(b) evidencing the Borrower’s request for a Swingline Loan.

“ Obligations ” means, individually and collectively: (a) the aggregate principal balance of, and all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other Letter of Credit Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants and duties of the Borrower and the other Loan Parties owing to the Administrative Agent, any Issuing Bank or any Lender of every kind, nature and description, under or in respect of this Agreement or any of the other Loan Documents, including, without limitation, the Fees and indemnification obligations, whether direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any promissory note. For the avoidance of doubt, “Obligations” shall not include any indebtedness, liabilities, obligations, covenants or duties in respect of Specified Derivatives Contracts.

“ Occupancy Rate ” means, with respect to a Property at any time, the ratio, expressed as a percentage, of (a) the net rentable square footage of such Property actually occupied by tenants that are not Affiliates of the Borrower and paying rent at rates not materially less than rates generally prevailing at the time the applicable lease was entered into, pursuant to binding leases as to which no monetary default has occurred and has continued unremedied for 30 or more days to (b) the aggregate net rentable square footage of such Property.

“ OFAC ” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

“ Office Property ” means a Property improved with, and from which at least 80% of the rental income is derived from the use of such Property as, office space.

“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 4.6.).

“ Ownership Share ” means, with respect to any Subsidiary of a Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or Unconsolidated Affiliate or (b) such Person’s relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate.

“ Parent ” has the meaning given that term in the first WHEREAS clause of this Agreement and shall include the Parent’s successors and permitted assigns.

“ Participant ” has the meaning given that term in Section 12.5.(d).

“ Participant Register ” has the meaning given that term in Section 12.5.(d).

“ Patriot Act ” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).

“ PBGC ” means the Pension Benefit Guaranty Corporation and any successor agency.

“ Permitted Liens ” means, as to any Person: (a) Liens securing taxes, assessments and other charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions of ERISA) or the claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, (i) which are not at the time required to be paid or discharged under Section 7.6. or (ii) if such Lien is the responsibility of a financially responsible tenant, mortgagor or manager to discharge; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance or similar Applicable Laws; (c) Liens consisting of encumbrances in the nature of zoning restrictions, easements, and rights or restrictions of record on the use of real property, which do not materially detract from the value of such property or impair the use thereof in the business of such Person and, in the case of the Borrower or any other Subsidiary, Liens granted by any tenant on its leasehold estate in a Property which are subordinate to the interest of the

Borrower or such other Subsidiary in such Property; (d) Liens in existence as of the Agreement Date; (e) deposits to secure trade contracts (other than for Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (f) the lessor’s interest in property leased to the Borrower or any of its Subsidiaries pursuant to a lease permitted by this Agreement; (g) the interests of tenants, operators or managers of Properties; (h) Liens in favor of the Administrative Agent for the benefit of the Lenders, the Issuing Banks and the Specified Derivatives Providers; and (i) Liens which are also secured by restricted cash or Cash Equivalents of equal or greater value.

“ Person ” means any natural person, corporation, limited partnership, general partnership, joint stock company, limited liability company, limited liability partnership, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or any other nongovernmental entity, or any Governmental Authority.

“ Plan ” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the preceding six years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group.

“ Plan Assets ” has the meaning given that term in Section 6.1.(t).

“ Post-Default Rate ” means, in respect of any principal of any Loan or any Reimbursement Obligation, the rate otherwise applicable plus an additional two percent (2.0%) per annum and with respect to any other Obligation, a rate per annum equal to the Base Rate as in effect from time to time plus the Applicable Margin for Revolving Loans that are Base Rate Loans plus two percent (2.0%).

“ Preferred Dividends ” means, for any given period and without duplication, all Restricted Payments accrued or paid (and in the case of Restricted Payments paid, which were not accrued during a prior period) during such period on Preferred Stock issued by the Parent or a Subsidiary. Preferred Dividends shall not include dividends or distributions (a) paid or payable solely in Equity Interests (other than Mandatorily Redeemable Stock) payable to holders of such class of Equity Interests; (b) paid or payable to the Parent or a Subsidiary; or (c) constituting or resulting in the redemption of Preferred Stock, other than scheduled redemptions not constituting balloon, bullet or similar redemptions in full.

“ Preferred Stock ” means, with respect to any Person, shares of capital stock of, or other Equity Interests in, such Person which are entitled to preference or priority over any other capital stock of, or other Equity Interest in, such Person in respect of the payment of dividends or distribution of assets upon liquidation or both.

“ Prime Rate ” means, at any time, the rate of interest per annum publicly announced from time to time by the Lender then acting as the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Lender acting as Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.

“ Principal Office ” means the office of the Administrative Agent located at 608 Second Avenue S., 11 th Floor, Minneapolis, Minnesota 55402-1916, or any other subsequent office that the

Administrative Agent shall have specified as the Principal Office by written notice to the Borrower and the Lenders.

“ Prior Term Loan Agreement ” means that certain Term Loan Agreement dated as of December 16, 2010 by and among the Parent, the financial institutions party thereto, Wells Fargo, as administrative agent, and the other parties thereto.

“ Pro Rata Share ” means, as to each Lender, the ratio, expressed as a percentage of (a)(i) the amount of such Lender’s Revolving Commitment plus (ii) the aggregate outstanding principal amount of such Lender’s Term Loans, if any, to (b)(i) the aggregate amount of the Revolving Commitments of all Lenders plus (ii) the aggregate amount of all outstanding Term Loans; provided, however, that if at the time of determination the Revolving Commitments have terminated or been reduced to zero, the “Pro Rata Share” of each Lender shall be the ratio, expressed as a percentage of (A) the sum of the unpaid principal amount of all outstanding Revolving Loans, Term Loans, Bid Rate Loans, Swingline Loans and Letter of Credit Liabilities owing to such Lender as of such date to (B) the sum of the aggregate unpaid principal amount of all outstanding Revolving Loans, Term Loans, Bid Rate Loans, Swingline Loans and Letter of Credit Liabilities of all Lenders as of such date. If at the time of determination the Revolving Commitments have terminated and there are no outstanding Loans or Letter of Credit Liabilities, then the Pro Rata Shares of the Lenders shall be determined as of the most recent date on which any Loans and/or Letters of Credit Liabilities were outstanding. For purposes of this definition, a Revolving Lender shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the extent such Revolving Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation.

“ Projections ” has the meaning given that term in Section 6.1.(s).

“ Property ” means any parcel of real property owned or leased (in whole or in part) by the Parent, the Borrower, any Subsidiary or any Unconsolidated Affiliate.

“ Qualified Plan ” means a Benefit Arrangement that is intended to be tax-qualified under Section 401(a) of the Internal Revenue Code.

“ Rated Party ” means the Parent; provided that if a Rating Agency assigns a Credit Rating to any senior unsecured long term Indebtedness of the Borrower, then “Rated Party” shall mean the Borrower on and at all times after the date on which such Credit Rating is publicly announced.

“ Rating Agency ” means S&P, Moody’s or Fitch.

“ Recipient ” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.

“ Register ” has the meaning given that term in Section 12.5.(c).

“ Regulatory Change ” means, with respect to any Lender, any change effective after the Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of Governors of the Federal Reserve System) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks, including such Lender, of or under any Applicable Law (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof or compliance by any Lender with any request or directive regarding capital adequacy or liquidity. Notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street

Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (b) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Regulatory Change”, regardless of the date enacted, adopted or issued.

“ Reimbursement Obligation ” means the absolute, unconditional and irrevocable obligation of the Borrower to reimburse an Issuing Bank for any drawing honored by such Issuing Bank under a Letter of Credit issued by such Issuing Bank.

“ REIT ” means a Person qualifying for treatment as a “real estate investment trust” under the Internal Revenue Code.

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, shareholders, directors, officers, employees, agents, counsel, other advisors and representatives of such Person and of such Person’s Affiliates.

“ Reorganization ” means, collectively, the transactions undertaken by the Parent, the Borrower and other Subsidiaries in connection with the Parent’s reorganization of its corporate organizational structure to implement an “umbrella partnership” real estate investment trust structure, including without limitation, (a) contribution or assignment to the Borrower of substantially all assets of the Parent and its Subsidiaries not owned directly or indirectly by the Borrower and (b) in the case of certain Properties not contributed as contemplated by the preceding clause (a) (if any), the Borrower entering into contracts with the Subsidiaries that own such Properties to give the Borrower the economic benefit and burden of ownership of those Properties.

“ Requisite Class Lenders ” means, with respect to any Class of Lenders on any date of determination, Lenders of such Class (a) having more than 50.0% of the aggregate amount of the Commitments of such Class, or (b) if the Commitments of such Class have terminated, holding more than 50.0% of the principal amount of the aggregate outstanding Loans of such Class, and in the case of Revolving Lenders, outstanding Letter of Credit Liabilities, Swingline Loans and Bid Rate Loans; provided that (i) in determining such percentage at any given time, all then existing Defaulting Lenders of such Class will be disregarded and excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) of such Class are party to this Agreement, the term “Requisite Class Lenders” shall in no event mean less than two Lenders of such Class. For purposes of this definition, a Revolving Lender shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the extent such Revolving Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation.

“ Requisite Lenders ” means, as of any date, Lenders having more than 50.0% of the aggregate amount of (a) the Revolving Commitments (or if the Revolving Commitments have been terminated or reduced to zero, the principal amount of the aggregate outstanding Revolving Loans, Bid Rate Loans, Swingline Loans and Letter of Credit Liabilities) and (b) the principal amount of the aggregate outstanding Term Loans; provided that (i) in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded, and (ii) at all times when there are two or more Lenders (excluding Defaulting Lenders), the term “Requisite Lenders” shall in no event mean less than two Lenders. For purposes of this definition, a Revolving Lender shall be deemed to hold a Swingline Loan or a Letter of Credit Liability to the extent such Lender has acquired a participation therein under the terms of this Agreement and has not failed to perform its obligations in respect of such participation.

“ Responsible Officer ” means the chief executive officer, chief financial officer or treasurer of the Parent or the Borrower, as applicable.

“ Restricted Payment ” means: (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock or other Equity Interest of the Parent or any of its Subsidiaries now or hereafter outstanding, except a dividend or other distribution payable solely in shares of that class of stock to the holders of that class; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock or other Equity Interest of the Parent or any of its Subsidiaries now or hereafter outstanding (a “Redemption”), except any Redemption of Equity Interests of the Parent or any of its Subsidiaries payable solely in common Equity Interests of the Parent or such Subsidiary, as the case may be; and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests of the Parent or any of its Subsidiaries now or hereafter outstanding.

“ Revolving Commitment ” means, as to each Revolving Lender (other than the Swingline Lender), such Lender’s obligation to make Revolving Loans pursuant to Section 2.1., to issue (in the case of an Issuing Bank) and to participate (in the case of the other Lenders) in Letters of Credit pursuant to Section 2.4.(i), and to participate in Swingline Loans pursuant to Section 2.5.(e), in an amount up to, but not exceeding the amount set forth for such Lender on Schedule I as such Lender’s “Revolving Commitment Amount” or as set forth in the applicable Assignment and Assumption, or agreement executed by a Person becoming a Lender in accordance with Section 2.17., as the same may be reduced from time to time pursuant to Section 2.13. or increased or reduced as appropriate to reflect any assignments to or by such Lender effected in accordance with Section 12.5. or increased as appropriate to reflect any increase effected in accordance with Section 2.17.

“ Revolving Commitment Percentage ” means, as to each Revolving Lender, the ratio, expressed as a percentage, of (a) the amount of such Lender’s Revolving Commitment to (b) the aggregate amount of the Revolving Commitments of all Revolving Lenders hereunder; provided, however, that if at the time of determination the Revolving Commitments have been terminated or been reduced to zero, the “Revolving Commitment Percentage” of each Revolving Lender shall be the “Revolving Commitment Percentage” of such Lender in effect immediately prior to such termination or reduction.

“ Revolving Credit Exposure ” means, as to any Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Revolving Lender’s participation in Letter of Credit Liabilities and Swingline Loans at such time.

“ Revolving Lender ” means a Lender having a Revolving Commitment, or if the Revolving Commitments have terminated, holding any Revolving Loans.

“ Revolving Loan ” means a loan made by a Revolving Lender to the Borrower pursuant to Section 2.1.(a).

“ Revolving Note ” means a promissory note of the Borrower substantially in the form of Exhibit L, payable to the order of a Revolving Lender in a principal amount equal to the amount of such Lender’s Revolving Commitment.

“ Revolving Termination Date ” means January 28, 2019, or such later date to which the Revolving Termination Date may be extended pursuant to Section 2.14.

“ Sanctioned Country ” means, at any time, a country or territory which is, or whose government is, the subject or target of any Sanctions.

“ Sanctioned Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, the European Union or any other Governmental Authority, (b) any Person located, operating, organized or resident in a Sanctioned Country, (c) an agency, political subdivision or instrumentality of the government of a Sanctioned County or (d) any Person owned 50% or more or Controlled by any Person or agency described in any of the preceding clauses (a) through (c).

“ Sanctions ” means any sanctions or trade embargoes imposed, administered or enforced by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by the United Nations Security Council, the European Union or any other Governmental Authority.

“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“ Secured Indebtedness ” means, with respect to a Person as of any given date, the aggregate principal amount of all Indebtedness of such Person outstanding on such date that is secured in any manner by any Lien on any property and, in the case of the Parent, shall include (without duplication) the Parent’s Ownership Share of the Secured Indebtedness of any of its Unconsolidated Affiliates.

“ Securities Act ” means the Securities Act of 1933, as amended from time to time, together with all rules and regulations issued thereunder.

“ 7-Year Term Loan ” means a loan made by a 7-Year Term Loan Lender to the Parent pursuant to Section 2.2.(a)(ii) of the Existing Credit Agreement, as assumed by the Borrower hereunder, or to the Borrower pursuant to Section 2.17.

“ 7-Year Term Loan Commitment ” means a 7-Year Term Loan Lender’s obligation to make a 7-Year Term Loan after the Effective Date as set forth in any agreement executed by an existing 7-Year Term Loan Lender or a Person becoming a 7-Year Term Loan Lender in accordance with Section 2.17.

“ 7-Year Term Loan Lender ” means a Lender having a 7-Year Term Loan Commitment or a Lender holding a 7-Year Term Loan.

“ 7-Year Term Note ” means a promissory note of the Borrower substantially in the form of Exhibit M payable to the order of a 7-Year Term Loan Lender in a principal amount equal to the amount of such 7-Year Term Loan Lender’s 7-Year Term Loan at the time of the making or acquisition of such Loan.

“ Solvent ” means, when used with respect to any Person, that (a) the fair value and the fair salable value of its assets are each in excess of the fair valuation of its total liabilities (including all contingent liabilities computed at the amount which, in light of all facts and circumstances existing at such time, represents the amount that could reasonably be expected to become an actual and matured liability); (b) such Person is generally able to pay its debts or other obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small to carry on its business and all business in which it proposes to be engaged.

“ Specified Derivatives Contract ” means any Derivatives Contract that is made or entered into at any time, or in effect at any time now or hereafter, whether as a result of an assignment or transfer or

otherwise, between or among any Loan Party and any Specified Derivatives Provider, and which was not prohibited by any of the Loan Documents when made or entered into.

“ Specified Derivatives Obligations ” means all indebtedness, liabilities, obligations, covenants and duties of the Borrower or its Subsidiaries under or in respect of any Specified Derivatives Contract, whether direct or indirect, absolute or contingent, due or not due, liquidated or unliquidated, and whether or not evidenced by any written confirmation.

“ Specified Derivatives Provider ” means any Person that (a) at the time it enters into a Specified Derivatives Contract with a Loan Party, is a Lender or an Affiliate of a Lender or (b) at the time it (or its Affiliate) becomes a Lender (including on the Effective Date), is a party to a Specified Derivatives Contract with a Loan Party, in each case in its capacity as a party to such Specified Derivatives Contract.

“ S&P ” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or any successor.

“ Stated Amount ” means the amount available to be drawn by a beneficiary under a Letter of Credit from time to time, as such amount may be increased or reduced from time to time in accordance with the terms of such Letter of Credit.

“ Subordinated Debt ” means Indebtedness for money borrowed of the Parent or any of its Subsidiaries that is subordinated in right of payment and otherwise to the Loans and the other Obligations and the Specified Derivatives Obligations, if any.

“ Subsidiary ” means, for any Person, any corporation, partnership, limited liability company or other entity of which at least a majority of the Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other individuals performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.

“ Swingline Commitment ” means the Swingline Lender’s obligation to make Swingline Loans pursuant to Section 2.5. in an amount up to, but not exceeding the amount set forth in the first sentence of Section 2.5.(a), as such amount may be reduced from time to time in accordance with the terms hereof.

“ Swingline Lender ” means Wells Fargo Bank, National Association, together with its respective successors and assigns.

“ Swingline Loan ” means a loan made by the Swingline Lender to the Borrower pursuant to Section 2.5.

“ Swingline Maturity Date ” means the date which is seven (7) Business Days prior to the Revolving Termination Date.

“ Swingline Note ” means the promissory note of the Borrower substantially in the form of Exhibit N, payable to the order of the Swingline Lender in a principal amount equal to the amount of the Swingline Commitment as originally in effect and otherwise duly completed.

“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“ Term Loan ” means a 5-Year Term Loan or a 7-Year Term Loan.

“ Term Loan Commitment ” means a 5-Year Term Loan Commitment or a 7-Year Term Loan Commitment.

“ Term Loan Lender ” means a 5-Year Term Loan Lender or a 7-Year Term Loan Lender.

“ Term Note ” means a 5-Year Term Note or a 7-Year Term Note.

“ Termination Date ” means, (a) with respect to the Revolving Loans and the Revolving Commitments, the Revolving Termination Date, (b) with respect to the 5-Year Term Loans, January 28, 2020 and (c) with respect to the 7-Year Term Loans, January 28, 2022.

“ Total Asset Value ” means the sum of the following (without duplication) of the Parent and its Subsidiaries for the fiscal quarter most recently ended: (a)(i) Net Operating Income for all Properties of the Borrower and its Subsidiaries (excluding Net Operating Income attributable to Properties disposed of during such fiscal quarter or acquired during the period of four fiscal quarters most recently ended) times (ii) 4 and divided by (iii) the applicable Capitalization Rate; (b) the total cost paid for any Property acquired during the period of four fiscal quarters most recently ended (less any amounts paid as a purchase price adjustment, held in escrow, retained as a contingency reserve, or other similar arrangements and prior to allocations of property purchase prices pursuant to Statement of Financial Accounting Standards number 141 and the like); (c) all cash and Cash Equivalents; (d) the book value of all Unimproved Land and Assets Under Development as of the end of such fiscal quarter; (e) the book value of all Unencumbered Mortgage Notes as of the end of such fiscal quarter; (f) all Marketable Securities; and (g) the Parent’s Ownership Share of the preceding items of any Unconsolidated Affiliate of the Parent. For purposes of determining Total Asset Value, to the extent the amount of Total Asset Value attributable to (w) Assets Under Development would exceed 10.0% of Total Asset Value, such excess shall be excluded, (x) Unencumbered Mortgage Notes would exceed 10.0% of Total Asset Value, such excess shall be excluded, (y) Unimproved Land would exceed 5.0% of Total Asset Value, such excess shall be excluded and (z) Marketable Securities would exceed 5.0% of Total Asset Value, such excess shall be excluded.

“ Total Indebtedness ” means, as of a given date, all liabilities of the Parent and its Subsidiaries which would, in conformity with GAAP, be properly classified as a liability on a consolidated balance sheet of the Parent and its Subsidiaries as of such date (excluding (i) allocations of property purchase prices pursuant to Statement of Financial Accounting Standards number 141 and the like and (ii) accounts payable and accrued expenses and assumed real estate lease obligations), and in any event shall include (without duplication): (a) all Indebtedness of the Parent and its Subsidiaries, (b) the Parent’s Ownership Share of Indebtedness of its Unconsolidated Affiliates, and (c) net obligations of the Parent and its Subsidiaries under any Derivatives Contracts not entered into as a hedge against existing Indebtedness, in an amount equal to the Derivatives Termination Value thereof.

“ Trading with the Enemy Act ” has the meaning given to that term in Section 6.1.(u).

“ Type ” with respect to any Revolving Loan or Term Loan, refers to whether such Loan or portion thereof is a LIBOR Loan or a Base Rate Loan.

“ UCC ” means the Uniform Commercial Code as in effect in any applicable jurisdiction.

“ Unconsolidated Affiliate ” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person.

“ Unencumbered Asset ” means a Property which satisfies all of the following requirements: (a) such Property is (i) owned in fee simple solely by the Borrower, a Wholly Owned Subsidiary of the Borrower, a Down REIT or a Wholly Owned Subsidiary of a Down REIT or (ii) leased solely by the Borrower, a Wholly Owned Subsidiary of the Borrower, a Down REIT or a Wholly Owned Subsidiary of a Down REIT pursuant to a ground lease having terms and conditions reasonably acceptable to the Administrative Agent; (b) such Property is not an Asset Under Development and is in service; (c) such Property is used for office, industrial or retail uses, or any other use incidental thereto, or in the case of any Property that was an Unencumbered Asset as of the Agreement Date (as defined in the Existing Credit Agreement), any other use then in effect for such Property; (d) neither such Property, nor any interest of the Borrower or such Subsidiary therein, is subject to any Lien (other than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof or Liens in favor of the Borrower or a Wholly Owned Subsidiary of the Borrower) or to any Negative Pledge (other than a Negative Pledge permitted under Sections 9.2.(b)(ii) and (iii)); (e) if such Property is owned by a Subsidiary, (i) none of the Borrower’s direct or indirect ownership interest in such Subsidiary is subject to any Lien (other than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof or Liens in favor of the Borrower or a Wholly Owned Subsidiary of the Borrower) or to any Negative Pledge (other than a Negative Pledge permitted under Sections 9.2.(b)(ii) and (iii)) and (ii) the Borrower directly, or indirectly through a Subsidiary, has the right to sell, transfer or otherwise dispose of such Property without the need to obtain the consent of any Person; and (f) such Property is free of all structural defects or major architectural deficiencies, title defects, environmental conditions or other adverse matters which, individually or collectively, materially impair the value of such Property. Notwithstanding the preceding sentence, a Property owned by a Foreign Subsidiary will be considered to be an Unencumbered Asset so long as: (1) such Property is (i) owned in fee simple (or the legal equivalent in the jurisdiction where such Property is located) by such Foreign Subsidiary or (ii) leased solely by such Foreign Subsidiary pursuant to a long-term lease having terms and conditions reasonably acceptable to the Administrative Agent; (2) all of the issued and outstanding Equity Interests of such Foreign Subsidiary are legally and beneficially owned by one or more of the Borrower and Wholly Owned Subsidiaries of the Borrower; (3) such Foreign Subsidiary has no Indebtedness other than (x) Nonrecourse Indebtedness and (y) other Indebtedness in an aggregate outstanding principal amount of less than 2.0% of the value of the assets of such Foreign Subsidiary (such value to be determined in a manner consistent with the definition of Total Asset Value or, if not contemplated under the definition of Total Asset Value, in a manner acceptable to the Administrative Agent); (4) neither such Property, nor any interest of such Foreign Subsidiary therein, is subject to any Lien (other than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof or Liens in favor of the Borrower or a Wholly Owned Subsidiary of the Borrower) or to any Negative Pledge (other than a Negative Pledge permitted under Sections 9.2.(b)(ii) and (iii)); and (5) such Property satisfies the requirements set forth in the immediately preceding clauses (b), (c), (e) and (f).

“ Unencumbered Asset Value ” means, at any given time, the sum of: (a)(i) Net Operating Income from all Unencumbered Assets (excluding Net Operating Income attributable to Unencumbered Assets acquired during the period of four fiscal quarters most recently ended) for the fiscal quarter most recently ending times (ii) 4 divided by (iii) the applicable Capitalization Rate; (b) the total cost paid for any Unencumbered Asset acquired during the period of four fiscal quarters most recently ended (less any amounts paid as a purchase price adjustment, held in escrow, retained as a contingency reserve, or other

similar arrangements and prior to allocations of property purchase prices pursuant to Statement of Financial Accounting Standards number 141 and the like); and (c) all Unrestricted Cash. To the extent that Properties (x) leased by the Borrower or a Subsidiary pursuant to a ground lease would, in the aggregate, account for more than 5.0% of Unencumbered Asset Value, such excess shall be excluded and (y) owned or leased by the Down REIT or a Subsidiary of the Down REIT would, in the aggregate, account for more than 15.0% of Unencumbered Asset Value (or such greater amount as the Requisite Lenders may approve in writing), such excess shall be excluded. To the extent that the Net Operating Income of Unencumbered Non-Domestic Properties would account for more than 20.0% of Unencumbered Net Operating Income, such excess shall be excluded. Net Operating Income attributable to an Unencumbered Asset disposed of during the applicable fiscal quarter shall be excluded from the calculation of Unencumbered Asset Value.

“ Unencumbered Mortgage Note ” means a promissory note satisfying all of the following requirements: (a) such promissory note is owned solely by the Borrower or a Wholly Owned Subsidiary of the Borrower; (b) such promissory note is secured by a Lien on real property improved only with office, retail or industrial buildings, any other use incidental thereto or other improvements of a type similar to improvements located on the Properties as of the Agreement Date (as defined in the Existing Credit Agreement); (c) neither such promissory note, nor any interest of the Borrower or such Subsidiary therein, is subject to any Lien (other than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof or Liens in favor of the Borrower or a Wholly Owned Subsidiary of the Borrower) or to any Negative Pledge; (d) if such promissory note is owned by a Subsidiary, (i) none of the Borrower’s direct or indirect ownership interest in such Subsidiary is subject to any Lien (other than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof or Liens in favor of the Borrower or a Wholly Owned Subsidiary of the Borrower) or to any Negative Pledge and (ii) the Borrower directly, or indirectly through a Subsidiary, has the right to sell, transfer or otherwise dispose of such promissory note without the need to obtain the consent of any Person; and (e) such real property and related improvements are not subject to any other Lien (other than Permitted Liens of the types described in clauses (a) through (c) or (e) through (i) of the definition thereof or Liens in favor of the Borrower or a Wholly Owned Subsidiary of the Borrower).

“ Unencumbered Net Operating Income ” means the sum of Net Operating Income from all Unencumbered Assets for the fiscal quarter most recently ending.

“ Unencumbered Non-Domestic Property ” means a Non-Domestic Property that is also an Unencumbered Asset.

“ Unimproved Land ” means land on which no development (other than improvements that are not material and are temporary in nature) has occurred.

“ Unrestricted Cash ” means cash and Cash Equivalents held by the Parent and its Subsidiaries other than (a) tenant deposits and (b) other cash and Cash Equivalents that are subject to a Lien or a Negative Pledge or the disposition of which is restricted in any way.

“ Unsecured Debt Service ” means, for a given period, Debt Service for such period, with respect to Unsecured Indebtedness of the Parent and its Subsidiaries.

“ Unsecured Indebtedness ” means, with respect to a Person as of any given date, the aggregate principal amount of all Indebtedness of such Person outstanding at such date that is not Secured Indebtedness (excluding Indebtedness associated with Unconsolidated Affiliates) and in the case of the Parent shall include (without duplication) Indebtedness that does not constitute Secured Indebtedness.

Indebtedness secured solely by a pledge of Equity Interests which is also recourse to the Borrower or a Guarantor shall not be treated as Secured Indebtedness.

“ U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

“ U.S. Tax Compliance Certificate ” has the meaning assigned to such term in Section 3.10.(g)(ii)(B)(III).

“ Wells Fargo ” means Wells Fargo Bank, National Association, and its successors and assigns.

“ Wholly Owned Subsidiary ” means any Subsidiary of a Person in respect of which all of the Equity Interests (other than, in the case of a corporation, directors’ qualifying shares) are at the time directly or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person.

“ Withdrawal Liability ” means any liability as a result of a complete or partial withdrawal from a Multiemployer Plan as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

“ Withholding Agent ” means (a) the Borrower, (b) any other Loan Party and (c) the Administrative Agent, as applicable.

“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.2. General; References to Central Time.

Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted or determined in accordance with GAAP from time to time; provided that, if at any time any change in GAAP (or the application thereof) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Requisite Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (and the application thereof) (subject to the approval of the appropriate Lenders pursuant to Section 12.6.); provided further that, (i) until so amended, such ratio or requirement shall continue to be computed in conformity with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations made before and after giving effect to such change in GAAP (and the application thereof). Notwithstanding the preceding sentence, the calculation of liabilities shall not include any fair value adjustments to the carrying value of liabilities to record such liabilities at fair value pursuant to electing the fair value option election, or to purchase price allocations in business combinations or asset acquisitions, in either case, under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other standards of the Financial Accounting Standards Board allowing entities to elect fair value option for financial liabilities. References in this Agreement to “Sections”, “Articles”, “Exhibits” and “Schedules” are to sections, articles, exhibits and schedules herein and hereto unless otherwise indicated. References in this Agreement to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) except as expressly provided otherwise in any Loan Document, shall include all documents, instruments or agreements issued or executed in replacement

thereof, to the extent permitted hereby and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, supplemented, restated or otherwise modified from time to time to the extent not otherwise stated herein or prohibited hereby and in effect at any given time. Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter. Unless explicitly set forth to the contrary, a reference to “Subsidiary” means a Subsidiary of the Parent or a Subsidiary of such Subsidiary and a reference to an “Affiliate” means a reference to an Affiliate of the Borrower. Titles and captions of Articles, Sections, subsections and clauses in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless otherwise indicated, all references to time are references to Central time, daylight or standard, as applicable.

Section 1.3. Financial Attributes of Parent.

Notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, when determining compliance by the Borrower with any financial covenant contained in any of the Loan Documents, including without limitation, those contained in Section 9.1. (other than Section 9.1.(h)), the Equity Interests and other assets which the Parent is permitted to own under Section 7.15.(a)(B), together with any income associated with such Equity Interest and other assets, shall be excluded except to the extent any such Equity Interests and other assets have been contributed to the Borrower or any of the Borrower’s Subsidiaries.

ARTICLE II. CREDIT FACILITY

Section 2.1. Revolving Loans.

(a) Making of Revolving Loans . Subject to the terms and conditions set forth in this Agreement, including without limitation, Section 2.16., each Revolving Lender severally and not jointly agrees to make Revolving Loans in Dollars to the Borrower during the period from and including the Effective Date to but excluding the Revolving Termination Date, in an aggregate principal amount at any one time outstanding up to, but not exceeding, such Lender’s Revolving Commitment. Each borrowing of Base Rate Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess thereof. Each borrowing and Continuation under Section 2.10. of, and each Conversion under Section 2.11. of Base Rate Loans into, LIBOR Loans shall be in an aggregate minimum of $1,000,000 and integral multiples of $100,000 in excess of that amount. Notwithstanding the immediately preceding two sentences but subject to Section 2.16., a borrowing of Revolving Loans may be in the aggregate amount of the unused Revolving Commitments. Within the foregoing limits and subject to the terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow Revolving Loans.

(b) Requests for Revolving Loans . Not later than 12:00 p.m. Central time at least one (1) Business Day prior to a borrowing of Revolving Loans that are to be Base Rate Loans and not later than 12:00 p.m. Central time at least three (3) Business Days prior to a borrowing of Revolving Loans that are to be LIBOR Loans, the Borrower shall deliver to the Administrative Agent a Notice of Revolving Borrowing. Each Notice of Revolving Borrowing shall specify the aggregate principal amount of the Revolving Loans to be borrowed, the date such Revolving Loans are to be borrowed (which must be a Business Day), the use of the proceeds of such Revolving Loans, the Type of the requested Revolving Loans, and if such Revolving Loans are to be LIBOR Loans, the initial Interest Period for such Revolving Loans. Each Notice of Revolving Borrowing shall be irrevocable once given and binding on the Borrower. Prior to delivering a Notice of Revolving Borrowing, the Borrower may (without specifying whether a Revolving Loan will be a Base Rate Loan or a LIBOR Loan) request that the Administrative

Agent provide the Borrower with the most recent LIBOR available to the Administrative Agent. The Administrative Agent shall provide such quoted rate to the Borrower on the date of such request or as soon as possible thereafter.

(c) Funding of Revolving Loans . Promptly after receipt of a Notice of Revolving Borrowing under the immediately preceding subsection (b), the Administrative Agent shall notify each Revolving Lender of the proposed borrowing. Each Revolving Lender shall deposit an amount equal to the Revolving Loan to be made by such Lender to the Borrower with the Administrative Agent at the Principal Office, in immediately available funds not later than 9:00 a.m. Central time on the date of such proposed Revolving Loans. Subject to fulfillment of all applicable conditions set forth herein, the Administrative Agent shall make available to the Borrower in the account specified in the Disbursement Instruction Agreement, not later than 12:00 p.m. Central time on the date of the requested borrowing of Revolving Loans, the proceeds of such amounts received by the Administrative Agent.

(d) Assumptions Regarding Funding by Revolving Lenders . With respect to Revolving Loans to be made after the Effective Date, unless the Administrative Agent shall have been notified by any Revolving Lender that such Lender will not make available to the Administrative Agent a Revolving Loan to be made by such Lender in connection with any borrowing, the Administrative Agent may assume that such Lender will make the proceeds of such Revolving Loan available to the Administrative Agent in accordance with this Section, and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower the amount of such Revolving Loan to be provided by such Lender. In such event, if such Lender does not make available to the Administrative Agent the proceeds of such Revolving Loan, then such Lender and the Borrower severally agree to pay to the Administrative Agent on demand the amount of such Revolving Loan with interest thereon, for each day from and including the date such Revolving Loan is made available to the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans that are Revolving Loans. If the Borrower and such Lender shall pay the amount of such interest to the Administrative Agent for the same or overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays to the Administrative Agent the amount of such Revolving Loan, the amount so paid shall constitute such Lender’s Revolving Loan included in the borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Revolving Lender that shall have failed to make available the proceeds of a Revolving Loan to be made by such Lender.

Section 2.2. Term Loans.

(a) 5-Year Term Loans . Pursuant to the Existing Credit Agreement, the 5-Year Term Loan Lenders agreed that certain “Loans” under and as defined in the Prior Term Loan Agreement were deemed to be 5-Year Term Loans under the Existing Credit Agreement or made 5-Year Term Loans to the Parent, as applicable, and assumed by the Borrower hereunder. The Borrower, the Administrative Agent and each 5-Year Term Loan Lender agree that the aggregate outstanding principal amount of the 5-Year Term Loan owing to such 5-Year Term Loan Lender on the Effective Date is set forth on Schedule I.

(b) 7-Year Term Loans . Pursuant to the Existing Credit Agreement, the 7-Year Term Loan Lenders made 7-Year Term Loans to the Parent and assumed by the Borrower hereunder. The Borrower, the Administrative Agent and each 7-Year Term Loan Lender agree that the aggregate outstanding

principal amount of the 7-Year Term Loan owing to such 7-Year Term Loan Lender on the Effective Date is set forth on Schedule I.

Section 2.3. Bid Rate Loans.

(a) Bid Rate Loans . At any time during the period from the Effective Date to but excluding the Revolving Termination Date, and so long as the Rated Party continues to maintain an Investment Grade Rating from at least one Rating Agency, the Borrower may, as set forth in this Section, request the Revolving Lenders to make offers to make Bid Rate Loans to the Borrower in Dollars. The Revolving Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any such offers in the manner set forth in this Section.

(b) Requests for Bid Rate Loans . When the Borrower wishes to request from the Revolving Lenders offers to make Bid Rate Loans, it shall give the Administrative Agent notice (a “Bid Rate Quote Request”) so as to be received no later than 12:00 p.m. Central time on (x) the Business Day immediately preceding the date of borrowing proposed therein, in the case of an Absolute Rate Auction and (y) the date 4 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction. The Administrative Agent shall deliver to each Revolving Lender a copy of each Bid Rate Quote Request promptly upon receipt thereof by the Administrative Agent. The Borrower may request offers to make Bid Rate Loans for up to 3 different Interest Periods in any one Bid Rate Quote Request; provided that if granted each separate Interest Period shall be deemed to be a separate borrowing (a “Bid Rate Borrowing”). Each Bid Rate Quote Request shall be substantially in the form of Exhibit O and shall specify as to each Bid Rate Borrowing all of the following:

(i) the proposed date of such Bid Rate Borrowing, which shall be a Business Day;

(ii) the aggregate amount of such Bid Rate Borrowing which shall be in a minimum amount of $5,000,000 and integral multiples of $500,000 in excess thereof which shall not cause any of the limits specified in Section 2.16. to be violated;

(iii) whether the Bid Rate Quote Request is for LIBOR Margin Loans or Absolute Rate Loans; and

(iv) the duration of the Interest Period applicable thereto, which shall not extend beyond the Revolving Termination Date.

The Borrower shall not deliver any Bid Rate Quote Request within 5 Business Days of the giving of any other Bid Rate Quote Request and the Borrower shall not deliver more than 1 Bid Rate Quote Requests in any calendar month.

(i) Each Revolving Lender may submit one or more Bid Rate Quotes, each containing an offer to make a Bid Rate Loan in response to any Bid Rate Quote Request; provided that, if the Borrower’s request under Section 2.3.(b) specified more than one Interest Period, such Revolving Lender may make a single submission containing only one Bid Rate Quote for each such Interest Period. Each Bid Rate Quote must be submitted to the Administrative Agent not later than 9:30 a.m. Central time (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction and (y) on the date 3 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction, and in either case the Administrative Agent shall disregard any Bid Rate Quote received after such time; provided that the Revolving Lender

then acting as the Administrative Agent may submit a Bid Rate Quote only if it notifies the Borrower of the terms of the offer contained therein not later than 30 minutes prior to the latest time by which the Revolving Lenders must submit applicable Bid Rate Quotes. Any Bid Rate Quote so made shall be irrevocable except with the consent of the Administrative Agent given at the request of the Borrower. Such Bid Rate Loans may be funded by a Revolving Lender’s Designated Lender (if any) as provided in Section 12.5.(g); however, such Revolving Lender shall not be required to specify in its Bid Rate Quote whether such Bid Rate Loan will be funded by such Designated Lender.

(ii) Each Bid Rate Quote shall be substantially in the form of Exhibit P and shall specify:

(A) the proposed date of borrowing and the Interest Period therefor;

(B) the principal amount of the Bid Rate Loan for which each such offer is being made; provided that the aggregate principal amount of all Bid Rate Loans for which a Revolving Lender submits Bid Rate Quotes (x) may be greater or less than the Revolving Commitment of such Revolving Lender but (y) shall not exceed the principal amount of the Bid Rate Borrowing for a particular Interest Period for which offers were requested; provided further that any Bid Rate Quote shall be in a minimum amount of $5,000,000 and integral multiples of $500,000 in excess thereof;

(C) in the case of an Absolute Rate Auction, the rate of interest per annum (rounded upwards, if necessary, to the nearest one-hundredth of one percent (0.01%)) offered for each such Absolute Rate Loan (the “Absolute Rate”);

(D) in the case of a LIBOR Auction, the margin above or below applicable LIBOR (the “LIBOR Margin”) offered for each such LIBOR Margin Loan, expressed as a percentage (rounded upwards, if necessary, to the nearest one-hundredth of one percent (0.01%)) to be added to (or subtracted from) the applicable LIBOR; and

(E) the identity of the quoting Revolving Lender.

Unless otherwise agreed by the Administrative Agent and the Borrower, no Bid Rate Quote shall contain qualifying, conditional or similar language or propose terms other than or in addition to those set forth in the applicable Bid Rate Quote Request and, in particular, no Bid Rate Quote may be conditioned upon acceptance by the Borrower of all (or some specified minimum) of the principal amount of the Bid Rate Loan for which such Bid Rate Quote is being made.

(d) Notification by Administrative Agent . The Administrative Agent shall, as promptly as practicable after the Bid Rate Quotes are submitted (but in any event not later than 10:30 a.m. Central time (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction or (y) on the date 3 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction), notify the Borrower of the terms (i) of any Bid Rate Quote submitted by a Revolving Lender that is in accordance with Section 2.3.(c) and (ii) of any Bid Rate Quote that amends, modifies or is otherwise inconsistent with a previous Bid Rate Quote submitted by such Revolving Lender with respect to the same Bid Rate Quote Request. Any such subsequent Bid Rate Quote shall be disregarded by the Administrative Agent unless such subsequent Bid Rate Quote is submitted solely to correct a manifest error in such former Bid Rate Quote. The Administrative Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of the Bid Rate Borrowing for which offers have been received and (B) the principal amounts and

Absolute Rates or LIBOR Margins, as applicable, so offered by each Revolving Lender (identifying the Revolving Lender that made such Bid Rate Quote).

(e) Acceptance by Borrower .

(i) Not later than 11:30 a.m. Central time (x) on the proposed date of borrowing, in the case of an Absolute Rate Auction and (y) on the date 3 Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction, the Borrower shall notify the Administrative Agent of its acceptance or nonacceptance of the Bid Rate Quotes so notified to it pursuant to Section 2.3.(d). which notice shall be in the form of Exhibit Q. In the case of acceptance, such notice shall specify the aggregate principal amount of Bid Rate Quotes for each Interest Period that are accepted. The failure of the Borrower to give such notice by such time shall constitute nonacceptance. The Borrower may accept any Bid Rate Quote in whole or in part; provided that:

(A) the aggregate principal amount of each Bid Rate Borrowing may not exceed the applicable amount set forth in the related Bid Rate Quote Request;

(B) the aggregate principal amount of each Bid Rate Borrowing shall comply with the provisions of Section 2.3.(b)(ii) and together with all other Bid Rate Loans then outstanding shall not cause the limits specified in Section 2.16. to be violated;

(C) acceptance of Bid Rate Quotes may be made only in ascending order of Absolute Rates or LIBOR Margins, as applicable, in each case beginning with the lowest rate so offered;

(D) any acceptance in part by the Borrower shall be in a minimum amount of $5,000,000 and integral multiples of $500,000 in excess thereof; and

(E) the Borrower may not accept any Bid Rate Quote that fails to comply with Section 2.3.(c) or otherwise fails to comply with the requirements of this Agreement.

(ii) If Bid Rate Quotes are made by two or more Revolving Lenders with the same Absolute Rates or LIBOR Margins, as applicable, for a greater aggregate principal amount than the amount in respect of which Bid Rate Quotes are permitted to be accepted for the related Interest Period, the principal amount of Bid Rate Loans in respect of which such Bid Rate Quotes are accepted shall be allocated by the Administrative Agent among such Revolving Lenders in proportion to the aggregate principal amount of such Bid Rate Quotes. Determinations by the Administrative Agent of the amounts of Bid Rate Loans shall be conclusive in the absence of manifest error.

(f) Obligation to Make Bid Rate Loans . The Administrative Agent shall promptly (and in any event not later than (x) 12:30 p.m. Central time on the proposed date of borrowing of Absolute Rate Loans and (y) on the date 3 Business Days prior to the proposed date of borrowing of LIBOR Margin Loans) notify each Revolving Lender as to whose Bid Rate Quote has been accepted and the amount and rate thereof. A Revolving Lender who is notified that it has been selected to make a Bid Rate Loan may designate its Designated Lender (if any) to fund such Bid Rate Loan on its behalf, as described in Section 12.5.(g). Any Designated Lender which funds a Bid Rate Loan shall on and after the time of such funding become the obligee in respect of such Bid Rate Loan and be entitled to receive payment thereof when due. No Revolving Lender shall be relieved of its obligation to fund a Bid Rate Loan, and no Designated Lender shall assume such obligation, prior to the time the applicable Bid Rate Loan is funded. Any

Revolving Lender whose offer to make any Bid Rate Loan has been accepted shall, not later than 1:30 p.m. Central time on the date specified for the making of such Loan, make the amount of such Loan available to the Administrative Agent at its Principal Office in immediately available funds, for the account of the Borrower. The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower not later than 2:30 p.m. Central time on such date by depositing the same, in immediately available funds, in an account of the Borrower designated by the Borrower in the Disbursement Instruction Agreement.

(g) No Effect on Revolving Commitment . Except for the purpose and to the extent expressly stated in Section 2.13. and 2.16., the amount of any Bid Rate Loan made by any Revolving Lender shall not constitute a utilization of such Revolving Lender’s Revolving Commitment.

Section 2.4. Letters of Credit.

(a) Letters of Credit . Subject to the terms and conditions of this Agreement, including without limitation, Section 2.16., the Issuing Banks, on behalf of the Revolving Lenders, agree to issue for the account of the Borrower (which may be issued in support of obligations of any Subsidiary of the Borrower) during the period from and including the Effective Date to, but excluding, the date thirty (30) days prior to the Revolving Termination Date, one or more standby letters of credit, each denominated in Dollars (each a “Letter of Credit”), up to a maximum aggregate Stated Amount at any one time outstanding not to exceed $100,000,000 as such amount may be reduced from time to time in accordance with the terms hereof (the “L/C Commitment Amount”); provided, that an Issuing Bank shall not be obligated to issue any Letter of Credit if, after giving effect to such issuance, the aggregate Stated Amount of Letters of Credit issued by such Issuing Bank would exceed the lesser of (i) 50.0% of the L/C Commitment Amount and (ii) the Revolving Commitment of such Issuing Bank in its capacity as a Revolving Lender.

(b) Terms of Letters of Credit . At the time of issuance, the amount, form, terms and conditions of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject to approval by the applicable Issuing Bank and the Borrower. Notwithstanding the foregoing, in no event may (i) the expiration date of any Letter of Credit extend beyond the date that is 30 days prior to the Revolving Termination Date, or (ii) any Letter of Credit have a duration in excess of one year; provided, however, a Letter of Credit may contain a provision providing for the automatic extension of the expiration date in the absence of a notice of non-renewal from the applicable Issuing Bank but in no event shall any such provision permit the extension of the current expiration date of such Letter of Credit beyond the earlier of (x) the date that is 30 days prior to the Revolving Termination Date and (y) the date one year after the current expiration date. Notwithstanding the foregoing, a Letter of Credit may, as a result of its express terms or as the result of the effect of an automatic extension provision, have an expiration date of not more than one year beyond the Revolving Termination Date (any such Letter of Credit being referred to as an “Extended Letter of Credit”), so long as the Borrower delivers to the Administrative Agent for its benefit and the benefit of the applicable Issuing Bank and the Revolving Lenders no later than 30 days prior to the Revolving Termination Date, Cash Collateral for such Letter of Credit for deposit into the Letter of Credit Collateral Account in an amount equal to the Stated Amount of such Letter of Credit; provided, that the obligations of the Borrower under this Section in respect of such Extended Letters of Credit shall survive the termination of this Agreement and shall remain in effect until no such Extended Letters of Credit remain outstanding. If the Borrower fails to provide Cash Collateral with respect to any Extended Letter of Credit by the date 30 days prior to the Revolving Termination Date, such failure shall be treated as a drawing under such Extended Letter of Credit (in an amount equal to the maximum Stated Amount of such Letter of Credit), which shall be reimbursed (or participations therein funded) by the Revolving Lenders in accordance with the immediately following subsections (i) and (j), with the proceeds being utilized to provide Cash Collateral for such Letter of Credit. The initial

Stated Amount of each Letter of Credit shall be at least $50,000 (or such lesser amount as may be acceptable to the applicable Issuing Bank, the Administrative Agent and the Borrower).

(c) Requests for Issuance of Letters of Credit . The Borrower shall give the applicable Issuing Bank and the Administrative Agent written notice (which may be by telecopy, and if previously consented to by such Issuing Bank in writing, by electronic mail or other similar form of electronic communication) at least five (5) Business Days prior to the requested date of issuance of a Letter of Credit, such notice to describe in reasonable detail the proposed terms of such Letter of Credit and the nature of the transactions or obligations proposed to be supported by such Letter of Credit, and in any event shall set forth with respect to such Letter of Credit the proposed (i) initial Stated Amount, (ii) beneficiary, and (iii) expiration date. The Borrower shall also execute and deliver such customary applications and agreements for standby letters of credit, and other forms as requested from time to time by the applicable Issuing Bank. Provided the Borrower has given the notice prescribed by the first sentence of this subsection and delivered such applications and agreements referred to in the preceding sentence, subject to the other terms and conditions of this Agreement, including the satisfaction of any applicable conditions precedent set forth in Section 5.2., the applicable Issuing Bank shall issue the requested Letter of Credit on the requested date of issuance for the benefit of the stipulated beneficiary but in no event shall such Issuing Bank be required to issue the requested Letter of Credit prior to the date five (5) Business Days following the date after which such Issuing Bank has received all of the items required to be delivered to it under this subsection. An Issuing Bank shall not at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause such Issuing Bank or any Revolving Lender to exceed any limits imposed by, any Applicable Law. References herein to “issue” and derivations thereof with respect to Letters of Credit shall also include extensions or modifications of any outstanding Letters of Credit, unless the context otherwise requires. Upon the written request of the Borrower, an Issuing Bank shall deliver to the Borrower a copy of each Letter of Credit issued by such Issuing Bank within a reasonable time after the date of issuance thereof. To the extent any term of a Letter of Credit Document (excluding any certificate or other document presented in connection with a drawing under such Letter of Credit) is inconsistent with a term of any Loan Document, the term of such Loan Document shall control. The Borrower shall examine the copy of any Letter of Credit or any amendment to a Letter of Credit that is delivered to it by the applicable Issuing Bank and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly (but in any event, within 5 Business Days after the later of (x) receipt by the beneficiary of such Letter of Credit of the original of, or amendment to, such Letter of Credit, as applicable and (y) receipt by the Borrower of a copy of such Letter of Credit or amendment, as applicable) notify such Issuing Bank. The Borrower shall be conclusively deemed to have waived any such claim against such Issuing Bank and its correspondents unless such notice is given as aforesaid.

(d) Reimbursement Obligations . Following receipt by an Issuing Bank from the beneficiary of a Letter of Credit issued by such Issuing Bank of any demand for payment under such Letter of Credit and such Issuing Bank’s determination that such demand for payment complies with the requirements of such Letter of Credit, such Issuing Bank shall promptly notify the Borrower and the Administrative Agent of the amount to be paid by such Issuing Bank as a result of such demand and the date on which payment is to be made by such Issuing Bank to such beneficiary in respect of such demand; provided, however, that an Issuing Bank’s failure to give, or delay in giving, such notice shall not discharge the Borrower in any respect from the applicable Reimbursement Obligation. The Borrower hereby absolutely, unconditionally and irrevocably agrees to pay and reimburse such Issuing Bank for the amount of each demand for payment under such Letter of Credit at or prior to the date on which payment is to be made by such Issuing Bank to the beneficiary thereunder, without presentment, demand, protest or other formalities of any kind. Upon receipt by an Issuing Bank of any payment in respect of any Reimbursement Obligation in respect of a Letter of Credit issued by such Issuing Bank, such Issuing Bank shall promptly pay to each Revolving Lender that has acquired a participation therein under the

second sentence of the immediately following subsection (i) such Lender’s Revolving Commitment Percentage of such payment.

(e) Manner of Reimbursement . Upon its receipt of a notice referred to in the immediately preceding subsection (d), the Borrower shall advise the Administrative Agent and the applicable Issuing Bank whether or not the Borrower intends to borrow hereunder to finance its obligation to reimburse such Issuing Bank for the amount of the related demand for payment and, if it does, the Borrower shall submit a timely request for such borrowing as provided in the applicable provisions of this Agreement. If the Borrower fails to so advise the Administrative Agent and such Issuing Bank, or if the Borrower fails to reimburse such Issuing Bank for a demand for payment under a Letter of Credit issued by such Issuing Bank by the date of such payment, the failure of which such Issuing Bank shall promptly notify the Administrative Agent, then (i) if the applicable conditions contained in Article V. would permit the making of Revolving Loans, the Borrower shall be deemed to have requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an amount equal to the unpaid Reimbursement Obligation and the Administrative Agent shall give each Revolving Lender prompt notice of the amount of the Revolving Loan to be made available to the Administrative Agent not later than 10:00 a.m. Central time and (ii) if such conditions would not permit the making of Revolving Loans, the provisions of subsection (j) of this Section shall apply. The limitations set forth in the second sentence of Section 2.1.(a) shall not apply to any borrowing of Base Rate Loans under this subsection.

(f) Effect of Letters of Credit on Revolving Commitments . Upon the issuance by an Issuing Bank of any Letter of Credit and until such Letter of Credit shall have expired or been cancelled, the Revolving Commitment of each Revolving Lender shall be deemed to be utilized for all purposes of this Agreement in an amount equal to the product of (i) such Lender’s Revolving Commitment Percentage and (ii) the sum of (A) the Stated Amount of such Letter of Credit plus (B) (without duplication) any related Reimbursement Obligations then outstanding.

(g) Issuing Bank’s Duties Regarding Letters of Credit; Unconditional Nature of Reimbursement Obligations . In examining documents presented in connection with drawings under Letters of Credit and making payments under such Letters of Credit against such documents, an Issuing Bank shall only be required to use the same standard of care as it uses in connection with examining documents presented in connection with drawings under letters of credit in which it has not sold participations and making payments under such letters of credit. The Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, none of the Issuing Banks, the Administrative Agent or any of the Lenders shall be responsible for, and the Borrower’s obligations in respect of Letters of Credit shall not be affected in any manner by, (i) the form, validity, sufficiency, accuracy, genuineness or legal effects of any document submitted by any party in connection with the application for and issuance of or any drawing honored under any Letter of Credit even if such document should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, facsimile, electronic mail, telecopy or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of Credit, or of the proceeds of any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Issuing Banks, the Administrative Agent or the Lenders. None of the above shall affect, impair or prevent the vesting of any of the Issuing

Banks’ or Administrative Agent’s rights or powers hereunder. Any action taken or omitted to be taken by an Issuing Bank under or in connection with any Letter of Credit issued by it, if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment), shall not create against such Issuing Bank any liability to the Borrower, the Administrative Agent, any other Issuing Bank or any Lender. In this connection, the obligation of the Borrower to reimburse an Issuing Bank for any drawing made under any Letter of Credit issued by it, and to repay any Revolving Loan made pursuant to the second sentence of the immediately preceding subsection (e), shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement and any other applicable Letter of Credit Document under all circumstances whatsoever, including without limitation, the following circumstances: (A) any lack of validity or enforceability of any Letter of Credit Document or any term or provisions therein; (B) any amendment or waiver of or any consent to departure from all or any of the Letter of Credit Documents; (C) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against any Issuing Bank, the Administrative Agent, any Lender, any beneficiary of a Letter of Credit or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any breach of contract or dispute between the Borrower, any Issuing Bank, the Administrative Agent, any Lender or any other Person; (E) any demand, statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein or made in connection therewith being untrue or inaccurate in any respect whatsoever; (F) any non-application or misapplication by the beneficiary of a Letter of Credit or of the proceeds of any drawing under such Letter of Credit; (G) payment by an Issuing Bank under any Letter of Credit issued by it against presentation of a draft or certificate which does not strictly comply with the terms of such Letter of Credit; and (H) any other act, omission to act, delay or circumstance whatsoever that might, but for the provisions of this Section, constitute a legal or equitable defense to or discharge of, or provide a right of setoff against, the Borrower’s Reimbursement Obligations. Notwithstanding anything to the contrary contained in this Section or Section 12.9., but not in limitation of the Borrower’s unconditional obligation to reimburse an Issuing Bank for any drawing made under a Letter of Credit issued by it as provided in this Section and to repay any Revolving Loan made pursuant to the second sentence of the immediately preceding subsection (e), the Borrower shall have no obligation to indemnify the Administrative Agent, any Issuing Bank or any Lender in respect of any liability incurred by the Administrative Agent, such Issuing Bank or such Lender arising solely out of the gross negligence or willful misconduct of the Administrative Agent, such Issuing Bank or such Lender in respect of a Letter of Credit as determined by a court of competent jurisdiction in a final, non-appealable judgment. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank that issued such Letter of Credit may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. Except as otherwise provided in this Section, nothing in this Section shall affect any rights the Borrower may have with respect to the gross negligence or willful misconduct of the Administrative Agent, any Issuing Bank or any Lender with respect to any Letter of Credit.

(h) Amendments, Etc . The issuance by an Issuing Bank of any amendment, supplement or other modification to any Letter of Credit issued by it shall be subject to the same conditions applicable under this Agreement to the issuance of new Letters of Credit (including, without limitation, that the request therefor be made through the applicable Issuing Bank and the Administrative Agent), and no such amendment, supplement or other modification shall be issued unless either (i) the respective Letter of Credit affected thereby would have complied with such conditions had it originally been issued hereunder in such amended, supplemented or modified form or (ii) the Administrative Agent and the Requisite Class Lenders of the Revolving Lenders (or all of the Revolving Lenders if required by Section 12.6.) shall

have consented thereto. In connection with any such amendment, supplement or other modification, the Borrower shall pay the fees, if any, payable under the last sentence of Section 3.5.(c).

(i) Revolving Lenders’ Participation in Letters of Credit . Immediately upon the issuance by an Issuing Bank of any Letter of Credit each Revolving Lender shall be deemed to have absolutely, irrevocably and unconditionally purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Revolving Commitment Percentage of the liability of such Issuing Bank with respect to such Letter of Credit and each Revolving Lender thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to such Issuing Bank to pay and discharge when due, to the extent and in the manner set forth in the immediately following subsection (j) below, such Lender’s Revolving Commitment Percentage of such Issuing Bank’s liability under such Letter of Credit. In addition, upon the making of each payment by a Revolving Lender to the Administrative Agent for the account of an Issuing Bank in respect of any Letter of Credit issued by it pursuant to the immediately following subsection (j), such Lender shall, automatically and without any further action on the part of such Issuing Bank, the Administrative Agent or such Lender, acquire (i) a participation in an amount equal to such payment in the Reimbursement Obligation owing to such Issuing Bank by the Borrower in respect of such Letter of Credit and (ii) a participation in a percentage equal to such Lender’s Revolving Commitment Percentage in any interest or other amounts payable by the Borrower in respect of such Reimbursement Obligation (other than the Fees payable to an Issuing Bank pursuant to the second and the last sentences of Section 3.5.(c)).

(j) Payment Obligation of Revolving Lenders . Each Revolving Lender severally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, on demand in immediately available funds in Dollars the amount of such Lender’s Revolving Commitment Percentage of each drawing paid by an Issuing Bank under each Letter of Credit issued by it to the extent such amount is not reimbursed by the Borrower pursuant to the immediately preceding subsection (d); provided, however, that in respect of any drawing under any Letter of Credit, the maximum amount that any Revolving Lender shall be required to fund, whether as a Revolving Loan or as a participation, shall not exceed such Lender’s Revolving Commitment Percentage of such drawing except as otherwise provided in Section 3.9.(d). If the notice referenced in the second sentence of Section 2.4.(e) is received by a Revolving Lender not later than 9:00 a.m. Central time, then such Lender shall make such payment available to the Administrative Agent not later than 12:00 p.m. Central time on the date of demand therefor; otherwise, such payment shall be made available to the Administrative Agent not later than 11:00 a.m. Central time on the next succeeding Business Day. Each Revolving Lender’s obligation to make such payments to the Administrative Agent under this subsection, and the Administrative Agent’s right to receive the same for the account of applicable Issuing Bank, shall be absolute, irrevocable and unconditional and shall not be affected in any way by any circumstance whatsoever, including without limitation, (i) the failure of any other Revolving Lender to make its payment under this subsection, (ii) the financial condition of the Borrower or any other Loan Party, (iii) the existence of any Default or Event of Default, including any Event of Default described in Section 10.1.(e) or (f), (iv) the termination of the Revolving Commitments or (v) the delivery of Cash Collateral in respect of any Extended Letter of Credit. Each such payment to the Administrative Agent for the account of an Issuing Bank shall be made without any offset, abatement, withholding or deduction whatsoever.

(k) Information to Lenders . Promptly following any change in Letters of Credit outstanding, the applicable Issuing Bank shall deliver to the Administrative Agent, who shall promptly deliver the same to each Revolving Lender and the Borrower, a notice describing the aggregate amount of all Letters of Credit issued by such Issuing Bank and outstanding at such time. Upon the request of any Revolving Lender from time to time, an Issuing Bank shall deliver any other information reasonably requested by such Lender with respect to each Letter of Credit issued by such Issuing Bank and then outstanding.

Other than as set forth in this subsection, an Issuing Bank shall have no duty to notify the Lenders regarding the issuance or other matters regarding Letters of Credit issued hereunder. The failure of an Issuing Bank to perform its requirements under this subsection shall not relieve any other Issuing Bank from its obligations under this Agreement or any Lender from its obligations under the immediately preceding subsection (j).

(l) Extended Letters of Credit . Each Revolving Lender confirms that its obligations under the immediately preceding subsections (i) and (j) shall be reinstated in full and apply if the delivery of any Cash Collateral in respect of an Extended Letter of Credit is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise.

Section 2.5. Swingline Loans.

(a) Swingline Loans . Subject to the terms and conditions hereof, including without limitation Section 2.16., the Swingline Lender agrees to make Swingline Loans in Dollars to the Borrower, during the period from the Effective Date to but excluding the Swingline Maturity Date, in an aggregate principal amount at any one time outstanding up to, but not exceeding, $75,000,000, as such amount may be reduced from time to time in accordance with the terms hereof. If at any time the aggregate principal amount of the Swingline Loans outstanding at such time exceeds the Swingline Commitment in effect at such time, the Borrower shall promptly, and in any event within 1 Business Day following demand, pay the Administrative Agent for the account of the Swingline Lender the amount of such excess. Subject to the terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow Swingline Loans hereunder.

(b) Procedure for Borrowing Swingline Loans . The Borrower shall give the Administrative Agent and the Swingline Lender notice pursuant to a Notice of Swingline Borrowing or telephonic notice of each borrowing of a Swingline Loan. Each Notice of Swingline Borrowing shall be delivered to the Swingline Lender no later than 12:00 p.m. Central time on the proposed date of such borrowing. Any telephonic notice shall include all information to be specified in a written Notice of Swingline Borrowing and shall be promptly confirmed in writing by the Borrower pursuant to a Notice of Swingline Borrowing sent to the Swingline Lender by telecopy on the same day of the giving of such telephonic notice. Not later than 2:00 p.m. Central time on the date of the requested Swingline Loan and subject to satisfaction of the applicable conditions set forth in Section 5.2. for such borrowing, the Swingline Lender will make the proceeds of such Swingline Loan available to the Borrower in Dollars, in immediately available funds, at the account specified by the Borrower in the Disbursement Instruction Agreement.

(c) Interest . Swingline Loans shall bear interest at a per annum rate equal to the Base Rate as in effect from time to time plus the Applicable Margin for Revolving Loans that are Base Rate Loans or at such other rate or rates as the Borrower and the Swingline Lender may agree from time to time in writing. Interest on Swingline Loans is solely for the account of the Swingline Lender (except to the extent a Revolving Lender acquires a participating interest in a Swingline Loan pursuant to the immediately following subsection (e)). All accrued and unpaid interest on Swingline Loans shall be payable on the dates and in the manner provided in Section 2.6. with respect to interest on Base Rate Loans (except as the Swingline Lender and the Borrower may otherwise agree in writing in connection with any particular Swingline Loan).

(d) Swingline Loan Amounts, Etc . Each Swingline Loan shall be in the minimum amount of $1,000,000 and integral multiples of $100,000 in excess thereof, or such other minimum amounts agreed to by the Swingline Lender and the Borrower. Any voluntary prepayment of a Swingline Loan must be in integral multiples of $100,000 or the aggregate principal amount of all outstanding Swingline Loans (or

such other minimum amounts upon which the Swingline Lender and the Borrower may agree) and in connection with any such prepayment, the Borrower must give the Swingline Lender and the Administrative Agent prior written notice thereof no later than 12:00 p.m. Central time on the day prior to the date of such prepayment. The Swingline Loans shall, in addition to this Agreement, be evidenced by the Swingline Note.

(e) Repayment and Participations of Swingline Loans . The Borrower agrees to repay each Swingline Loan within one Business Day of demand therefor by the Swingline Lender and, in any event, within five (5) Business Days after the date such Swingline Loan was made; provided, that the proceeds of a Swingline Loan may not be used to pay a Swingline Loan. Notwithstanding the foregoing, the Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Swingline Loans on the Swingline Maturity Date (or such earlier date as the Swingline Lender and the Borrower may agree in writing). In lieu of demanding repayment of any outstanding Swingline Loan from the Borrower, the Swingline Lender may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), request a borrowing of Revolving Loans that are Base Rate Loans from the Revolving Lenders in an amount equal to the principal balance of such Swingline Loan. The amount limitations contained in the second sentence of Section 2.1.(a) shall not apply to any borrowing of such Revolving Loans made pursuant to this subsection. The Swingline Lender shall give notice to the Administrative Agent of any such borrowing of Revolving Loans not later than 9:00 a.m. Central time at least one Business Day prior to the proposed date of such borrowing. Promptly after receipt of such notice of borrowing of Revolving Loans from the Swingline Lender under the immediately preceding sentence, the Administrative Agent shall notify each Revolving Lender of the proposed borrowing. Not later than 9:00 a.m. Central time on the proposed date of such borrowing, each Revolving Lender will make available to the Administrative Agent at the Principal Office for the account of the Swingline Lender, in immediately available funds, the proceeds of the Revolving Loan to be made by such Lender. The Administrative Agent shall pay the proceeds of such Revolving Loans to the Swingline Lender, which shall apply such proceeds to repay such Swingline Loan. If the Revolving Lenders are prohibited from making Revolving Loans required to be made under this subsection for any reason whatsoever, including without limitation, the occurrence of any of the Defaults or Events of Default described in Sections 10.1.(e) or (f), each Revolving Lender shall purchase from the Swingline Lender, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Revolving Commitment Percentage of such Swingline Loan, by directly purchasing a participation in such Swingline Loan in such amount and paying the proceeds thereof to the Administrative Agent for the account of the Swingline Lender in Dollars and in immediately available funds. A Revolving Lender’s obligation to purchase such a participation in a Swingline Loan shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including without limitation, (i) any claim of setoff, counterclaim, recoupment, defense or other right which such Lender or any other Person may have or claim against the Administrative Agent, the Swingline Lender or any other Person whatsoever, (ii) the existence of a Default or Event of Default (including without limitation, any of the Defaults or Events of Default described in Sections 10.1.(e) or (f)), or the termination of any Revolving Lender’s Revolving Commitment, (iii) the existence (or alleged existence) of an event or condition which has had or could have a Material Adverse Effect, (iv) any breach of any Loan Document by the Administrative Agent, any Lender, the Borrower or any other Loan Party, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact made available to the Swingline Lender by any Revolving Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with accrued interest thereon for each day from the date of demand thereof, at the Federal Funds Rate. If such Lender does not pay such amount forthwith upon the Swingline Lender’s demand therefor, and until such time as such Lender makes the required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of such unpaid participation obligation for all purposes of the Loan Documents (other than those provisions requiring the other Lenders to purchase a participation

therein). Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Revolving Loans, and any other amounts due it hereunder, to the Swingline Lender to fund Swingline Loans in the amount of the participation in Swingline Loans that such Lender failed to purchase pursuant to this Section until such amount has been purchased (as a result of such assignment or otherwise).

Section 2.6. Rates and Payment of Interest on Loans.

(a) Rates . The Borrower promises to pay to the Administrative Agent for the account of each Lender interest on the unpaid principal amount of each Loan made by such Lender for the period from and including the date of the making of such Loan to but excluding the date such Loan shall be paid in full, at the following per annum rates:

(i) during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time), plus the Applicable Margin for Base Rate Loans of such Class;

(ii) during such periods as such Loan is a LIBOR Loan, at LIBOR for such Loan for the Interest Period therefor, plus the Applicable Margin for LIBOR Loans of such Class;

(iii) if such Loan is an Absolute Rate Loan, at the Absolute Rate for such Loan for the Interest Period therefor quoted by the Lender making such Loan in accordance with Section 2.3.; and

(iv) if such Loan is a LIBOR Margin Loan, at LIBOR for such Loan for the Interest Period therefor plus the LIBOR Margin quoted by the Lender making such Loan in accordance with Section 2.3.

Notwithstanding the foregoing, (x) while an Event of Default specified in Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) exists or (y) upon notice from the Administrative Agent to the Borrower given at the written direction of the Requisite Lenders in the case of the existence of any other Event of Default, the Borrower shall pay to the Administrative Agent for the account of the Lenders and the Issuing Banks, as the case may be, interest at the Post-Default Rate on the outstanding principal amount of the Loans made by such Lender, on all Reimbursement Obligations and on any other amount payable by the Borrower hereunder or under the Notes held by such Lender to or for the account of such Lender (including without limitation, accrued but unpaid interest to the extent permitted under Applicable Law).

(b) Payment of Interest . All accrued and unpaid interest on the outstanding principal amount of each Loan shall be payable (i) monthly in arrears on the first day of each month, commencing with the first full calendar month occurring after the Effective Date, and (ii) in the case of any Loan, on any date on which the principal balance of such Loan is due and payable in full (whether at maturity, due to acceleration or otherwise). Interest payable at the Post-Default Rate shall be payable from time to time on demand. All determinations by the Administrative Agent of an interest rate hereunder shall be conclusive and binding on the Lenders and the Borrower for all purposes, absent manifest error.

(c) Borrower Information Used to Determine Applicable Interest Rates . The parties understand that the applicable interest rate for the Obligations and certain fees set forth herein may be determined and/or adjusted from time to time based upon certain financial ratios and/or other information to be provided or certified to the Lenders by the Borrower (the “Borrower Information”). If it is subsequently determined that any such Borrower Information was incorrect (for whatever reason, including without limitation because of a subsequent restatement of earnings by the Borrower) at the time

it was delivered to the Administrative Agent, and if the applicable interest rate or fees calculated for any period were lower than they should have been had the correct information been timely provided, then, such interest rate and such fees for such period shall be automatically recalculated using correct Borrower Information. The Administrative Agent shall promptly notify the Borrower in writing of any additional interest and fees due because of such recalculation, and the Borrower shall pay such additional interest or fees due to the Administrative Agent, for the account of each Lender, within five (5) Business Days of receipt of such written notice. Any recalculation of interest or fees required by this provision shall survive the termination of this Agreement, and this provision shall not in any way limit any of the Administrative Agent’s, any Issuing Bank’s, or any Lender’s other rights under this Agreement.

Section 2.7. Number of Interest Periods.

There may be no more than (a) 6 different Interest Periods for Revolving Loans outstanding at the same time, (b) 6 different Interest Periods for each Class of Term Loans outstanding at the same time and (c) 6 Interest Periods for Bid Rate Loans outstanding at the same time.

Section 2.8. Repayment of Loans.

(a) Revolving Loans and Term Loans . The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, a Class of Loans on the Termination Date for such Class of Loans.

(b) Bid Rate Loans . The Borrower shall repay the entire outstanding principal amount of, and all accrued interest on, each Bid Rate Loan on the last day of the Interest Period of such Bid Rate Loan.

Section 2.9. Prepayments.

(a) Optional . Subject to Section 4.4., and except as otherwise provided in the immediately following subsection (c), the Borrower may prepay any Loan (other than a Bid Rate Loan) at any time without premium or penalty. A Bid Rate Loan may only be prepaid with the prior written consent of the Lender holding such Bid Rate Loan. The Borrower shall give the Administrative Agent at least three (3) Business Days prior written notice of the prepayment of any Loan. Each voluntary prepayment of a Class of Loans shall be in an aggregate minimum amount of $100,000 and integral multiples of $25,000 in excess thereof.

(b) Mandatory .

(i) Revolving Commitment Overadvance . If at any time the aggregate principal amount of all outstanding Revolving Loans, Swingline Loans and Bid Rate Loans, together with the aggregate amount of all Letter of Credit Liabilities, exceeds the aggregate amount of the Revolving Commitments, the Borrower shall promptly, and in any event within 1 Business Day following demand, pay to the Administrative Agent for the account of the Revolving Lenders, the amount of such excess.

(ii) Bid Rate Facility Overadvance . If at any time the aggregate principal amount of all outstanding Bid Rate Loans exceeds one-half of the aggregate amount of all Revolving Commitments at such time, then the Borrower shall immediately upon demand pay to the Administrative Agent for the accounts of the applicable Lenders the amount of such excess.

(iii) Application of Mandatory Prepayments . Amounts paid under the preceding subsection (b)(i) shall be applied to pay all amounts of principal outstanding on the Loans and any Reimbursement Obligations pro rata in accordance with Section 3.2. and if any Letters of Credit are outstanding at such time, the remainder, if any, shall be deposited into the Letter of Credit Collateral Account for application to any Reimbursement Obligations. Amounts paid under the preceding subsection (b)(ii) shall be applied in accordance with Section 3.2.(f). If the Borrower is required to pay any outstanding LIBOR Loans or LIBOR Margin Loans by reason of this Section prior to the end of the applicable Interest Period therefor, the Borrower shall pay all amounts due under Section 4.4.

(c) Prepayment Premium . During the periods set forth below, the Borrower may only prepay the 7-Year Term Loans, in whole or in part, at the prices (expressed as percentages of the principal amount of such Loans to be prepaid) set forth below, plus accrued and unpaid interest, if any, to the date of prepayment:

Period	Percentage
Effective Date to and including January 29, 2016	102.0	%
January 30, 2016 to and including January 29, 2017	101.0	%
All times after January 30, 2017	100.0	%

The Borrower acknowledges and agrees that the amounts payable by it under this Section in connection with the prepayment of the 7-Year Term Loans is a reasonable calculation of the lost profits of the 7-Year Term Loan Lenders in view of the difficulties and impracticality of determining actual damages resulting from the prepayment of such Loans.

Section 2.10. Continuation.

So long as no Default or Event of Default exists, the Borrower may on any Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan by selecting a new Interest Period for such LIBOR Loan. Each Continuation of a LIBOR Loan shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount, and each new Interest Period selected under this Section shall commence on the last day of the immediately preceding Interest Period. Each selection of a new Interest Period shall be made by the Borrower giving to the Administrative Agent a Notice of Continuation not later than 12:00 p.m. Central time on the third Business Day prior to the date of any such Continuation. Such notice by the Borrower of a Continuation shall be by telecopy, electronic mail or other similar form of communication in the form of a Notice of Continuation, specifying (a) the proposed date of such Continuation, (b) the LIBOR Loans, Class and portions thereof subject to such Continuation and (c) the duration of the selected Interest Period, all of which shall be specified in such manner as is necessary to comply with all limitations on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable by and binding on the Borrower once given. Promptly after receipt of a Notice of Continuation, the Administrative Agent shall notify each applicable Lender of the proposed Continuation. If the Borrower shall fail to select in a timely manner a new Interest Period for any LIBOR Loan in accordance with this Section, such Loan will automatically, on the last day of the current Interest Period therefor, continue as a LIBOR Loan with an Interest Period of one month; provided, however that if a Default or Event of Default exists, such Loan will automatically, on the last day of the current Interest Period therefor, Convert into a Base Rate Loan notwithstanding the first sentence of Section 2.11. or the Borrower’s failure to comply with any of the terms of such Section.

Section 2.11. Conversion.

The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to the Administrative Agent by telecopy, electronic mail or other similar form of communication, Convert all or a portion of a Loan of one Type into a Loan of another Type but of the same Class; provided, however, a Base Rate Loan may not be Converted into a LIBOR Loan if a Default or Event of Default exists. Each Conversion of Base Rate Loans of a Class into LIBOR Loans of such Class shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount. Each such Notice of Conversion shall be given not later than 12:00 p.m. Central time 3 Business Days prior to the date of any proposed Conversion. Promptly after receipt of a Notice of Conversion, the Administrative Agent shall notify each applicable Lender of the proposed Conversion. Subject to the restrictions specified above, each Notice of Conversion shall be by telecopy, electronic mail or other similar form of communication in the form of a Notice of Conversion specifying (a) the requested date of such Conversion, (b) the Type and Class of Loan to be Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if such Conversion is into a LIBOR Loan, the requested duration of the Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by and binding on the Borrower once given.

Section 2.12. Notes.

(a) Notes . Except in the case of a Lender that has notified the Administrative Agent in writing that it elects not to receive a Note for a Class of Loans, the Loans of a Class made by each Lender shall, in addition to this Agreement, also be evidenced by a Revolving Note, a 5-Year Term Note or a 7-Year Term Note, as applicable, payable to the order of such Lender in a principal amount equal to, in the case of a Revolving Lender, the amount of its Revolving Commitment on the Effective Date, and in the case of a Term Loan Lender, the initial principal amount of its 5-Year Term Loan or 7-Year Term Loan, as applicable, and, in each case, otherwise duly completed. Except in the case of a Revolving Lender that has notified the Administrative Agent in writing that it elects not to receive a Bid Rate Note, the Bid Rate Loans made by a Revolving Lender to the Borrower shall, in addition to this Agreement, also be evidenced by a Bid Rate Note payable to the order of such Revolving Lender. The Swingline Loans made by the Swingline Lender to the Borrower shall, in addition to this Agreement, also be evidenced by a Swingline Note payable to the order of the Swingline Lender.

(b) Records . The date, amount, interest rate, Type, Class and duration of Interest Periods (if applicable) of each Loan made by each Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by such Lender on its books and such entries shall be binding on the Borrower absent manifest error; provided, however, that (i) the failure of a Lender to make any such record shall not affect the obligations of the Borrower under any of the Loan Documents and (ii) if there is a discrepancy between such records of a Lender and the statements of accounts maintained by the Administrative Agent pursuant to Section 3.8., in the absence of manifest error, the statements of account maintained by the Administrative Agent pursuant to Section 3.8. shall be controlling.

(c) Lost, Stolen, Destroyed or Mutilated Notes . Upon receipt by the Borrower of (i) written notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or mutilated, and (ii)(A) in the case of loss, theft or destruction, an unsecured agreement of indemnity from such Lender in form reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon surrender and cancellation of such Note, the Borrower shall at its own expense execute and deliver to such Lender a new Note dated the date of such lost, stolen, destroyed or mutilated Note.

Section 2.13. Voluntary Reductions of Revolving Commitments.

The Borrower shall have the right to terminate or reduce the aggregate unused amount of the Revolving Commitments (for which purpose use of the Revolving Commitments shall be deemed to include the aggregate amount of all Letter of Credit Liabilities and the aggregate principal amount of all outstanding Bid Rate Loans and Swingline Loans) at any time and from time to time without penalty or premium upon not less than five (5) Business Days prior written notice to the Administrative Agent of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction (which in the case of any partial reduction of the Revolving Commitments shall not be less than $10,000,000 and integral multiples of $5,000,000 in excess of that amount in the aggregate) and shall be irrevocable once given and effective only upon receipt by the Administrative Agent (“Commitment Reduction Notice”). Promptly after receipt of a Commitment Reduction Notice the Administrative Agent shall notify each Revolving Lender of the proposed termination or reduction. The Revolving Commitments, once reduced or terminated pursuant to this Section, may not be increased or reinstated. The Borrower shall pay all interest on the Revolving Loans, and Fees under Section 3.5.(b) with respect to the amount of the Revolving Commitment being reduced, accrued to the date of such reduction or termination of the Revolving Commitments to the Administrative Agent for the account of the Lenders, including but not limited to any applicable compensation due to each Revolving Lender in accordance with Section 4.4.

Section 2.14. Extension of Revolving Termination Date.

The Borrower shall have the right, exercisable two times, to extend the current Revolving Termination Date by six months in each case. The Borrower may exercise such right only by executing and delivering to the Administrative Agent at least 30 days but not more than 90 days prior to the current Revolving Termination Date, a written request for such extension (an “Extension Request”). The Administrative Agent shall notify the Revolving Lenders if it receives an Extension Request promptly upon receipt thereof. Subject to satisfaction of the following conditions, the Revolving Termination Date shall be extended for six months from the current Revolving Termination Date effective upon receipt by the Administrative Agent of the applicable Extension Request and payment of the fee referred to in the following clause (ii): (i) immediately prior to such extension and immediately after giving effect thereto, (x) no Default or Event of Default shall exist and (y) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such extension with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents and (ii) the Borrower shall have paid the Fees payable under Section 3.5.(d). At any time prior to the effectiveness of any such extension, upon the Administrative Agent’s request, the Borrower shall deliver to the Administrative Agent a certificate from the chief executive officer or chief financial officer certifying the matters referred to in the immediately preceding clauses (i)(x) and (i)(y).

Section 2.15. Expiration Date of Letters of Credit Past Revolving Commitment Termination.

If on the date the Revolving Commitments are terminated or reduced to zero (whether voluntarily, by reason of the occurrence of an Event of Default or otherwise) there are any Letters of Credit outstanding hereunder and the aggregate Stated Amount of such Letters of Credit exceeds the

balance of available funds on deposit in the Letter of Credit Collateral Account, then the Borrower shall, on such date, pay to the Administrative Agent, for its benefit and the benefit of the Revolving Lenders and the Issuing Banks, for deposit into the Letter of Credit Collateral Account, an amount of money equal to the amount of such excess.

Section 2.16. Amount Limitations.

Notwithstanding any other term of this Agreement or any other Loan Document, no Revolving Lender shall be required to make a Loan, no Revolving Lender shall make any Bid Rate Loan, an Issuing Bank shall not be required to issue a Letter of Credit and no reduction of the Revolving Commitments pursuant to Section 2.13. shall take effect, if immediately after the making of such Loan, the issuance of such Letter of Credit or such reduction in the Revolving Commitments:

(a) the aggregate principal amount of all outstanding Revolving Loans, Bid Rate Loans and Swingline Loans, together with the aggregate amount of all Letter of Credit Liabilities, would exceed the aggregate amount of the Revolving Commitments at such time; or

(b) the aggregate principal amount of all outstanding Bid Rate Loans would exceed 50.0% of the aggregate amount of the Revolving Commitments at such time.

Section 2.17. Increase in Revolving Commitments and Term Loans.

The Borrower shall have the right at any time and from time to time (a) during t he period beginning on the Effective Date to but excluding the Revolving Termination Date to request increases in the aggregate amount of the Revolving Commitments, (b) during the period from the Effective Date to but excluding the Termination Date for the 5-Year Term Loans, to request the making of additional 5-Year Term Loans (the “Additional 5-Year Term Loans”), and (c) during the period from the Effective Date to by excluding the Termination Date for the 7-Year Term Loans to request the making of additional 7-Year Term Loans (the “Additional 7-Year Term Loans”; together with the Additional 5-Year Term Loans, the “Additional Term Loans”), in each case, by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided , however , that after giving effect to any such increases of the Revolving Commitments and the making of Additional Term Loans, the aggregate amount of the Revolving Commitments and the aggregate outstanding principal balance of the Term Loans shall not exceed $2,300,000,000 (less the aggregate amount of reductions of Commitments effected pursuant to Section 2.13.). Each such increase in the Revolving Commitments or borrowing of Additional Term Loans must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Administrative Agent, in consultation with the Borrower, shall manage all aspects of the syndication of such increase in the Revolving Commitments and/or the making of any Additional Term Loans, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to any such increase in the Revolving Commitments or making of Additional Term Loans and the allocations of any increase in the Revolving Commitments or making of Additional Term Loans among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment, to provide a new Revolving Commitment, or to make an Additional Term Loan, and any new Lender becoming a party to this Agreement in connection with any such requested increase of the Revolving Commitments or making of Additional Term Loans must be an Eligible Assignee. If a new Revolving Lender becomes a party to this Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (or in the case of an existing Revolving Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Revolving Lenders its Revolving Commitment Percentage (determined with respect to the Revolving Lenders’ respective Revolving

Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 4.4. as a result of the prepayment of any such Revolving Loans. Effecting any increase of the Revolving Commitments or making of Additional Term Loans under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase of the Revolving Commitments or making of Additional Term Loans, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of any such increase in the Revolving Commitments or making of Additional Term Loans except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted hereunder, and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate and other necessary action taken by the Borrower to authorize such increase of the Revolving Commitments or Additional Term Loans and (B) all corporate and other necessary action taken by each Guarantor authorizing the guaranty of such increase of the Revolving Commitments or Additional Term Loans; (ii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent, and (iii)(A) new Revolving Notes executed by the Borrower, payable to any new Revolving Lenders and replacement Revolving Notes executed by the Borrower, payable to any existing Revolving Lenders increasing their Revolving Commitments, in the amount of such Revolving Lender’s Revolving Commitment at the time of the effectiveness of the applicable increase in the aggregate amount of the Revolving Commitments and/or (B) a new Term Note of the applicable Class of Term Loans made by such Term Loan Lender executed by the Borrower, payable to such new Term Loan Lenders, and replacement Term Notes of the applicable Class executed by the Borrower payable to such existing Term Loan Lenders making such Additional Term Loans of such Class, in each case, in the aggregate outstanding principal amount of such Term Loan Lender’s Term Loan of the applicable Class at the time of the making of such Additional Term Loans ( excluding, in the case of the preceding clauses (A) and (B), any Lender that has requested that it not receive Notes). In connection with any increase in the aggregate amount of the Revolving Commitments or the making of the Additional Term Loans pursuant to this Section, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.

Section 2.18. Funds Transfer Disbursements.

The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any Loan made by the Lenders or any of their Affiliates pursuant to the Loan Documents as requested by an

authorized representative of the Borrower to any of the accounts designated in the Disbursement Instruction Agreement.

ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS

Section 3.1. Payments.

(a) Payments by Borrower . Except to the extent otherwise provided herein, all payments of principal, interest, Fees and other amounts to be made by the Borrower under this Agreement, the Notes or any other Loan Document shall be made in Dollars, in immediately available funds, without setoff, deduction or counterclaim (excluding Taxes required to be withheld pursuant to Section 3.10.), to the Administrative Agent at the Principal Office, not later than 1:00 p.m. Central time on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Subject to Section 10.5., the Borrower shall, at the time of making each payment under this Agreement or any other Loan Document, specify to the Administrative Agent the amounts payable by the Borrower hereunder to which such payment is to be applied. Each payment received by the Administrative Agent for the account of a Lender under this Agreement or any Note shall be paid to such Lender by wire transfer of immediately available funds in accordance with the wiring instructions provided by such Lender to the Administrative Agent from time to time, for the account of such Lender at the applicable Lending Office of such Lender. Each payment received by the Administrative Agent for the account of an Issuing Bank under this Agreement shall be paid to such Issuing Bank by wire transfer of immediately available funds in accordance with the wiring instructions provided by such Issuing Bank to the Administrative Agent from time to time, for the account of such Issuing Bank. In the event the Administrative Agent fails to pay such amounts to such Lender or such Issuing Bank, as the case may be, (i) by 4:00 p.m. Central time on the Business Day such funds are received by the Administrative Agent, if such amounts are received by 11:00 a.m. Central time on such date or (ii) by 4:00 p.m. Central time on the Business Day following the date such funds are received by the Administrative Agent, if such amounts are received after 11:00 a.m. Central time on any Business Day, the Administrative Agent shall pay interest on such amount until paid at a rate per annum equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be extended to the immediately following Business Day and interest shall continue to accrue at the rate, if any, applicable to such payment for the period of such extension.

(b) Presumptions Regarding Payments by Borrower . Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of any of the Lenders or an Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may (but shall not be obligated to), in reliance upon such assumption, distribute to such Lenders or such Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of such Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent on demand that amount so distributed to such Lender or such Issuing Bank, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

Section 3.2. Pro Rata Treatment.

Except to the extent otherwise provided herein: (a) each borrowing from the Revolving Lenders under Sections 2.1.(a), 2.4.(e) and 2.5.(e) shall be made from the Revolving Lenders, each payment of the

fees under Sections 3.5.(b), the first sentence of 3.5.(c), and 3.5.(d) shall be made for the account of the Revolving Lenders, and each termination or reduction of the amount of the Revolving Commitments under Section 2.13. shall be applied to the respective Revolving Commitments of the Revolving Lenders, pro rata according to the amounts of their respective Revolving Commitments; (b) the making of Term Loans of a Class under Section 2.2.(a) shall be made from the Term Loan Lenders of such Class, pro rata according to the amounts of their respective Term Loan Commitments of such Class; (c) each payment or prepayment of principal of a Class of Loans shall be made for the account of the Lenders of such Class pro rata in accordance with the respective unpaid principal amounts of the Loans of such Class held by them, provided that, subject to Section 3.9., if immediately prior to giving effect to any such payment in respect of any Revolving Loans the outstanding principal amount of the Revolving Loans shall not be held by the Revolving Lenders pro rata in accordance with their respective Revolving Commitments in effect at the time such Revolving Loans were made, then such payment shall be applied to the Revolving Loans in such manner as shall result, as nearly as is practicable, in the outstanding principal amount of the Revolving Loans being held by the Revolving Lenders pro rata in accordance with such respective Revolving Commitments; (d) each payment of interest on a Class of Loans shall be made for the account of the Lenders of such Class pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders of such Class; (e) the Conversion and Continuation of Loans of a particular Class and Type (other than Conversions provided for by Sections 4.1.(c) and 4.5.) shall be made pro rata among the Lenders of such Class according to the amounts of their respective Loans of such Class, and the then current Interest Period for each Lender’s portion of each such Loan of such Type shall be coterminous; (f) each prepayment of principal of Bid Rate Loans pursuant to Section 2.9.(b)(ii) shall be made for account of the Lenders then owed Bid Rate Loans pro rata in accordance with the respective unpaid principal amounts of the Bid Rate Loans then owing to each such Lender; (g) the Revolving Lenders’ participation in, and payment obligations in respect of, Swingline Loans under Section 2.5., shall be in accordance with their respective Revolving Commitment Percentages; and (h) the Revolving Lenders’ participation in, and payment obligations in respect of, Letters of Credit under Section 2.4., shall be in accordance with their respective Revolving Commitment Percentages. All payments of principal, interest, fees and other amounts in respect of the Swingline Loans shall be for the account of the Swingline Lender only (except to the extent any Revolving Lender shall have acquired a participating interest in any such Swingline Loan pursuant to Section 2.5.(e), in which case such payments shall be pro rata in accordance with such participating interests).

Section 3.3. Sharing of Payments, Etc.

If a Lender shall obtain payment of any principal of, or interest on, any Loan of a Class under this Agreement or shall obtain payment on any other Obligation owing by the Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien, counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or other payments made by or on behalf of the Borrower or any other Loan Party to a Lender (other than any payment in respect of Specified Derivatives Obligations) not in accordance with the terms of this Agreement and such payment should be distributed to the Lenders of the same Class in accordance with Section 3.2. or Section 10.5., as applicable, such Lender shall promptly purchase from the other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by the other Lenders or other Obligations owed to such other Lenders in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such payment (net of any reasonable expenses which may actually be incurred by such Lender in obtaining or preserving such benefit) in accordance with the requirements of Section 3.2. or Section 10.5., as applicable; provided, however, that, with respect to any such voluntary prepayment directly to such Lender that is identified as payment for a certain Class of Loans, so long as no Event of Default exists, such Lender shall promptly purchase only from the other Lenders of the same Class participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class made by the other Lenders of such Class in such

amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders of such Class shall share the benefit of such payment (net of any reasonable expenses which may actually be incurred by such Lender in obtaining or preserving such benefit) in accordance with the requirements of Section 3.2. To such end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored. The Borrower agrees that any Lender of a Class so purchasing a participation (or direct interest) in the Loans or other Obligations owed to the other Lenders of such Class may exercise all rights of set-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans of such Class in the amount of such participation. Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower.

Section 3.4. Several Obligations.

No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform any other obligation to be made or performed by such other Lender hereunder, and the failure of any Lender to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform any other obligation to be made or performed by such other Lender.

Section 3.5. Fees.

(a) Reserved .

(b) Revolving Facility Fees . During the period from the Effective Date to but excluding the Revolving Termination Date, the Borrower agrees to pay to the Administrative Agent for the account of the Revolving Lenders a facility fee equal to the daily aggregate amount of the Revolving Commitments (whether or not utilized) times a rate per annum equal to the Applicable Facility Fee. Such fee shall be payable quarterly in arrears on the first day of each January, April, July and October during the term of this Agreement and on the Revolving Termination Date or any earlier date of termination of the Revolving Commitments or reduction of the Revolving Commitments to zero. The Borrower acknowledges that the fee payable hereunder is a bona fide commitment fee and is intended as reasonable compensation to the Revolving Lenders for committing to make funds available to the Borrower as described herein and for no other purposes.

(c) Letter of Credit Fees . The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a letter of credit fee at a rate per annum equal to the Applicable Margin for Revolving Loans that are LIBOR Loans times the daily average Stated Amount of each Letter of Credit for the period from and including the date of issuance of such Letter of Credit (x) to and including the date such Letter of Credit expires or is cancelled or terminated or (y) to but excluding the date such Letter of Credit is drawn in full; provided, however, notwithstanding anything to the contrary contained herein, while the Obligations are accruing interest at the Post-Default Rate, such letter of credit fees shall accrue at the Post-Default Rate. In addition to such fees, the Borrower shall pay to an Issuing Bank solely for its own account, a fronting fee in respect of each Letter of Credit issued by such Issuing Bank equal to 0.125% of the initial Stated Amount of such Letter of Credit; provided, however, in no event shall the aggregate amount of such fee in respect of any Letter of Credit be less than $1,000. The fees provided for in this subsection shall be nonrefundable and payable, in the case of the fee provided for in the first sentence, in arrears (i) quarterly on the first day of January, April, July and October, (ii) on the Revolving Termination Date, (iii) on the date the Revolving Commitments are terminated or reduced to zero and (iv) thereafter from time to time on demand of the Administrative Agent and in the case of the fee

provided for in the second sentence, at the time of issuance of such Letter of Credit. The Borrower shall pay directly to an Issuing Bank from time to time on demand all commissions, charges, costs and expenses in the amounts customarily charged or incurred by such Issuing Bank from time to time in like circumstances with respect to the issuance, amendment, renewal or extension of any Letter of Credit or any other transaction relating thereto.

(d) Extension Fee . If the Borrower exercises its right to extend the Revolving Termination Date in accordance with Section 2.14., the Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a fee equal to three-fortieths of one percent (0.075%) of the amount of such Revolving Lender’s Revolving Commitment (whether or not utilized) payable in connection with each such extension. Any such fee shall be due and payable in full on the date the Administrative Agent receives an Extension Request pursuant to such Section.

(e) Administrative and Other Fees . The Borrower agrees to pay the administrative and other fees of the Administrative Agent and the Lead Arrangers as provided in the respective Fee Letters and as may be otherwise agreed to in writing from time to time by the Borrower and the Administrative Agent.

Section 3.6. Computations.

Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or any other Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual number of days elapsed.

Section 3.7. Usury.

In no event shall the amount of interest due or payable on the Loans or other Obligations exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by the Borrower or any other Loan Party or received by any Lender, then such excess sum shall be credited as a payment of principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have such excess sum returned to it forthwith. It is the express intent of the parties hereto that the Borrower not pay and the Lenders not receive, directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully paid by the Borrower under Applicable Law. The parties hereto hereby agree and stipulate that the only charge imposed upon the Borrower for the use of money in connection with this Agreement is and shall be the interest specifically described in Section 2.6.(a)(i) through (iv) and, with respect to Swingline Loans, in Section 2.5.(c). Notwithstanding the foregoing, the parties hereto further agree and stipulate that all agency fees, syndication fees, facility fees, closing fees, letter of credit fees, underwriting fees, prepayment premiums, default charges, late charges, funding or “breakage” charges, increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid by the Administrative Agent or any Lender to third parties or for damages incurred by the Administrative Agent or any Lender, in each case, in connection with the transactions contemplated by this Agreement and the other Loan Documents, are charges made to compensate the Administrative Agent or any such Lender for underwriting or administrative services and costs or losses performed or incurred, and to be performed or incurred, by the Administrative Agent and the Lenders in connection with this Agreement and shall under no circumstances be deemed to be charges for the use of money. All charges other than charges for the use of money shall be fully earned and nonrefundable when due.

Section 3.8. Statements of Account.

The Administrative Agent will account to the Borrower monthly with a statement of Loans, accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan Documents, and such account rendered by the Administrative Agent shall be deemed conclusive upon the

Borrower absent manifest error. The failure of the Administrative Agent to deliver such a statement of accounts shall not relieve or discharge the Borrower from any of its obligations hereunder.

Section 3.9. Defaulting Lenders.

Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:

(a) Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of Requisite Lenders and Requisite Class Lenders and in Section 12.6.

(b) Defaulting Lender Waterfall . Any payment of principal, interest, Fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article X. or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.3. shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , in the case of a Defaulting Lender that is a Revolving Lender, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Banks or the Swingline Lender hereunder; third , to Cash Collateralize each Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with subsection (e) below; fourth , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , in the case of a Defaulting Lender that is a Revolving Lender, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize each Issuing Bank’s future Fronting Exposures with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with subsection (e) below; sixth , to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans of a Class or amounts owing by such Defaulting Lender under Section 2.4.(j) in respect of Letters of Credit (such amounts “L/C Disbursements”), in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Article V. were satisfied or waived, such payment shall be applied solely to pay the Loans of such Class of, and L/C Disbursements owed to, all Non-Defaulting Lenders of the applicable Class on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time as all Loans of such Class and, as applicable, funded and unfunded participations in Letter of Credit Liabilities and Swingline Loans are held by the Revolving Lenders pro rata in accordance with their respective Revolving Commitment Percentages (determined without giving effect to the immediately following subsection (d)) and all Term Loans of each Class are held by the Term Loan Lenders of such Class pro rata as if there had been no Defaulting Lenders of such Class. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash

Collateral pursuant to this subsection shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(i) No Defaulting Lender shall be entitled to receive any Fee payable under Section 3.5.(b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(ii) Each Defaulting Lender that is a Revolving Lender shall be entitled to receive the Fee payable under the first sentence of Section 3.5.(c) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to the immediately following subsection (e).

(iii) With respect to any Fee not required to be paid to any Defaulting Lender pursuant to the immediately preceding clause (ii), the Borrower shall (x) pay to each Non-Defaulting Lender that is a Revolving Lender that portion of any such Fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Liabilities or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to the immediately following subsection (d), (y) pay to each Issuing Bank and the Swingline Lender, as applicable, the amount of any such Fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such Fee.

(d) Reallocation of Participations to Reduce Fronting Exposure . In the case of a Defaulting Lender that is a Revolving Lender, all or any part of such Defaulting Lender’s participation in Letter of Credit Liabilities and Swingline Loans shall be reallocated among the Non-Defaulting Lenders that are Revolving Lenders in accordance with their respective Revolving Commitment Percentages (determined without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any such Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 12.24. no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Revolving Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(e) Cash Collateral, Repayment of Swingline Loans .

(i) If the reallocation described in the immediately preceding subsection (d) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize each Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in this subsection.

(ii) At any time that there shall exist a Defaulting Lender that is a Revolving Lender, within 1 Business Day following the written request of the Administrative Agent or an Issuing Bank (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize such Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after

giving effect to the immediately preceding subsection (d) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the aggregate Fronting Exposure of such Issuing Bank with respect to Letters of Credit issued by such Issuing Bank and outstanding at such time.

(iii) The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grant to the Administrative Agent, for the benefit of the Issuing Banks, and agree to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letter of Credit Liabilities, to be applied pursuant to the immediately following clause (iv). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the aggregate Fronting Exposure of the Issuing Banks with respect to Letters of Credit issued and outstanding at such time, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

(iv) Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letter of Credit Liabilities (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(v) Cash Collateral (or the appropriate portion thereof) provided to reduce the Issuing Banks’ Fronting Exposures shall no longer be required to be held as Cash Collateral pursuant to this subsection following (x) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Revolving Lender), or (y) the determination by the Administrative Agent and the Issuing Banks that there exists excess Cash Collateral; provided that, subject to the immediately preceding subsection (b), the Person providing Cash Collateral and the Issuing Banks may (but shall not be obligated to) agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.

(f) Defaulting Lender Cure . If the Borrower and the Administrative Agent (and solely in the case of a Defaulting Lender that is a Revolving Lender, the Swingline Lender and the Issuing Banks) agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause, as applicable, (i) the Revolving Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Revolving Lenders in accordance with their respective Revolving Commitment Percentages (determined without giving effect to the immediately preceding subsection (d)) and (ii) the Term Loans of each Class to be held by the Term Loan Lenders of such Class pro rata as if there had been no Defaulting Lenders of such Class, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to Fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender;

and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to a Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(g) New Swingline Loans/Letters of Credit . So long as any Revolving Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

(h) Purchase of Defaulting Lender’s Revolving Commitment . During any period that a Revolving Lender is a Defaulting Lender, the Borrower may, by the Borrower giving written notice thereof to the Administrative Agent, such Defaulting Lender and the other Lenders, demand that such Defaulting Lender assign its Revolving Commitment and Loans to an Eligible Assignee subject to and in accordance with the provisions of Section 12.5.(b). No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. In addition, any Lender who is not a Defaulting Lender may, but shall not be obligated, in its sole discretion, to acquire the face amount of all or a portion of such Defaulting Lender’s Revolving Commitment and Loans via an assignment subject to and in accordance with the provisions of Section 12.5.(b). In connection with any such assignment, such Defaulting Lender shall promptly execute all documents reasonably requested to effect such assignment, including an appropriate Assignment and Assumption and, notwithstanding Section 12.5.(b), shall pay to the Administrative Agent an assignment fee in the amount of $7,500. The exercise by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or expense to the Administrative Agent or any of the Lenders.

(i) Termination of Defaulting Revolving Lender’s Revolving Commitment . During any period that a Revolving Lender is a Defaulting Lender, the Borrower may terminate in full the Revolving Commitment of such Defaulting Lender by giving notice to such Defaulting Lender and the Administrative Agent (such termination, a “Defaulting Lender Termination”) so long as on the effective date of such Defaulting Lender Termination and after giving effect thereto and to any repayment of Revolving Loans in connection therewith: (i) no Event of Default exists (unless the Requisite Lenders otherwise consent to such Defaulting Lender Termination), (ii) no Revolving Loans shall be outstanding, and (iii) all obligations of such Defaulting Lender in respect of any existing Letter of Credit Obligations and Swingline Loans have been reallocated in accordance with the immediately preceding subsection (d). Each such notice shall specify the effective date of such Defaulting Lender Termination (the “Defaulting Lender Termination Date”), which shall be not less than 5 Business Days (or such shorter period as agreed to by the Administrative Agent and such Defaulting Lender after the date on which such notice is delivered to such Defaulting Lender and the Administrative Agent). On each such Defaulting Lender Termination Date, (i) the Revolving Commitment of such Defaulting Lender shall be reduced to zero, (ii) such Defaulting Lender shall cease to be a “Revolving Lender” hereunder (provided that any such Defaulting Lender shall continue to be entitled to the indemnification provisions contained herein, but only with respect to matters arising prior to the applicable Defaulting Lender Termination Date) and (iii) the Commitments of all other Lenders shall remain unchanged. The Borrower’s exercise of its rights under this subsection shall not constitute a waiver or release of any claim any party to this Agreement may have against a Defaulting Lender.

Section 3.10. Taxes.

(a) Issuing Bank . For purposes of this Section, the term “Lender” includes each Issuing Bank and the Administrative Agent, and the term “Applicable Law” includes FATCA.

(b) Payments Free of Taxes . Any and all payments by or on account of any obligation of the Borrower or any other Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower or other applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(c) Payment of Other Taxes by the Borrower . The Borrower and the other Loan Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(d) Indemnification by the Borrower . Without duplication of any obligation under the immediately preceding subsection (b), the Borrower and the other Loan Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e) Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower or another Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and the other Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.5. relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this subsection. The provisions of this subsection shall continue to inure to the benefit of an Administrative Agent following its resignation or removal as Administrative Agent.

(f) Evidence of Payments . As soon as practicable after any payment of Taxes by the Borrower or any other Loan Party to a Governmental Authority pursuant to this Section, the Borrower or such other Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(g) Status of Lenders .

(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in the immediately following clauses (ii)(A), (ii)(B) and (ii)(D)) shall not be required if in the applicable Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(II) an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8ECI;

(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit R-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or

(IV) to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit R-2 or Exhibit R-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit R-4 on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(h) Treatment of Certain Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i) Survival . Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

ARTICLE IV. YIELD PROTECTION, ETC.

Section 4.1. Additional Costs; Capital Adequacy.

(a) Capital Adequacy . If any Lender determines that any Regulatory Change affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity ratios or requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Regulatory Change (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered; provided, however, that a Lender shall not be entitled to submit a claim for compensation based upon a Regulatory Change described in the last sentence of the definition of the term “Regulatory Change” unless such Lender shall have determined that the making of such claim is consistent with its general practices under similar circumstances in respect of similarly situated borrowers with credit agreements entitling it to make such claims (it being agreed that a Lender shall not be required to disclose any confidential or proprietary information in connection with such determination or the making of such claim).

(b) Additional Costs. In addition to, and not in limitation of the immediately preceding subsection (a), the Borrower shall promptly pay to the Administrative Agent for the account of a Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender for any costs incurred by such Lender that it determines are attributable to its making or maintaining of any LIBOR Loans or LIBOR Margin Loans or its obligation to make any LIBOR Loans

hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of the other Loan Documents in respect of any of such LIBOR Loans or LIBOR Margin Loans or such obligation or the maintenance by such Lender of capital in respect of its LIBOR Loans or LIBOR Margin Loans or its Commitments (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any Regulatory Change that:

(i) changes the basis of taxation of any amounts payable to such Lender under this Agreement or any of the other Loan Documents in respect of any of such LIBOR Loans or LIBOR Margin Loans or its Commitments (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and Connection Income Taxes);

(ii) imposes or modifies any reserve, special deposit, compulsory loan, insurance charge or similar requirements (other than Regulation D of the Board of Governors of the Federal Reserve System or other similar reserve requirement applicable to any other category of liabilities or category of extensions of credit or other assets by reference to which the interest rate on LIBOR Loans or LIBOR Margin Loans is determined to the extent utilized when determining LIBOR for such Loans) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, or other credit extended by, or any other acquisition of funds by such Lender (or its parent corporation), or any commitment of such Lender (including, without limitation, the Commitments of such Lender hereunder); or

(iii) imposes on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender.

(c) Lender’s Suspension of LIBOR Loans and LIBOR Margin Loans. Without limiting the effect of the provisions of the immediately preceding subsections (a) and (b), if by reason of any Regulatory Change, any Lender either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount of a category of deposits or other liabilities of such Lender that includes deposits by reference to which the interest rate on LIBOR Loans or LIBOR Margin Loans is determined as provided in this Agreement or a category of extensions of credit or other assets of such Lender that includes LIBOR Loans or LIBOR Margin Loans or (ii) becomes subject to restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Lender so elects by notice to the Borrower (with a copy to the Administrative Agent), the obligation of such Lender to make or Continue, or to Convert Base Rate Loans into, LIBOR Loans and/or the obligation of a Revolving Lender that has outstanding a Bid Rate Quote to make LIBOR Margin Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which case the provisions of Section 4.5. shall apply).

(d) Additional Costs in Respect of Letters of Credit . Without limiting the obligations of the Borrower under the preceding subsections of this Section (but without duplication), if as a result of any Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter issued by any Governmental Authority there shall be imposed, modified or deemed applicable any Tax (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and Connection Income Taxes), reserve, special deposit, capital adequacy or similar requirement against or with respect to or measured by reference to Letters of Credit and the result shall be to increase the cost to an Issuing Bank of issuing (or any Lender of purchasing participations in) or maintaining its obligation hereunder to issue (or purchase participations in) any Letter of Credit or reduce any amount receivable by an Issuing Bank or any Lender hereunder in respect of any Letter of Credit, then the Borrower shall pay to such Issuing Bank or, in the case of such Lender, to the Administrative Agent for the account of such Lender, from time to time as specified by such Issuing Bank or such Lender, such additional amounts as shall be sufficient to compensate such Issuing Bank or such Lender for such increased costs or reductions in amount.

(e) Notification and Determination of Additional Costs . Each of the Administrative Agent, each Issuing Bank and each Lender, as the case may be, agrees to notify the Borrower (and in the case of an Issuing Bank and or a Lender, to notify the Administrative Agent) of any event occurring after the Agreement Date entitling the Administrative Agent, such Issuing Bank or such Lender to compensation under any of the preceding subsections of this Section as promptly as practicable; provided, however, that the failure of the Administrative Agent, any Issuing Bank or any Lender to give such notice shall not release the Borrower from any of its obligations hereunder; provided, further, that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof). The Administrative Agent, each Issuing Bank and each Lender, as the case may be, agrees to furnish to the Borrower (and in the case of an Issuing Bank or a Lender to the Administrative Agent as well) a certificate setting forth the basis and amount of each request for compensation under this Section. Determinations by the Administrative Agent, such Issuing Bank or such Lender, as the case may be, of the effect of any Regulatory Change shall be conclusive and binding for all purposes, absent manifest error. The Borrower shall pay the Administrative Agent, any such Issuing Bank and or any such Lender, as the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof.

Section 4.2. Suspension of LIBOR Loans and LIBOR Margin Loans.

Anything herein to the contrary notwithstanding, if, on or prior to the determination of LIBOR for any Interest Period:

(a) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that reasonable and adequate means do not exist for ascertaining LIBOR for such Interest Period;

(b) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that quotations of interest rates for the relevant deposits referred to in the definition of LIBOR are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for LIBOR Loans as provided herein;

(c) the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that the relevant rates of interest referred to in the definition of LIBOR upon the basis of which the rate of interest for LIBOR Loans for such Interest Period is to be determined are not likely to adequately cover the cost to any Lender of making or maintaining LIBOR Loans for such Interest Period; or

(d) any Revolving Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan reasonably determines (which determination shall be conclusive absent manifest error) that LIBOR will not adequately and fairly reflect the cost to such Revolving Lender of making or maintaining such LIBOR Margin Loan;

then the Administrative Agent shall give the Borrower and each Lender prompt notice thereof and, so long as such condition remains in effect, (i) the Lenders shall be under no obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of each current Interest Period for each outstanding LIBOR Loan, either

prepay such Loan or Convert such Loan into a Base Rate Loan and (ii) in the case of clause (d) above, no Revolving Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan shall be under any obligation to make such Loan.

Section 4.3. Illegality.

Notwithstanding any other provision of this Agreement, (a) if any Lender shall determine (which determination shall be conclusive and binding) that it is unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans hereunder and/or (b) if any Lender that has an outstanding Bid Rate Quote shall determine (which determination shall be conclusive and binding) that it is unlawful for such Lender to honor its obligation to make or maintain LIBOR Margin Loans hereunder, then such Lender shall promptly notify the Borrower thereof (with a copy of such notice to the Administrative Agent) and such Lender’s obligation to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be suspended and/or such Lender’s obligation to make LIBOR Margin Loans shall be suspended, in each case, until such time as such Lender may again make and maintain LIBOR Loans or LIBOR Margin Loans (in which case the provisions of Section 4.5. shall be applicable).

Section 4.4. Compensation.

The Borrower shall pay to the Administrative Agent for the account of each Lender, upon the request of the Administrative Agent, such amount or amounts as the Administrative Agent shall determine in its sole discretion shall be sufficient to compensate such Lender for any loss, cost or expense attributable to:

(a) any payment or prepayment (whether mandatory or optional) of a LIBOR Loan or a Bid Rate Loan, or Conversion of a LIBOR Loan, made by such Lender for any reason (including, without limitation, acceleration) on a date other than the last day of the Interest Period for such Loan; or

(b) any failure by the Borrower for any reason (including, without limitation, the failure of any of the applicable conditions precedent specified in Section 5.2. to be satisfied but excluding any failure resulting from the operation of Section 4.2.) to borrow a LIBOR Loan or a Bid Rate Loan from such Lender on the date for such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date of such Conversion or Continuation.

Not in limitation of the foregoing, such compensation shall include, without limitation, (i) in the case of a LIBOR Loan, an amount equal to the then present value of (A) the amount of interest that would have accrued on such LIBOR Loan for the remainder of the Interest Period at the rate applicable to such LIBOR Loan, less (B) the amount of interest that would accrue on the same LIBOR Loan for the same period if LIBOR were set on the date on which such LIBOR Loan was repaid, prepaid or Converted or the date on which the Borrower failed to borrow, Convert or Continue such LIBOR Loan, as applicable, calculating present value by using as a discount rate LIBOR quoted on such date and (ii) in the case of a Bid Rate Loan, the sum of such losses and expenses as the Lender or Designated Lender who made such Bid Rate Loan may reasonably incur by reason of such prepayment, including without limitation any losses or expenses incurred in obtaining, liquidating or employing deposits from third parties. Upon the Borrower’s request, the Administrative Agent shall provide the Borrower with a statement setting forth the basis for requesting such compensation and the method for determining the amount thereof. Any such statement shall be conclusive absent manifest error.

Section 4.5. Treatment of Affected Loans.

(a) If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(c), Section 4.2. or Section 4.3. then such Lender’s LIBOR Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion required by Section 4.1.(c), Section 4.2., or Section 4.3. on such earlier date as such Lender or the Administrative Agent, as applicable, may specify to the Borrower (with a copy to the Administrative Agent, as applicable)) and, unless and until such Lender or the Administrative Agent, as applicable, gives notice as provided below that the circumstances specified in Section 4.1., Section 4.2. or Section 4.3. that gave rise to such Conversion no longer exist:

(i) to the extent that such Lender’s LIBOR Loans have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s LIBOR Loans shall be applied instead to its Base Rate Loans; and

(ii) all Loans that would otherwise be made or Continued by such Lender as LIBOR Loans shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be Converted into LIBOR Loans shall remain as Base Rate Loans.

If such Lender or the Administrative Agent, as applicable, gives notice to the Borrower (with a copy to the Administrative Agent, as applicable) that the circumstances specified in Section 4.1.(c), 4.2. or 4.3. that gave rise to the Conversion of such Lender’s LIBOR Loans pursuant to this Section no longer exist (which such Lender or the Administrative Agent, as applicable, agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding, then such Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as to principal amounts, Types and Interest Periods) in accordance with their respective Commitments.

(b) If the obligation of a Lender to make LIBOR Margin Loans shall be suspended pursuant to Section 4.1.(c) or 4.2., then the LIBOR Margin Loans of such Lender shall be automatically due and payable on such date as such Lender may specify to the Borrower by written notice with a copy to the Administrative Agent.

Section 4.6. Affected Lenders.

If (a) a Lender requests compensation pursuant to Section 3.10. or 4.1., and the Requisite Lenders are not also doing the same, or (b) the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or 4.3. but the obligation of the Requisite Lenders shall not have been suspended under such Sections, (c) a Lender becomes a Non-Consenting Lender, or (d) a Lender has become a Defaulting Lender then, so long as there does not then exist any Event of Default, the Borrower may demand that such Lender (the “Affected Lender”), and upon such demand the Affected Lender shall promptly, assign its Commitment to an Eligible Assignee subject to and in accordance with the provisions of Section 12.5.(b) for a purchase price equal to (x) the aggregate principal balance of all Loans then owing to the Affected Lender, plus (y) the aggregate amount of payments previously made by the Affected Lender under Section 2.4.(j) that have not been repaid, plus (z) any accrued but unpaid interest thereon and accrued but unpaid fees owing to the Affected Lender, or any other amount as may be mutually agreed upon by such Affected Lender and Eligible Assignee. Each of the Administrative Agent and the Affected Lender shall reasonably cooperate

in effectuating the replacement of such Affected Lender under this Section, but at no time shall the Administrative Agent, such Affected Lender, any other Lender or any Titled Agent be obligated in any way whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. The exercise by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no cost or expense to the Administrative Agent, the Affected Lender or any of the other Lenders. The terms of this Section shall not in any way limit the Borrower’s obligation to pay to any Affected Lender compensation owing to such Affected Lender pursuant to this Agreement (including, without limitation, pursuant to Sections 3.10., 4.1. or 4.4.) with respect to any period up to the date of replacement. Each Lender agrees that if the Borrower exercises its option hereunder to cause an assignment by such Lender as an Affected Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 12.5. In the case of any such assignment resulting from a claim for compensation pursuant to Section 3.10. or 4.1., such assignment shall only be permitted if such assignment will result in a reduction in such compensation thereafter.

Section 4.7. Change of Lending Office.

Each Lender agrees that it will use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate an alternate Lending Office with respect to any of its Loans affected by the matters or circumstances described in Sections 3.10., 4.1. or 4.3. or take such other measures as such Lender deems reasonable in its sole discretion to reduce the liability of the Borrower or avoid the results provided thereunder, so long as such designation is not disadvantageous to such Lender as determined by such Lender in its sole discretion, except that such Lender shall have no obligation to designate a Lending Office located in the United States of America.

Section 4.8. Assumptions Concerning Funding of LIBOR Loans.

Calculation of all amounts payable to a Lender under this Article shall be made as though such Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant market bearing interest at the rate applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR Loans and having a maturity comparable to the relevant Interest Period; provided, however, that each Lender may fund each of its LIBOR Loans in any manner it sees fit and the foregoing assumption shall be used only for calculation of amounts payable under this Article.

ARTICLE V. CONDITIONS PRECEDENT

Section 5.1. Conditions Precedent to Effectiveness.

The effectiveness of this Agreement, including without limitation, the Lenders’ consent under Section 12.23. to the Assumption and the release of the Parent from its obligations under the Existing Credit Agreement, and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, are both subject to the satisfaction or waiver of the following conditions precedent:

(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:

(i) counterparts of this Agreement executed by each of the parties hereto;

(ii) Revolving Notes, Term Notes and Bid Rate Notes executed by the Borrower, payable to each applicable Lender (including any Designated Lender, if applicable but excluding

any Lender that has requested that it not receive Notes) and complying with the terms of Section 2.12.(a) and the Swingline Note executed by the Borrower;

(iii) an opinion of counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;

(iv) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party;

(v) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;

(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Revolving Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;

(vii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;

(viii) a Compliance Certificate calculated as of the Effective Date on a pro forma basis for the Parent’s fiscal quarter ended September 30, 2016;

(ix) a Disbursement Instruction Agreement effective as of the Agreement Date;

(x) evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent under the Existing Credit Agreement or this Agreement to the extent a reasonably detailed invoice has been delivered to the Borrower prior to the Agreement Date, including without limitation the reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent, have been paid;

(xi) copies certified by a Responsible Officer of the Borrower of the material assumption and contribution agreements entered into between or among any of the Parent, the Borrower or any other Subsidiary to effect the Reorganization, including in any event (A) all such agreements effecting the contribution to the Borrower or any of its Subsidiaries of all Properties and other assets of the Parent and any of its other Subsidiaries other than assets permitted to be held by the Parent and its Subsidiaries under Section 7.15.(a) and (B) any such assumption

agreements executed by the Borrower with respect to the Indebtedness of the Parent permitted to exist under Section 7.15.(a)(3)(iii).

(xii) an officer’s certificate from the chief executive officer or chief financial officer of the Borrower certifying that (A) the Reorganization has been, or will be substantially contemporaneously with the effectiveness of this Agreement, consummated, (B) no Default or Event of Default exists as of the date the Reorganization, or will exist immediately after giving effect thereto and (C) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on the date the Reorganization except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted hereunder;

(xiii) such other documents and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and

(b) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.

Section 5.2. Conditions Precedent to All Loans and Letters of Credit.

The obligations of (i) Lenders to make any Loans and (ii) the Issuing Banks to issue Letters of Credit are each subject to the further conditions precedent that: (a) no Default or Event of Default shall exist as of the date of the making of such Loan or date of issuance of such Letter of Credit or would exist immediately after giving effect thereto, and no violation of the limits described in Section 2.16. would occur after giving effect thereto; (b) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of the making of such Loan or date of issuance of such Letter of Credit with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder and (c) in the case of the borrowing of Revolving Loans, the Administrative Agent shall have received a timely Notice of Revolving Borrowing, in the case of a Swingline Loan, the Swingline Lender shall have received a timely Notice of Swingline Borrowing, and in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a timely request for the issuance of such Letter of Credit. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in the preceding sentence (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of such Credit Event). In addition, the Borrower shall be deemed to have represented to the Administrative Agent and the Lenders at the time any Loan is made or any Letter of Credit is issued that all conditions to the

making of such Loan or issuing of such Letter of Credit contained in this Article V. have been satisfied. Unless set forth in writing to the contrary, the making of its initial Loan by a Lender shall constitute a certification by such Lender to the Administrative Agent for the benefit of the Administrative Agent and the Lenders that the conditions precedent for initial Loans set forth in Sections 5.1. and 5.2. that have not previously been waived by the Lenders in accordance with the terms of this Agreement have been satisfied.

Section 5.3. Post- Closing Deliveries.

On or before three (3) Business Days after the Effective Date, the Borrower shall deliver to the Administrative Agent (A) the Articles of Amendment and Restatement of Declaration of Trust of the Borrower certified as of a recent date by the Maryland State Department of Assessments and Taxation and (B) a certificate of good standing (or certificate of similar meaning) with respect to Borrower issued as of a recent date by the Maryland State Department of Assessments and Taxation reflecting the Borrower’s legal name as “EQC Operating Trust”.

ARTICLE VI. REPRESENTATIONS AND WARRANTIES

Section 6.1. Representations and Warranties.

In order to induce the Administrative Agent and each Lender to enter into this Agreement and to make Loans and, in the case of the Issuing Banks, to issue Letters of Credit, the Borrower represents and warrants to the Administrative Agent, the Issuing Banks and each Lender as follows:

(a) Organization; Power; Qualification . Each of the Borrower, the other Loan Parties, the Parent and its other Subsidiaries is a corporation, partnership or other legal entity (i) duly organized or formed, validly existing and in good standing under the jurisdiction of its incorporation or formation, except where the failure of such Person (other than Borrower) to be so organized, formed, validly existing or in good standing has not had, and could not reasonably be expected to have, in each instance, a Material Adverse Effect, (ii) with the power and authority to own or lease its respective properties and to carry on its respective business as now being and hereafter proposed to be conducted, except where the failure of such Person (other than Borrower) to do so has not had, and could not reasonably be expected to have, in each instance, a Material Adverse Effect and (iii) duly qualified and authorized to do business in each jurisdiction necessary to carry out its business and operations, except where the failure of such Person (other than the Borrower) to be so qualified and authorized could not reasonably be expected to have, in each instance, a Material Adverse Effect.

(b) Ownership Structure . Part I of Schedule 6.1.(b) is, as of the Agreement Date, a complete and correct list (which may be demonstrated graphically) of all Subsidiaries of the Parent setting forth for each such Subsidiary (i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding any Equity Interest in such Subsidiary, (iii) the nature of the Equity Interests held by each such Person, (iv) the percentage of ownership of such Subsidiary represented by such Equity Interests and (v) whether such Subsidiary is an Excluded Subsidiary.

(c) Authorization of Loan Documents and Borrowings . The Borrower has the right and power, and has taken all necessary action to authorize it, to borrow and obtain other extensions of credit hereunder. The Borrower and each other Loan Party has the right and power, and has taken all necessary action to authorize it, to execute, deliver and perform each of the Loan Documents and the Fee Letters to which it is a party in accordance with their respective terms and to consummate the transactions contemplated hereby and thereby including without limitation, in the case of the Borrower, the Assumption. The Loan Documents and the Fee Letters to which the Parent, the Borrower or any other

Loan Party is a party have been duly executed and delivered by the duly authorized officers of such Person and each is a legal, valid and binding obligation of such Person (or the Borrower rather than the Parent in the case of the Fee Letters) enforceable against such Person in accordance with its respective terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations (other than the payment of principal) contained herein or therein and as may be limited by equitable principles generally.

(d) Compliance of Loan Documents with Laws . The execution, delivery and performance of this Agreement, the other Loan Documents to which any Loan Party is a party and of the Fee Letters in accordance with their respective terms, the borrowings and other extensions of credit hereunder and the Assumption do not and will not, by the passage of time, the giving of notice, or both: (i) require any Governmental Approval or violate any Applicable Law (including all Environmental Laws) relating to the Parent, the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of the Parent or any Loan Party, or any indenture, agreement or other instrument to which the Parent, the Borrower or any other Loan Party is a party or by which it or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by any Loan Party other than in favor of the Administrative Agent for its benefit and the benefit of the Lenders and the Issuing Banks.

(e) Compliance with Law; Governmental Approvals . Each of the Borrower, the other Loan Parties, the Parent and the other Subsidiaries is in compliance with each Governmental Approval and all other Applicable Laws relating to it except for noncompliances which, and Governmental Approvals the failure to possess which, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(f) Title to Properties; Liens . Each of the Borrower, each other Loan Party, the Parent and each other Subsidiary has good, marketable and legal title to, or a valid leasehold interest in, its respective assets, including all intellectual property, subject to Permitted Liens. As of the Agreement Date, there are no Liens against any assets of the Borrower, any other Loan Party, the Parent or any other Subsidiary except for Permitted Liens.

(g) Existing Indebtedness . Schedule 6.1.(g) is, as of the Agreement Date, a complete and correct listing of all Indebtedness (including all Guarantees) with an outstanding principal amount of $5,000,000 or more of each of the Borrower, the other Loan Parties, the Parent and the other Subsidiaries, and if such Indebtedness is secured by any Lien, a description of all of the property subject to such Lien. As of the Agreement Date, the aggregate principal amount of Indebtedness of each of the Borrower, the other Loan Parties and the other Subsidiaries that is not set forth on Schedule 6.1.(g) does not exceed $10,000,000.

(h) Litigation . Except as set forth on Schedule 6.1.(h), there are no actions, suits or proceedings pending (nor, to the knowledge of any Loan Party, are there any actions, suits or proceedings threatened, nor is there any basis therefor) against or in any other way relating adversely to or affecting the Borrower, any other Loan Party, the Parent, any other Subsidiary or any of their respective property in any court or before any arbitrator of any kind or before or by any other Governmental Authority which, (i) could reasonably be expected to have a Material Adverse Effect or (ii) in any manner draws into question the validity or enforceability of any Loan Documents or any Fee Letter. There are no strikes, slow downs, work stoppages or walkouts or other labor disputes in progress or threatened, in writing, relating to, the Borrower, any other Loan Party, the Parent or any other Subsidiary except for those which could not reasonably be expected to have a Material Adverse Effect.

(i) Taxes . All federal and state income tax and other material tax returns of the Borrower, each other Loan Party, the Parent and each other Subsidiary required by Applicable Law to be filed have been duly filed, and all federal and state income taxes and other material taxes, assessments and other governmental charges or levies upon, each Loan Party, the Parent, each other Subsidiary and their respective properties, income, profits and assets which are due and payable have been paid, except any such nonpayment or non-filing which is at the time permitted under Section 7.6.

(j) Financial Statements . The Borrower has furnished to each Lender copies of (i) the audited consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal year ended December 31, 2015, and the related audited consolidated statements of operations, comprehensive income (loss), shareholders’ equity and cash flow for the fiscal year ended on such date, with the opinion thereon of Ernst &Young LLP, and (ii) the unaudited consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal quarter ended September 30, 2016, and the related unaudited consolidated statements of operations, comprehensive income (loss) and cash flow of the Parent and its consolidated Subsidiaries for the two fiscal quarter period ended on such date. Such balance sheets and statements (including in each case related schedules and notes) present fairly, in accordance with GAAP consistently applied throughout the periods involved, the consolidated financial position of the Borrower and its consolidated Subsidiaries as at their respective dates and the results of operations and the cash flow for such periods (subject, as to interim statements, to changes resulting from normal year-end audit adjustments).

(k) No Material Adverse Change . Since September 30, 2014, there has been no material adverse change in the consolidated financial condition, results of operations, business or prospects of the Parent and its consolidated Subsidiaries, or of the Borrower and its consolidated Subsidiaries, in each case, taken as a whole. The Borrower is, and the Parent and its Subsidiaries taken as a whole are, Solvent.

(l) REIT Status . The Parent qualifies, and has elected to be treated, as a REIT and is in compliance with all requirements and conditions imposed under the Internal Revenue Code to allow the Parent to maintain its status as a REIT.

(m) ERISA .

(i) Each Benefit Arrangement is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other Applicable Laws in all material respects. Except with respect to Multiemployer Plans, each Qualified Plan (A) has received a favorable determination from the Internal Revenue Service applicable to such Qualified Plan’s current remedial amendment cycle (as defined in Revenue Procedure 2007-44 or “2007-44” for short), (B) has timely filed for a favorable determination letter from the Internal Revenue Service during its staggered remedial amendment cycle (as defined in 2007-44) and such application is currently being processed by the Internal Revenue Service, (C) had filed for a determination letter prior to its “GUST remedial amendment period” (as defined in 2007-44) and received such determination letter and the staggered remedial amendment cycle first following the GUST remedial amendment period for such Qualified Plan has not yet expired, or (D) is maintained under a prototype plan and may rely upon a favorable opinion letter issued by the Internal Revenue Service with respect to such prototype plan. To the Borrower’s knowledge, nothing has occurred which would cause the loss of its reliance on each Qualified Plan’s favorable determination letter or opinion letter.

(ii) With respect to any Benefit Arrangement that is a retiree welfare benefit arrangement, all amounts have been accrued on the applicable ERISA Group’s financial

statements in accordance with FASB ASC 715. The “benefit obligation” of all Plans does not exceed the “fair market value of plan assets” for such Plans by more than $10,000,000 all as determined by and with such terms defined in accordance with FASB ASC 715.

(iii) Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i) no ERISA Event has occurred or is expected to occur; (ii) there are no pending, or to the best knowledge of the Borrower, threatened, claims, actions or lawsuits or other action by any Governmental Authority, plan participant or beneficiary with respect to a Benefit Arrangement; (iii) there are no violations of the fiduciary responsibility rules with respect to any Benefit Arrangement; and (iv) no member of the ERISA Group has engaged in a non-exempt “prohibited transaction,” as defined in Section 406 of ERISA and Section 4975 of the Internal Revenue Code, in connection with any Plan, that would subject any member of the ERISA Group to a tax on prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of the Internal Revenue Code.

(n) Compliance with Organizational Documents . None of the Borrower, any of the other Loan Parties, the Parent or any of the other Subsidiaries is in default under its certificate or articles of incorporation or formation, bylaws, partnership agreement or other similar organizational documents except where such default in the case of any such Person (other than the Borrower) could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(o) Environmental Laws . In the ordinary course of business in connection with due diligence performed with respect to a Property, each of the Borrower, each other Loan Party, the Parent and the other Subsidiaries generally conducts Phase I environmental assessments, and from time to time each of the Borrower, each other Loan Party, the Parent and the other Subsidiaries performs operational reviews of the effect of Environmental Laws on its respective businesses, operations and Properties. Each of the Borrower, each other Loan Party, the Parent and the other Subsidiaries: (i) is in compliance with all Environmental Laws applicable to its business, operations and the Properties, (ii) has obtained all Governmental Approvals which are required under Environmental Laws, and each such Governmental Approval is in full force and effect, and (iii) is in compliance with all terms and conditions of such Governmental Approvals, where with respect to each of the immediately preceding clauses (i) through (iii) the failure to obtain or to comply with could reasonably be expected to have a Material Adverse Effect. Except for any of the following matters that could not reasonably be expected to have a Material Adverse Effect, no Loan Party has any knowledge of, or has received notice of, any past, present, or pending releases, events, conditions, circumstances, activities, practices, incidents, facts, occurrences, actions, or plans that, with respect to any Loan Party, the Parent or any other Subsidiary, their respective businesses, operations or with respect to the Properties, may: (x) cause or contribute to a violation of or noncompliance with Environmental Laws, (y) cause or contribute to any other common-law or legal claim or other liability, or (z) cause any of the Properties to become subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law or require the filing or recording of any notice, approval or disclosure document under any Environmental Law and, with respect to the immediately preceding clauses (x) through (z) is based on or related to the on-site or off-site manufacture, generation, processing, distribution, use, treatment, storage, disposal, transport, removal, clean up or handling, or the emission, discharge, release or threatened release of any wastes or Hazardous Material, or any other requirement under Environmental Law. There is no civil, criminal, or administrative action, suit, demand, claim, hearing, notice, or demand letter, mandate, order, lien, request, investigation, or proceeding pending or, to the Borrower’s knowledge after due inquiry, threatened, against the Borrower, any other Loan Party, the Parent or any other Subsidiary relating in any way to Environmental Laws which, reasonably could be expected to have a Material Adverse Effect. None of the Properties is listed on or proposed for listing on the National Priority List promulgated pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and its implementing

regulations, or any state or local priority list promulgated pursuant to any analogous state or local law. No Hazardous Materials have been transported, released, discharged or disposed on any of the Properties other than (x) in compliance with all applicable Environmental Laws or (y) as could not reasonably be expected to have a Material Adverse Effect.

(p) Investment Company . None of the Borrower, any other Loan Party, the Parent or any of its other Subsidiaries is (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or (ii) subject to any other Applicable Law which purports to regulate or restrict its ability to borrow money or obtain other extensions of credit or to consummate the transactions contemplated by this Agreement or to perform its obligations under any Loan Document to which it is a party.

(q) Business . As of the Agreement Date, the Borrower, the Parent and its other Subsidiaries are engaged substantially in the business of owning, operating and developing office, retail and industrial assets, together with other business activities incidental thereto and together with such other uses currently in use at the Properties.

(r) Broker’s Fees . No broker’s or finder’s fee, commission or similar compensation will be payable with respect to the transactions contemplated hereby. No other similar fees or commissions will be payable by any Loan Party for any other services rendered to the Borrower, any other Loan Party, the Parent or any other Subsidiary ancillary to the transactions contemplated hereby.

(s) Accuracy and Completeness of Information . All written information, reports and other papers and data (other than financial projections and other forward looking statements) furnished to the Administrative Agent or any Lender by, on behalf of, or at the direction of, the Borrower, any other Loan Party, the Parent or any other Subsidiary were, at the time the same were so furnished, complete and correct in all material respects, to the extent necessary to give the recipient a true and accurate knowledge of the subject matter, or, in the case of financial statements, present fairly, in accordance with GAAP consistently applied throughout the periods involved, the financial position of the Persons involved as at the date thereof and the results of operations for such periods (subject, as to interim statements, to changes resulting from normal year end audit adjustments and absence of full footnote disclosure). All financial projections and other forward looking statements prepared by or on behalf of the Borrower, any other Loan Party, the Parent or any other Subsidiary that have been or may hereafter be made available to the Administrative Agent or any Lender were or will be prepared in good faith based on reasonable assumptions. No document furnished or written statement made to the Administrative Agent or any Lender in connection with the negotiation, preparation or execution of, or pursuant to, this Agreement or any of the other Loan Documents contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, and all financial projections, budgets and pro formas concerning the Borrower, any other Loan Party, the Parent or any other Subsidiary that have been made available to Administrative Agent or any Lender by the Borrower, any other Loan Party, the Parent or any other Subsidiary (or on their behalf) (the “Projections”) have been prepared in good faith based upon assumptions believed to be reasonable at the time made, it being understood that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies, and actual results may vary materially from the Projections.

(t) Not Plan Assets; No Prohibited Transactions . None of the assets of the Borrower, any other Loan Party, the Parent or any other Subsidiary constitutes “plan assets” within the meaning of 29 C.F.R. 2510.3-101, as modified by Section 3(42) of ERISA (“Plan Assets”). Assuming that no Lender funds any amount payable by it hereunder with Plan Assets, the execution, delivery and performance of this Agreement and the other Loan Documents, and the extensions of credit and repayment of amounts

hereunder, do not and will not constitute non-exempt “prohibited transactions” under Section 406(a) of ERISA or Section 4975(c)(1)(A)-(D) of the Internal Revenue Code.

(u) Anti-Corruption Laws and Sanctions; Anti-Terrorism Laws . None of the Parent, the Borrower, any other Subsidiary, any of their respective directors, or officers, or, to the knowledge of the Borrower, any of the Parent’s, the Borrower’s or any other Subsidiary’s employees and agents (i) is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States, 50 U.S.C. App. §§ 1 et seq., as amended (the “Trading with the Enemy Act”) or (ii) is in violation of (A) the Trading with the Enemy Act, (B) any of the foreign assets control regulations of the United States Treasury Department or any enabling legislation or executive order relating thereto, including without limitation, Executive Order No. 13224, effective as of September 24, 2001 relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (C) the Patriot Act (collectively, the “Anti-Terrorism Laws”). The Parent, the Borrower, the other Subsidiaries and their respective directors, officers, employees and agents are in compliance with applicable Anti-Corruption Laws, Anti-Terrorism Laws and Sanctions in all material respects. None of the Parent, the Borrower or any other Subsidiary is, or derives any of its assets or operating income from investments in or transactions with, a Sanctioned Person and none of the respective directors, officers, or to the knowledge of the Borrower, employees or agents of the Borrower, the Parent or any of its other Subsidiaries is a Sanctioned Person.

(v) Unencumbered Assets; Unencumbered Mortgage Notes . As of the Agreement Date, Part I of Schedule 6.1.(v) is a correct and complete list of all Unencumbered Assets and Part II of Schedule 6.1.(v) is a correct and complete list of all Unencumbered Mortgage Notes. Each of the Properties included by the Borrower in calculations of Unencumbered Asset Value satisfies all of the requirements contained in the definition of “Unencumbered Asset”. Each of the promissory notes included by the Borrower in calculations of Unencumbered Asset Value satisfies all of the requirements contained in the definition of “Unencumbered Mortgage Note”.

(w) Margin Stock . None of the Borrower, the Parent or any of its other Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System.

(x) EEA Financial Institution . None of the Parent, the Borrower, any other Loan Party or any other Subsidiary is an EEA Financial Institution.

Section 6.2. Survival of Representations and Warranties, Etc.

All representations and warranties made under this Agreement and the other Loan Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date, the date on which any extension of the Revolving Termination Date is effectuated pursuant to Section 2.14., the date on which any increase of the Revolving Commitments or the making of Additional Term Loans is effectuated pursuant to Section 2.17. and at and as of the date of the occurrence of each Credit Event, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder. All such representations and warranties shall survive the effectiveness of this Agreement, the execution and delivery of the Loan Documents and the making of the Loans and the issuance of the Letters of Credit.

ARTICLE VII. AFFIRMATIVE COVENANTS

For so long as this Agreement is in effect, the Borrower shall comply with the following covenants:

Section 7.1. Preservation of Existence and Similar Matters.

Except as otherwise permitted under Section 9.4., the Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, preserve and maintain its respective existence, rights, franchises, licenses and privileges in the jurisdiction of its incorporation or formation and qualify and remain qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification and authorization and where the failure to be so authorized and qualified could reasonably be expected to have a Material Adverse Effect.

Section 7.2. Compliance with Applicable Law.

The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, comply with all Applicable Law, including all Anti-Corruption Laws and applicable Sanctions and the obtaining of all Governmental Approvals, the failure with which to comply could reasonably be expected to have a Material Adverse Effect.

Section 7.3. Maintenance of Property.

In addition to the requirements of any of the other Loan Documents, the Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, (a) protect and preserve all of its respective material properties, or cause to be protected and preserved, including, but not limited to, all intellectual property necessary to the conduct of its respective business, and maintain, or cause to be maintained, in good repair, working order and condition all tangible properties, ordinary wear and tear and casualty and condemnation excepted, and (b) from time to time make or cause to be made all needed and appropriate repairs, renewals, replacements and additions to such properties as determined in the Borrower’s reasonable business judgment.

Section 7.4. Conduct of Business.

The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, carry on its respective businesses as described in Section 6.1.(q).

Section 7.5. Insurance.

The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, maintain, or cause to be maintained, insurance (on a replacement cost basis) with financially sound and reputable insurance companies against such risks and in such amounts as is customarily maintained by Persons engaged in similar businesses or as may be required by Applicable Law. The Borrower shall from time to time deliver to the Administrative Agent upon request a detailed list, together with evidence of the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby.

Section 7.6. Payment of Taxes and Claims.

The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, pay and discharge, or cause to be paid and discharged, when due (a) all federal, state and other

material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials, supplies and rentals which, if unpaid, might become a Lien on any properties of such Person; provided, however, that this Section shall not require the payment or discharge of any such tax, assessment, charge, levy or claim which is being contested in good faith by appropriate proceedings which operate to suspend the collection thereof and for which adequate reserves have been established on the books of such Person in accordance with GAAP.

Section 7.7. Books and Records; Inspections.

The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities in accordance with GAAP and Applicable Law. The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, permit representatives of the Administrative Agent or any Lender to visit and inspect any of their respective properties, to examine and make abstracts from any of their respective books and records and to discuss their respective affairs, finances and accounts with their respective officers, employees and independent public accountants (in the presence of an officer of the Borrower or the Parent), all at such reasonable times during business hours and as often as may reasonably be requested and so long as no Event of Default exists, with reasonable prior notice; provided that unless an Event of Default exists, only one such visit shall be permitted during any fiscal year. The Borrower shall be obligated to reimburse the Administrative Agent and the Lenders for their costs and expenses incurred in connection with the exercise of their rights under this Section only if such exercise occurs while an Event of Default exists.

Section 7.8. Use of Proceeds.

The Borrower will use the proceeds of Loans only for the repayment of Indebtedness, the acquisition of Properties, working capital needs and other general business purposes. The Borrower shall only use Letters of Credit for the same purposes for which it may use the proceeds of Loans.

Section 7.9. Environmental Matters.

The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, comply, or cause to be complied, with all Environmental Laws the failure with which to comply could reasonably be expected to have a Material Adverse Effect. The Borrower shall use, and shall cause each other Loan Party, the Parent and each other Subsidiary to use, commercially reasonable efforts to cause all other Persons occupying, using or present on the Properties to comply, with all Environmental Laws the failure with which to comply could reasonably be expected to have a Material Adverse Effect. The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, promptly take all actions and pay or arrange to pay all costs necessary for it and for the Properties to comply with all Environmental Laws and all Governmental Approvals the failure with which to comply could reasonably be expected to have a Material Adverse Effect, including actions to remove and dispose of all Hazardous Materials and to clean up the Properties as required under Environmental Laws. The Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, promptly take, or cause to be taken, all actions necessary to prevent the imposition of any Liens on any of their respective properties arising out of or related to any Environmental Laws in each case to the extent the failure to take such actions could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Nothing in this Section shall impose any obligation or liability whatsoever on the Administrative Agent or any Lender.

Section 7.10. Further Assurances.

At the Borrower’s reasonable cost and expense and upon request of the Administrative Agent, the Borrower shall, and shall cause each other Loan Party, the Parent and each other Subsidiary to, duly execute and deliver or cause to be duly executed and delivered, to the Administrative Agent such further instruments, documents and certificates, and do and cause to be done such further acts that may be reasonably necessary or advisable in the reasonable opinion of the Administrative Agent to carry out more effectively the provisions and purposes of this Agreement and the other Loan Documents.

Section 7.11. REIT Status.

The Borrower shall cause the Parent to maintain the Parent’s status as, and election to be treated as, a REIT.

Section 7.12. Exchange Listing.

The Borrower shall cause the Parent to maintain at least one class of common shares of the Parent having trading privileges on the New York Stock Exchange or the American Stock Exchange or which is subject to price quotations on The NASDAQ Stock Market’s National Market System.

Section 7.13. Guarantors.

(a) Within 10 Business Days following the date on which either of the following conditions first applies to any Subsidiary (other than a Foreign Subsidiary) that is not already a Guarantor, the Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (i) an Accession Agreement (or if the Guaranty is not then in effect, the Guaranty) and (ii) the items that would have been delivered under (iii) through (vii), and (xiii) of Section 5.1.(a) and Section 5.1.(b) if such Subsidiary had been a Loan Party on the Agreement Date:

(A) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any Indebtedness of the Parent or any other Subsidiary of the Parent (other than an Excluded Subsidiary or a Foreign Subsidiary Guaranteeing or otherwise becoming obligated in respect of the Indebtedness of another Excluded Subsidiary or Foreign Subsidiary, as applicable); or

(B) (i) such Subsidiary (other than a Foreign Subsidiary) owns an Unencumbered Asset or other asset the value of which is included in the determination of Unencumbered Asset Value and (ii) such Subsidiary, or any other Subsidiary that directly or indirectly owns any Equity Interest in such Subsidiary, has incurred, acquired or suffered to exist any Indebtedness that is not Nonrecourse Indebtedness.

(b) The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, a Guarantor from the Guaranty so long as: (i) such Guarantor is not otherwise required (or upon its release will not be required) to be a party to the Guaranty under the immediately preceding subsection (a) or Section 7.15. in the case of the Parent; (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.; (iii) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such release with the same force and effect as if made on and as of such date except to the extent

that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances expressly permitted under the Loan Documents; and (iv) the Administrative Agent shall have received such written request at least 10 Business Days (or such shorter period as may be acceptable to the Administrative Agent) prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.

Section 7.14. Margin Stock.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to, engage principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System.

Section 7.15. Limitation on Parent’s Assets and Liabilities.

(a) For so long as the Parent is not a Guarantor, the Borrower shall cause the Parent’ s assets to consist solely of Equity Interests in the Borrower or Equity Interests in any Wholly Owned Subsidiaries whose assets consist solely of direct or indirect Equity Interests in the Borrower; provided, that the Parent may (A) have cash and other assets of nominal value incidental to its ownership of such Equity Interests and the Equity Interests described in the following clause (B), (B) own other Equity Interests or such other assets as may be approved by the Administrative Agent in its sole discretion, which interests or assets shall in any event have an aggregate book value not in excess of $50,000,000 and (C) maintain assets on a temporary or pass-through basis that are held for subsequent payment of dividends or other Restricted Payments not prohibited by this Agreement or any other Loan Document or for contribution to any Subsidiary for a period not in excess of ten (10) Business Days. In addition, neither the Parent, nor any Wholly Owned Subsidiaries whose assets consist solely of direct or indirect Equity Interests in the Borrower, shall have any liabilities other than liabilities that would be reflected in consolidated financial statements of the Borrower; provided, that the Parent may have (1) other liabilities incidental to its status as a publicly traded REIT and not constituting liabilities in respect of Indebtedness for borrowed money, including liabilities associated with employment contracts, employee benefit matters, indemnification obligations pursuant to purchase and sale agreements, tax liabilities and legacy liabilities arising pursuant to contracts entered into in the ordinary course of business prior to (and not in contemplation of) the Reorganization, (2) nonconsensual obligations imposed by operation of Applicable Law, (3) obligations in existence as of the date hereof (i) in the form of guarantees of customary exceptions to Nonrecourse Indebtedness, (ii) contingent obligations in relation to ground leases in respect of which the Parent was a primary obligor prior to the Reorganization and (iii) in relation to the Parent’s 6.25% senior notes due June 15, 2017, 6.65% senior notes due January 15, 2018, 5.875% senior notes due September 15, 2020 and 5.75% senior notes due August 2, 2042, in each case, incurred pursuant to the Indenture dated as of July 9, 1997, between the Parent and U.S. Bank National Association, as trustee, as supplemented, (4) obligations under any additional senior notes that may be issued by the Parent pursuant to an indenture with substantially the same obligors as the notes described in the immediately preceding clause (3)(iii) and (5) other immaterial obligations, immaterial intercompany obligations or other intercompany obligations owing by the Parent or any Subsidiary of the Parent that is not a Subsidiary of the Borrower to the Borrower or any Subsidiary of the Borrower).

(b) If at any time the requirements set forth in the preceding subsection (a) are not satisfied, the Borrower shall deliver to the Administrative Agent promptly and in any event within five (5) Business Days of the first date on which such requirements were not satisfied, each of the following in form and substance satisfactory to the Administrative Agent: (x) an Accession Agreement (or if the Guaranty is not then in effect, the Guaranty) executed by the Parent and (y) the items that would have been delivered under (iii) through (vii), and (xiii) of Section 5.1.(a) and Section 5.1.(b) if the Parent had been a Loan Party on the Agreement Date .

ARTICLE VIII. INFORMATION

For so long as this Agreement is in effect, the Borrower shall furnish to the Administrative Agent for distribution to each of the Lenders:

Section 8.1. Quarterly Financial Statements.

As soon as available and in any event within 5 days after the same is filed with the SEC (but in no event later than 50 days after the close of each of the first, second and third fiscal quarters of the Parent), the unaudited consolidated balance sheet of the Parent and its Subsidiaries as at the end of such period and the related unaudited consolidated statements of income, comprehensive income (loss) and cash flows of the Parent and its Subsidiaries for such period, setting forth in each case in comparative form the figures as of the end of and for the corresponding periods of the previous fiscal year, all of which shall be certified by the chief financial officer or chief accounting officer of the Parent, in his or her opinion, to present fairly, in accordance with GAAP and in all material respects, the consolidated financial position of the Parent and its Subsidiaries as at the date thereof and the results of operations for such period (subject to normal year-end audit adjustments). Together with such financial statements, the Borrower shall deliver reports, in form and detail satisfactory to the Administrative Agent, setting forth: (a) a statement of Funds From Operations for the fiscal quarter then ending; (b) a listing of capital expenditures made during the fiscal quarter then ended; and (c) a listing of all Properties acquired during such fiscal quarter, including the net operating income of each such Property, acquisition costs and related mortgage debt, if any.

Section 8.2. Year-End Statements.

As soon as available and in any event within 5 days after the same is filed with the SEC (but in no event later than 90 days after the end of each fiscal year of the Parent), the audited consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of income, comprehensive income (loss), shareholders’ equity and cash flows of the Parent and its Subsidiaries for such fiscal year, setting forth in comparative form the figures as at the end of and for the previous fiscal year, all of which shall be (a) certified by the chief financial officer or chief accounting officer of the Parent, in his or her opinion, to present fairly, in accordance with GAAP and in all material respects, the financial position of the Parent and its Subsidiaries as at the date thereof and the result of operations for such period and (b) accompanied by the report thereon of Ernst &Young LLP or any other independent certified public accountants of recognized national standing, whose opinion shall be unqualified. Together with such financial statements, the Borrower shall deliver a report, certified by the chief financial officer or chief accounting officer of Parent, in form and detail reasonably satisfactory to the Administrative Agent, setting forth the Net Operating Income for each Property for such fiscal year.

Section 8.3. Compliance Certificate.

At the time the financial statements are furnished pursuant to the immediately preceding Sections 8.1. and 8.2., and within 5 Business Days of the Administrative Agent’s request with respect to any other fiscal period, a certificate substantially in the form of Exhibit S (a “Compliance Certificate”) executed on behalf of the Borrower by the chief financial officer or chief accounting officer of the Borrower (a) setting forth in reasonable detail as of the end of such quarterly accounting period or fiscal year, as the case may be, the calculations required to establish whether the Borrower was in compliance with the covenants contained in Section 9.1. (and identifying the exclusions made to comply with Section 1.3.); and (b) stating that, to the best of his or her knowledge, information and belief after due inquiry, no Default or Event of Default exists, or, if such is not the case, specifying such Default or Event of Default and its nature, when it occurred and the steps being taken by the Borrower with respect to such event, condition or failure.

Section 8.4. Other Information.

(a) Within five (5) Business Days of the filing thereof and to the extent the same are not publicly available, copies of all registration statements (excluding the exhibits thereto (unless requested by the Administrative Agent) and any registration statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all other periodic reports which the Parent, the Borrower, any other Loan Party or any other Subsidiary shall file with the SEC or any national securities exchange;

(b) Promptly upon the mailing thereof to the shareholders of the Parent generally and to the extent the same are not publicly available, copies of all financial statements, reports and proxy statements so mailed and promptly upon the issuance thereof copies of all press releases issued by the Parent, the Borrower, any other Loan Party or any other Subsidiary;

(c) If any ERISA Event shall occur that individually, or together with any other ERISA Event that has occurred, could reasonably be expected to have a Material Adverse Effect, a certificate of the chief executive officer or chief financial officer of the Borrower setting forth details as to such occurrence and the action, if any, which the Borrower or applicable member of the ERISA Group is required or proposes to take;

(d) To the extent the Parent, the Borrower, any other Loan Party or any other Subsidiary is aware of the same, prompt notice of any matter that has had, or which could reasonably be expected to have, a Material Adverse Effect;

(e) A copy of any amendment to the certificate or articles of incorporation or formation, bylaws, partnership agreement or other similar organizational documents of the Borrower or any other Loan Party promptly upon the Administrative Agent’s request;

(f) Prompt notice of any change in the Responsible Officers of the Borrower or the Parent;

(g) Notice of the occurrence of a Default or Event of Default promptly upon a Responsible Officer obtaining knowledge thereof;

(h) Promptly, upon the Borrower becoming aware of any change in the Rated Party’s Credit Rating, a certificate stating that the Rated Party’s Credit Rating has changed and the new Credit Rating that is in effect;

(i) Promptly, upon each request, information identifying the Borrower as a Lender may request in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and

(j) From time to time and promptly upon each request, such data, certificates, reports, statements, opinions of counsel, documents or further information regarding any Property or the business, assets, liabilities, financial condition, results of operations or business prospects of the Parent, the Borrower, any other Loan Party or any other Subsidiary as the Administrative Agent or any Lender may reasonably request.

Section 8.5. Electronic Delivery of Certain Information.

(a) Documents required to be delivered pursuant to the Loan Documents shall be delivered by electronic communication and delivery, including, the Internet, e-mail or intranet websites to which the Administrative Agent and each Lender have access (including a commercial, third-party website or a website sponsored or hosted by the Administrative Agent, the Borrower or the Parent) provided that the foregoing shall not apply to (i) notices to any Lender (or any Issuing Bank) pursuant to Article II. and (ii) any Lender that has notified the Administrative Agent and the Borrower that it cannot or does not want to receive electronic communications. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic delivery pursuant to procedures approved by it for all or particular notices or communications. Documents or notices delivered electronically shall be deemed to have been delivered on the date on which the Administrative Agent or the Borrower posts such documents or the documents become available on a commercial website and the Administrative Agent or Borrower notifies each Lender of said posting and provides a link thereto provided (x) if such notice or other communication is not sent or posted during the normal business hours of the recipient, said posting date and time shall be deemed to have commenced as of 9:00 a.m. Central time on the next business day for the recipient and (y) if the deemed time of delivery occurs on a day that is not a business day for the recipient, the deemed time of delivery shall be 9:00 a.m. Central time on the next business day for the recipient. Notwithstanding anything contained herein, the Borrower shall deliver paper copies of any documents to the Administrative Agent or to any Lender that requests such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents delivered electronically, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery. Each Lender shall be solely responsible for requesting delivery to it of paper copies and maintaining its paper or electronic documents.

(b) Documents required to be delivered pursuant to Article II. may be delivered electronically to a website provided for such purpose by the Administrative Agent pursuant to the procedures provided to the Borrower by the Administrative Agent.

Section 8.6. Public/Private Information.

The Borrower shall cooperate with the Administrative Agent in connection with the publication of certain materials and/or information provided by or on behalf of the Borrower. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower to the Administrative Agent and the Lenders (collectively, “Information Materials”) pursuant to this Article and the Borrower shall designate Information Materials (a) that are either available to the public or not material with respect to the Parent, the Borrower and the other Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (b) that are not Public Information as “Private Information”.

Section 8.7. USA Patriot Act Notice; Compliance.

The Patriot Act and federal regulations issued with respect thereto require all financial institutions to obtain, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, a Lender (for itself and/or as agent for all Lenders hereunder) may from time-to-time request, and the Borrower shall, and shall cause the other Loan Parties to, provide promptly upon any such request to such Lender, such Loan Party’s name, address, tax identification number and/or such other identification information as shall be necessary for such Lender to comply with federal law. An “account” for this purpose may include, without limitation, a deposit account, cash management service, a transaction or asset account, a credit account, a loan or other extension of credit, and/or other financial services product.

ARTICLE IX. NEGATIVE COVENANTS

For so long as this Agreement is in effect, the Borrower shall comply with the following covenants:

Section 9.1. Financial Covenants.

(a) Leverage Ratio . The Borrower shall not permit the ratio of (i) Total Indebtedness to (ii) Total Asset Value to exceed 0.60 to 1.00 at any time; provided , however , that if such ratio is greater than 0.60 to 1.00 but is not greater than 0.65 to 1.00, then the Borrower shall be deemed to be in compliance with this subsection (a) so long as (w) the Parent or any Subsidiary completed a Material Acquisition during the quarter in which such ratio first exceeded 0.60 to 1.00, (x) such ratio does not exceed 0.60 to 1.00 after the fiscal quarter immediately following the fiscal quarter in which such Material Acquisition was completed, (y) the Borrower has not maintained compliance with this subsection (a) in reliance on this proviso more than two times during the term of this Agreement and (z) such ratio is not greater than 0.65 to 1.00 at any time. For the purpose of calculating the foregoing ratio, (A) Total Indebtedness shall be adjusted by deducting therefrom an amount equal to the lesser of (1) the amount of Unrestricted Cash on the date of such calculation and (2) the amount of Total Indebtedness that by its terms is scheduled to mature within twenty-four (24) months from the date of such calculation, and (B) Total Asset Value shall be adjusted by deducting therefrom the amount by which Total Indebtedness is adjusted under the preceding clause (A).

(b) Minimum Fixed Charge Coverage Ratio . The Borrower shall not permit the ratio of (i) Adjusted EBITDA for the fiscal quarter of the Parent most recently ending to (ii) Fixed Charges for such period, to be less than 1.50 to 1.00 at any time.

(c) Secured Indebtedness . The Borrower shall not permit the ratio of (i) Secured Indebtedness of the Parent and its Subsidiaries to (ii) Total Asset Value to be greater than 0.40 to 1.00 at any time.

(d) Unencumbered Leverage Ratio . The Borrower shall not permit the ratio of (i) Unsecured Indebtedness of the Parent and its Subsidiaries to (ii) Unencumbered Asset Value, to exceed 0.60 to 1.00 at any time provided , however , that if such ratio is greater than 0.60 to 1.00 but is not greater than 0.65 to 1.00, then the Borrower shall be deemed to be in compliance with this subsection (d) so long as (w) the Parent or any Subsidiary completed a Material Acquisition during the quarter in which such ratio first exceeded 0.60 to 1.00, (x) such ratio does not exceed 0.60 to 1.00 after the fiscal quarter immediately following the fiscal quarter in which such Material Acquisition was completed, (y) the Borrower has not maintained compliance with this subsection (d) in reliance on this proviso more than two times during the

term of this Agreement and (z) such ratio is not greater than 0.65 to 1.00 at any time. For the purpose of calculating the foregoing ratio, (A) Unsecured Indebtedness shall be adjusted by deducting therefrom an amount equal to the lesser of (1) the amount of Unrestricted Cash on the date of such calculation and (2) the amount of Unsecured Indebtedness that by its terms is scheduled to mature within twenty-four (24) months from the date of such calculation, and (B) Unencumbered Asset Value shall be adjusted by deducting therefrom the amount by which Unsecured Indebtedness is adjusted under the preceding clause (A).

(e) Unencumbered Interest Coverage Ratio . The Borrower shall not permit the ratio of (i) Unencumbered Net Operating Income to (ii) Unsecured Debt Service for the Parent’s fiscal quarter most recently ending, to be less than 1.750 to 1.0 at any time.

(f) Total Assets Owned by Foreign Subsidiaries . The Borrower shall not permit the aggregate value of Investments of the Parent and its Subsidiaries in Foreign Subsidiaries that are not Guarantors (such value to be determined in a manner consistent with the definition of Total Asset Value or, if not contemplated under the definition of Total Asset Value, as determined in accordance with GAAP) to exceed 10.0% of Total Asset Value at any time.

(g) Permitted Investments . The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to, make an Investment in or otherwise own the following items which would cause the aggregate value of such holdings of such Persons to exceed 30.0% of Total Asset Value at any time:

(i) Investments in Unconsolidated Affiliates and other Persons that are not Subsidiaries, with the value of such Investments being determined in a manner consistent with the definition of Total Asset Value or, if not contemplated under the definition of Total Asset Value, as determined in accordance with GAAP;

(ii) Assets Under Development with the value of Assets Under Development being determined in accordance with GAAP;

(iii) the book value of Mortgage Receivables;

(iv) the book value of Unimproved Land; and

(v) ownership of, or Investments in, Properties that are not Office Properties or Industrial Properties.

(h) Dividends and Other Restricted Payments . If an Event of Default exists, the Borrower shall not, and shall not permit the Parent or any other Subsidiary to, declare or make any Restricted Payments except that (i) the Borrower may declare and make cash distributions to the Parent and other holders of Equity Interests in the Borrower with respect to any fiscal year to the extent necessary for the Parent to distribute, and the Parent may so distribute, an aggregate amount not to exceed the minimum amount necessary for the Borrower to cause the Parent to remain in compliance with Section 7.11. and (ii) Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower; provided that if an Event of Default specified in Section 10.1.(a), Section 10.1.(e) or Section 10.1.(f) shall exist, or if as a result of the occurrence of any other Event of Default any of the Obligations have been accelerated pursuant to Section 10.2.(a), the Borrower shall not, and shall not permit the Parent or any other Subsidiary to, make any Restricted Payments to any Person (except that Subsidiaries may pay Restricted Payments to the Borrower or any other Subsidiary of the Borrower).

Section 9.2. Negative Pledge.

(a) The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to, create, assume, or incur any Lien (other than Permitted Liens) upon any of its properties, assets, income or profits of any character whether now owned or hereafter acquired if immediately after the creation, assumption or incurring of such Lien, a Default or Event of Default is or would be in existence, including without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained in Section 9.1.

(b) The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary (other than an Excluded Subsidiary) to, enter into, assume or otherwise be bound by any Negative Pledge except for (i) a Negative Pledge contained in an agreement (x) evidencing Indebtedness which (A) the Borrower, such Loan Party, the Parent or such Subsidiary may create, incur, assume, or permit or suffer to exist without violation of this Agreement and (B) is secured by a Lien permitted to exist under the Loan Documents, and (y) which prohibits the creation of any other Lien on only the property securing such Indebtedness as of the date such agreement was entered into; (ii) a Negative Pledge contained in an agreement relating to the sale of a Subsidiary or assets pending such sale, provided that in any such case the Negative Pledge applies only to the Subsidiary or the assets that are the subject of such sale; (iii) a Negative Pledge contained in any agreement that evidences Unsecured Indebtedness which contains restrictions on encumbering assets that are substantially similar to or not more restrictive than those restrictions contained in the Loan Documents; or (iv) to the extent constituting a Negative Pledge, a restriction on the direct or indirect transfer of Equity Interests in any Excluded Subsidiary, Unconsolidated Affiliate or any Subsidiary that is not a Wholly Owned Subsidiary contained in the organizational documents of such Person or any document, instrument or agreement evidencing Secured Indebtedness of such Person permitted to exist pursuant to this Agreement.

Section 9.3. Restrictions on Intercompany Transfers.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary (other than an Excluded Subsidiary) to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary (other than an Excluded Subsidiary) to: (a) pay dividends or make any other distribution on any of such Subsidiary’s capital stock or other equity interests owned by the Borrower or any Subsidiary of the Borrower; (b) pay any Indebtedness owed to the Borrower or any Subsidiary of the Borrower; (c) make loans or advances to the Borrower or any Subsidiary of the Borrower; or (d) transfer any of its property or assets to the Borrower or any Subsidiary of the Borrower; other than (i) with respect to clauses (a) through (d), those encumbrances or restrictions (A) contained in any Loan Document, (B) contained in any agreement that evidences Unsecured Indebtedness which contains restrictions and encumbrances that are substantially similar to or not more restrictive than those restrictions contained in the Loan Documents or (C) contained in organizational documents of, or other agreements governing an Investment in, any Excluded Subsidiary, Unconsolidated Affiliate or any Subsidiary that is not a Wholly Owned Subsidiary (but only to the extent applicable to the Equity Interest in such Subsidiary or Unconsolidated Affiliate (or any direct or indirect owner of such Equity Interest on account of such ownership) or the property or assets of such Subsidiary or Unconsolidated Affiliate), (ii) with respect to clause (d), (A) customary provisions restricting assignment of any agreement entered into by the Parent, the Borrower, any other Loan Party or any Subsidiary in the ordinary course of business or (B) transfer restrictions in any agreement relating to the sale of a Subsidiary or assets pending such sale where the transfer restriction applies only to the Subsidiary or the assets that are the subject of such sale or relating to Indebtedness secured by a Lien on assets that the Borrower or a Subsidiary may create, incur, assume, or permit or suffer to exist under Section 9.2.(a); provided that in the case of this clause (B), the restrictions apply only to the Subsidiary or the assets that are the subject of such sale or Lien, as the case may be.

Notwithstanding anything to the contrary in the foregoing, the restrictions in this Section shall not apply to any provision of any Guaranty entered into by the Borrower, any other Loan Party or any other Subsidiary relating to the Indebtedness of any Subsidiary permitted to be incurred hereunder, which provision subordinates any rights of Borrower, any other Loan Party or any other Subsidiary to payment from such Subsidiary to the payment in full of such Indebtedness.

Section 9.4. Merger, Consolidation, Sales of Assets and Other Arrangements.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to, (i) enter into any transaction of merger or consolidation; (ii) liquidate, windup or dissolve itself (or suffer any liquidation or dissolution); or (iii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter acquired; provided , however , that:

(a) any of the actions described in the immediately preceding clauses (i) through (iii) may be taken with respect to or by the Parent, any Subsidiary or any other Loan Party (other than the Borrower) so long as immediately prior to the taking of such action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence;

(b) the Parent, the Borrower, the other Subsidiaries and the other Loan Parties may sell, lease, sublease or otherwise dispose of their respective assets, as lessor or sublessor (as the case may be), in the ordinary course of their business;

(c) a Person may merge with and into the Borrower or the Parent so long as (i) the Borrower or the Parent, as applicable, is the survivor of such merger, (ii) immediately prior to such merger, and immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in existence; and (iii) the Borrower shall have given the Administrative Agent and the Lenders at least 10 Business Days’ prior written notice of such merger (except that such prior notice shall not be required in the case of the merger of a Subsidiary with and into the Borrower or the Parent);

(d) the Parent, the Borrower and each other Subsidiary may sell, transfer or dispose of assets among themselves; and

(e) the Parent, the Borrower and each other Subsidiary may sell, transfer or dispose of assets in any transaction or in connection with an event described in clause (c) of the definition of Permitted Liens.

Section 9.5. Plans.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to, permit any of its respective assets to become or be deemed to be Plan Assets. The Borrower shall not cause or permit to occur, and shall not permit any other member of the ERISA Group to cause or permit to occur, any ERISA Event if such ERISA Event could reasonably be expected to have a Material Adverse Effect.

Section 9.6. Fiscal Year.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or other Subsidiary to, change its fiscal year from that in effect as of the Agreement Date.

Section 9.7. Modifications of Organizational Documents.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to, amend, supplement, restate or otherwise modify or waive the application of any provisions of its certificate or articles of incorporation or formation, by-laws, operating agreement, declaration of trust, partnership agreement or other applicable organizational document if such amendment, supplement, restatement or other modification (a) could reasonably be expected to be adverse to the interest of the Lenders in any material respect or (b) could reasonably be expected to have a Material Adverse Effect.

Section 9.8. Transactions with Affiliates.

The Borrower shall not permit to exist or enter into, and shall not permit any other Loan Party, the Parent or any other Subsidiary to permit to exist or enter into, any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate, except (a) as set forth on Schedule 9.8., (b) transactions in the ordinary course of and pursuant to the reasonable business purposes of the Borrower, such other Loan Party, the Parent or such other Subsidiary and upon fair and reasonable terms which are no less favorable to the Borrower, such other Loan Party, the Parent or such other Subsidiary than would be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate, (c) in connection with the Reorganization and the Assumption, (d) Restricted Payments permitted pursuant to Section 9.1.(h), (e) Investments permitted pursuant to Section 9.1.(g) and (f) transactions by and among the Parent and its Subsidiaries not otherwise prohibited under the Loan Documents.

Section 9.9. Environmental Matters.

The Borrower shall not, and shall not permit any other Loan Party, the Parent, any other Subsidiary or any other Person to, use, generate, discharge, emit, manufacture, handle, process, store, release, transport, remove, dispose of or clean up any Hazardous Materials on, under or from the Properties in violation of any Environmental Law or in a manner that could lead to any environmental claim or pose a risk to human health, safety or the environment, in each case, that could reasonably be expected to have a Material Adverse Effect. Nothing in this Section shall impose any obligation or liability whatsoever on the Administrative Agent or any Lender.

Section 9.10. Derivatives Contracts.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to enter into or become obligated in respect of, Derivatives Contracts, other than Derivatives Contracts entered into by the Borrower, any such Loan Party, the Parent or any such Subsidiary in the ordinary course of business and which establish an effective hedge in respect of liabilities, commitments or assets held or reasonably anticipated by the Borrower, such other Loan Party, the Parent or such other Subsidiary.

Section 9.11. Use of Proceeds.

The Borrower shall not, and shall not permit any other Loan Party, the Parent or any other Subsidiary to, use any part of the proceeds of the Loans, or use any Letter of Credit, to (a) purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within the meaning of Regulation U or Regulation X of the Board of Governors of the Federal Reserve System) or (b) to extend credit to others for the purpose of purchasing or carrying any such margin stock. The Borrower shall not, and shall not permit any other Loan Party, the Parent or Subsidiary to, use any

proceeds of any Loan or any Letter of Credit directly or, to the knowledge of the Borrower, indirectly in any manner which would violate applicable Anti-Corruption Laws, Anti-Terrorism Laws or Sanctions.

ARTICLE X. DEFAULT

Section 10.1. Events of Default.

Each of the following shall constitute an Event of Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or pursuant to any judgment or order of any Governmental Authority:

(a) Default in Payment . The Borrower (i) shall fail to pay when due under this Agreement or any other Loan Document (whether upon demand, at maturity, by reason of acceleration or otherwise) the principal of any of the Loans or any Reimbursement Obligation or (ii) shall fail to pay when due any interest on any of the Loans or any of the other payment Obligations owing by the Borrower under this Agreement, any other Loan Document or any Fee Letter or any other Loan Party shall fail to pay when due any payment Obligation owing by such other Loan Party under any Loan Document to which it is a party, and, solely with respect to this clause (ii), such failure shall continue for a period of 5 Business Days.

(b) Default in Performance .

(i) Any Loan Party shall fail to perform or observe any term, covenant, condition or agreement on its part to be performed or observed and contained in Section 7.8., Section 7.15.(b), Section 8.4.(g), or Article IX.; or

(ii) Any Loan Party shall fail to perform or observe any term, covenant, condition or agreement contained in this Agreement or any other Loan Document to which it is a party and not otherwise mentioned in this Section, and in the case of this subsection (b)(ii) only, such failure shall continue for a period of 30 days after the earlier of (x) the date upon which a Responsible Officer obtains knowledge of such failure or (y) the date upon which the Borrower has received written notice of such failure from the Administrative Agent.

(c) Misrepresentations . Any written statement, representation or warranty made or deemed made by or on behalf of any Loan Party under this Agreement or under any other Loan Document, or any amendment hereto or thereto, or in any other writing or statement at any time furnished by, or at the direction of, any Loan Party to the Administrative Agent, any Issuing Bank or any Lender pursuant to this Agreement or any other Loan Document, shall at any time prove to have been incorrect or misleading, in light of the circumstances in which made or deemed made, in any material respect (or in any respect in the case of a representation or warranty qualified by materiality) when furnished or made or deemed made.

(d) Indebtedness Cross-Default .

(i) The Borrower, any other Loan Party, the Parent or any other Subsidiary shall fail to pay when due and payable (after giving effect to any applicable notice or cure period) the principal of, or interest on, any Indebtedness (other than the Loans and Reimbursement Obligations) having an aggregate outstanding principal amount (or, in the case of any Derivatives Contract, having a Derivatives Termination Value), in each case individually or in the aggregate with all other Indebtedness as to which such a failure exists, of $50,000,000 or more (or

$250,000,000 or more in the case of Nonrecourse Indebtedness of Excluded Subsidiaries other than the Jacksonville Indebtedness) (“Material Indebtedness”); or

(ii) (x) The maturity of any Material Indebtedness shall have been accelerated in accordance with the provisions of any indenture, contract or instrument evidencing, providing for the creation of or otherwise concerning such Material Indebtedness or (y) any Material Indebtedness shall have been required to be prepaid, repurchased, redeemed or defeased prior to the stated maturity thereof as a result of the occurrence of an event of default thereunder; or

(iii) Any other event shall have occurred and be continuing which permits any holder or holders of any Material Indebtedness, any trustee or agent acting on behalf of such holder or holders or any other Person, to accelerate the maturity of any such Material Indebtedness or require any such Material Indebtedness to be prepaid, repurchased, redeemed or defeased prior to its stated maturity and the holders of such Indebtedness have not waived their right to accelerate the maturity thereof or their right to require such Indebtedness to be prepaid, repurchased, redeemed or defeased.

(e) Voluntary Bankruptcy Proceeding . The Parent, the Borrower, any other Loan Party or any other Subsidiary (other than (x) an Excluded Subsidiary all Indebtedness of which is Nonrecourse Indebtedness, (y) a Guarantor that, together with all other Guarantors then subject to a bankruptcy proceeding or other proceeding or condition described in this subsection or the immediately following subsection, does not account for more than $100,000,000 of Total Asset Value, or (z) a Subsidiary (other than an Excluded Subsidiary all the Indebtedness of which is Nonrecourse Indebtedness) that, together with all other Subsidiaries then subject to a bankruptcy proceeding or other proceeding or condition described in this subsection or the immediately following subsection, does not account for more than $100,000,000 of Total Asset Value) shall: (i) commence a voluntary case under the Bankruptcy Code, or other federal bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to take advantage of any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; (iii) consent to, or fail to contest in a timely and appropriate manner, any petition filed against it in an involuntary case under such bankruptcy laws or other Applicable Laws or consent to any proceeding or action described in the immediately following subsection; (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign; (v) admit in writing its inability to pay its debts as they become due; (vi) make a general assignment for the benefit of creditors; (vii) make a conveyance fraudulent as to creditors under any Applicable Law; or (viii) take any corporate or partnership action for the purpose of effecting any of the foregoing.

(f) Involuntary Bankruptcy Proceeding . A case or other proceeding shall be commenced against the Parent, the Borrower, any other Loan Party or any other Subsidiary (other than (x) an Excluded Subsidiary all Indebtedness of which is Nonrecourse Indebtedness, (y) a Guarantor that, together with all other Guarantors then subject to a bankruptcy proceeding or other proceeding or condition described in this subsection or the immediately preceding subsection, does not account for more than $100,000,000 of Total Asset Value, or (z) a Subsidiary (other than an Excluded Subsidiary all the Indebtedness of which is Nonrecourse Indebtedness) that, together with all other Subsidiaries then subject to a bankruptcy proceeding or other proceeding or condition described in this subsection or the immediately preceding subsection, does not account for more than $100,000,000 of Total Asset Value) or any other Loan Party, in any court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code, or other federal bankruptcy laws (as now or hereafter in effect) or under any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator or

the like of such Person, or of all or any substantial part of the assets, domestic or foreign, of such Person, and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive calendar days, or an order granting the remedy or other relief requested in such case or proceeding against the Parent, the Borrower, such Subsidiary or such other Loan Party (including, but not limited to, an order for relief under such Bankruptcy Code or such other federal bankruptcy laws) shall be entered.

(g) Revocation of Loan Documents . Any Loan Party shall (or shall attempt to) disavow, revoke or terminate any Loan Document or any Fee Letter to which it is a party or shall otherwise challenge or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity or enforceability of any Loan Document or any Fee Letter or any Loan Document or any Fee Letter shall cease to be in full force and effect (except as a result of the express terms thereof).

(h) Judgment . A judgment or order for the payment of money or for an injunction or other non-monetary relief shall be entered against the Parent, the Borrower, any other Loan Party, or any other Subsidiary by any court or other tribunal and (i) such judgment or order shall continue for a period of thirty (30) days without being paid, stayed, vacated, dismissed or bonded pending appeal or otherwise satisfied through appropriate appellate proceedings and (ii) either (A) the amount of such judgment or order (x) for which insurance has not been acknowledged in writing by the applicable insurance carrier (or the amount as to which the insurer has denied liability) or (y) is not otherwise subject to indemnification or reimbursement on reasonable terms and conditions by Persons reasonably likely to honor such indemnification or reimbursement obligations, exceeds, individually or together with all other such judgments or orders entered against the Parent, the Borrower, any other Loan Party or any other Subsidiary $50,000,000 (or $250,000,000 in the case of judgments or orders in respect of Nonrecourse Indebtedness so long as such judgments or orders only attach to the assets securing such Nonrecourse Indebtedness) or (B) in the case of an injunction or other non-monetary relief, such injunction or judgment or order could reasonably be expected to have a Material Adverse Effect.

(i) Attachment . A warrant, writ of attachment, execution or similar process shall be issued against any property of the Parent, the Borrower, any other Loan Party or any other Subsidiary, which exceeds, individually or together with all other such warrants, writs, executions and processes, $50,000,000 in amount (or $250,000,000 in amount in the case of warrants, writs, executions and process in respect of Nonrecourse Indebtedness so long as such warrants, writs, executions and processes only attach to the assets securing such Nonrecourse Indebtedness), and such warrant, writ, execution or process shall not be paid, discharged, vacated, stayed or bonded for a period of thirty (30) days; provided, however, that if a bond has been issued in favor of the claimant or other Person obtaining such warrant, writ, execution or process, the issuer of such bond shall execute a waiver or subordination agreement in form and substance satisfactory to the Administrative Agent pursuant to which the issuer of such bond subordinates its right of reimbursement, contribution or subrogation to the Obligations and waives or subordinates any Lien it may have on the assets of the Borrower or any Subsidiary.

(j) ERISA .

(i) Any ERISA Event shall have occurred that results or could reasonably be expected to result in liability to any member of the ERISA Group aggregating in excess of $10,000,000; or

(ii) The “benefit obligation” of all Plans exceeds the “fair market value of plan assets” for such Plans by more than $10,000,000, all as determined, and with such terms defined, in accordance with FASB ASC 715.

(k) Loan Documents . An Event of Default (as defined therein) shall occur under any of the other Loan Documents.

(l) Change of Control .

(i) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 35.0% of the total voting power of the then outstanding voting stock of the Parent;

(ii) At any time during any period of 12 consecutive months, individuals who at the beginning of any such period constituted the Board of Trustees of the Parent (together with any new trustees whose appointment, election or nomination to the Board of Trustees was approved or recommended by a vote of the Trustees then in office who either were Trustees at the beginning of any such period or whose appointment, election or nomination was previously so approved or recommended) cease for any reason to constitute a majority of the Board of Trustees of the Parent then in office;

(iii) the Parent shall cease to own and control, directly or indirectly, more than 50.0% of the outstanding Equity Interests of the Borrower; or

(iv) the Parent or a Wholly Owned Subsidiary of the Parent shall cease to be the sole Trustee (as defined in the Declaration of Trust) of the Borrower or shall cease to have the sole and exclusive power to exercise all management and control over the Borrower.

Section 10.2. Remedies Upon Event of Default.

Upon the occurrence of an Event of Default the following provisions shall apply:

(a) Acceleration; Termination of Facilities .

(i) Automatic . Upon the occurrence of an Event of Default specified in Sections 10.1.(e) or 10.1.(f), (1)(A) the principal of, and all accrued interest on, the Loans and the Notes at the time outstanding, (B) an amount equal to the Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such Event of Default for deposit into the Letter of Credit Collateral Account and (C) all of the other Obligations, including, but not limited to, the other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes or any of the other Loan Documents shall become immediately and automatically due and payable without presentment, demand, protest, or other notice of any kind, all of which are expressly waived by the Borrower on behalf of itself and the other Loan Parties, and (2) the Commitments and the Swingline Commitment and the obligation of the Issuing Banks to issue Letters of Credit hereunder, shall all immediately and automatically terminate.

(ii) Optional . If any other Event of Default shall exist, the Administrative Agent may, and at the direction of the Requisite Lenders shall: (1) declare (A) the principal of, and accrued interest on, the Loans and the Notes at the time outstanding, (B) an amount equal to the Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such Event of Default for deposit into the Letter of Credit Collateral Account and (C) all of the other

Obligations, including, but not limited to, the other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes or any of the other Loan Documents to be forthwith due and payable, whereupon the same shall immediately become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by the Borrower on behalf of itself and the other Loan Parties, and (2) terminate the Commitments and the Swingline Commitment and the obligation of the Issuing Banks to issue Letters of Credit hereunder.

(b) Loan Documents . The Requisite Lenders may direct the Administrative Agent to, and the Administrative Agent if so directed shall, exercise any and all of its rights under any and all of the other Loan Documents.

(c) Applicable Law . The Requisite Lenders may direct the Administrative Agent to, and the Administrative Agent if so directed shall, exercise all other rights and remedies it may have under any Applicable Law.

(d) Appointment of Receiver . To the extent permitted by Applicable Law, the Administrative Agent and the Lenders shall be entitled to the appointment of a receiver for the assets and properties of the Borrower and its Subsidiaries, without notice of any kind whatsoever and without regard to the adequacy of any security for the Obligations or the solvency of any party bound for its payment, to take possession of all or any portion of the property and/or the business operations of the Borrower and its Subsidiaries and to exercise such power as the court shall confer upon such receiver.

(e) Specified Derivatives Contract Remedies . Notwithstanding any other provision of this Agreement or other Loan Document, each Specified Derivatives Provider shall have the right, with prompt notice to the Administrative Agent, but without the approval or consent of or other action by the Administrative Agent or the Lenders, and without limitation of other remedies available to such Specified Derivatives Provider under contract or Applicable Law, in each case, in accordance with the terms of the applicable Specified Derivatives Contract, to undertake any of the following: (a) to declare an event of default, termination event or other similar event under any Specified Derivatives Contract and to create an “Early Termination Date” (as defined therein) in respect thereof, (b) to determine net termination amounts in respect of any and all Specified Derivatives Contracts in accordance with the terms thereof, and to set off amounts among such contracts, (c) to set off or proceed against deposit account balances, securities account balances and other property and amounts held by such Specified Derivatives Provider as collateral, and (d) to prosecute any legal action against the Borrower, any Loan Party or other Subsidiary to enforce or collect net amounts owing to such Specified Derivatives Provider pursuant to any Specified Derivatives Contract.

Section 10.3. Remedies Upon Default.

Upon the occurrence of a Default specified in Section 10.1.(f), the Commitments, the Swingline Commitment and the obligation of the Issuing Banks to issue Letters of Credit shall immediately and automatically terminate.

Section 10.4. Marshaling; Payments Set Aside.

None of the Administrative Agent, any Issuing Bank, any Lender or any Specified Derivatives Provider shall be under any obligation to marshal any assets in favor of any Loan Party or any other party or against or in payment of any or all of the Obligations or the Specified Derivatives Obligations. To the extent that any Loan Party makes a payment or payments to the Administrative Agent, any Issuing Bank, any Lender or any Specified Derivatives Provider, or the Administrative Agent, any Issuing Bank, any

Lender or any Specified Derivatives Provider enforce their security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such recovery, the Obligations or Specified Derivatives Obligations, or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

Section 10.5. Allocation of Proceeds.

If an Event of Default exists, all payments received by the Administrative Agent (or any Lender as a result of its exercise of remedies permitted under Section 12.3.) under any of the Loan Documents in respect of any Obligations shall be applied in the following order and priority:

(a) to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such, the Issuing Banks in their capacity as such and the Swingline Lender in its capacity as such, ratably among the Administrative Agent, the Issuing Banks and Swingline Lender in proportion to the respective amounts described in this clause (a) payable to them;

(b) to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders and Issuing Banks under the Loan Documents, including attorney fees, ratably among the Lenders and Issuing Banks in proportion to the respective amounts described in this clause (b) payable to them;

(d) to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and Reimbursement Obligations, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause (d) payable to them;

(e) to payment of that portion of the Obligations constituting unpaid principal of the Swingline Loans;

(f) to payment of that portion of the Obligations constituting unpaid principal of the Loans, Reimbursement Obligations, other Letter of Credit Liabilities, ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause (f) payable to them; provided, however, to the extent that any amounts available for distribution pursuant to this clause are attributable to the issued but undrawn amount of an outstanding Letter of Credit, such amounts shall be paid to the Administrative Agent for deposit into the Letter of Credit Collateral Account; and

(g) the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Applicable Law.

Section 10.6. Letter of Credit Collateral Account.

(a) As collateral security for the prompt payment in full when due of all Letter of Credit Liabilities and the other Obligations, the Borrower hereby pledges and grants to the Administrative

Agent, for the ratable benefit of the Administrative Agent, the Issuing Banks and the Revolving Lenders as provided herein, a security interest in all of its right, title and interest in and to the Letter of Credit Collateral Account and the balances from time to time in the Letter of Credit Collateral Account (including the investments and reinvestments therein provided for below). The balances from time to time in the Letter of Credit Collateral Account shall not constitute payment of any Letter of Credit Liabilities until applied by the Issuing Banks as provided herein. Anything in this Agreement to the contrary notwithstanding, funds held in the Letter of Credit Collateral Account shall be subject to withdrawal only as provided in this Section.

(b) Amounts on deposit in the Letter of Credit Collateral Account shall be invested and reinvested by the Administrative Agent in such Cash Equivalents as the Administrative Agent shall determine in its sole discretion. All such investments and reinvestments shall be held in the name of and be under the sole dominion and control of the Administrative Agent for the ratable benefit of the Administrative Agent, the Issuing Banks and the Revolving Lenders; provided , that all earnings on such investments will be credited to and retained in the Letter of Credit Collateral Account. The Administrative Agent shall exercise reasonable care in the custody and preservation of any funds held in the Letter of Credit Collateral Account and shall be deemed to have exercised such care if such funds are accorded treatment substantially equivalent to that which the Administrative Agent accords other funds deposited with the Administrative Agent, it being understood that the Administrative Agent shall not have any responsibility for taking any necessary steps to preserve rights against any parties with respect to any funds held in the Letter of Credit Collateral Account.

(c) If a drawing pursuant to any Letter of Credit occurs on or prior to the expiration date of such Letter of Credit, the Borrower, the Issuing Banks and the Revolving Lenders authorize the Administrative Agent to use the monies deposited in the Letter of Credit Collateral Account to reimburse the Issuing Bank that issued such Letter of Credit for the payment made by such Issuing Bank to the beneficiary with respect to such drawing.

(d) If an Event of Default exists, the Administrative Agent may (and, if instructed by the Requisite Class Lenders of the Revolving Lenders, shall) in its (or their) discretion at any time and from time to time elect to liquidate any such investments and reinvestments and apply the proceeds thereof to the Obligations in accordance with Section 10.5. Notwithstanding the foregoing, the Administrative Agent shall not be required to liquidate and release any such amounts if such liquidation or release would result in the amount available in the Letter of Credit Collateral Account to be less than the Stated Amount of all Extended Letters of Credit that remain outstanding.

(e) So long as no Default or Event of Default exists, and to the extent amounts on deposit in or credited to the Letter of Credit Collateral Account exceed the aggregate amount of the Letter of Credit Liabilities then due and owing, the Administrative Agent shall, from time to time, at the request of the Borrower, deliver to the Borrower within 5 Business Days after the Administrative Agent’s receipt of such request from the Borrower, against receipt but without any recourse, warranty or representation whatsoever, such amount of the credit balances in the Letter of Credit Collateral Account as exceeds the aggregate amount of Letter of Credit Liabilities at such time. Upon the expiration, termination or cancellation of an Extended Letter of Credit for which the Lenders reimbursed (or funded participations in) a drawing deemed to have occurred under the fourth sentence of Section 2.4.(b) for deposit into the Letter of Credit Collateral Account but in respect of which the Lenders have not otherwise received payment for the amount so reimbursed or funded, the Administrative Agent shall promptly remit to the Lenders the amount so reimbursed or funded for such Extended Letter of Credit that remains in the Letter of Credit Collateral Account, pro rata in accordance with the respective unpaid reimbursements or funded participations of the Lenders in respect of such Extended Letter of Credit, against receipt but without any recourse, warranty or representation whatsoever. When all of the Obligations shall have been

indefeasibly paid in full and no Letters of Credit remain outstanding, the Administrative Agent shall deliver to the Borrower, against receipt but without any recourse, warranty or representation whatsoever, the balances remaining in the Letter of Credit Collateral Account.

(f) The Borrower shall pay to the Administrative Agent from time to time such fees as the Administrative Agent normally charges for similar services in connection with the Administrative Agent’s administration of the Letter of Credit Collateral Account and investments and reinvestments of funds therein.

Section 10.7. Performance by Administrative Agent.

If the Borrower or any other Loan Party shall fail to perform any covenant, duty or agreement contained in any of the Loan Documents, the Administrative Agent may, after notice to the Borrower, perform or attempt to perform such covenant, duty or agreement on behalf of the Borrower or such other Loan Party after the expiration of any cure or grace periods set forth herein. In such event, the Borrower shall, at the request of the Administrative Agent, promptly pay any amount reasonably expended by the Administrative Agent in such performance or attempted performance to the Administrative Agent, together with interest thereon at the applicable Post-Default Rate from the date of such expenditure until paid. Notwithstanding the foregoing, none of the Administrative Agent, the Issuing Banks or the Lenders shall have any liability or responsibility whatsoever for the performance of any obligation of the Borrower under this Agreement or any other Loan Document.

Section 10.8. Rights Cumulative.

(a) Generally . The rights and remedies of the Administrative Agent, the Issuing Banks, the Lenders and the Specified Derivatives Providers under this Agreement, each of the other Loan Documents, the Fee Letters and Specified Derivatives Contracts shall be cumulative and not exclusive of any rights or remedies which any of them may otherwise have under Applicable Law. In exercising their respective rights and remedies the Administrative Agent, the Issuing Banks, the Lenders and the Specified Derivatives Providers may be selective and no failure or delay by the Administrative Agent, any of the Issuing Banks, any of the Lenders or any of the Specified Derivatives Providers in exercising any right shall operate as a waiver of it, nor shall any single or partial exercise of any power or right preclude its other or further exercise or the exercise of any other power or right.

(b) Enforcement by Administrative Agent . Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Article X. for the benefit of all the Lenders and the Issuing Banks; provided that the foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (ii) an Issuing Bank or the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as an Issuing Bank or Swingline Lender, as the case may be) hereunder or under the other Loan Documents, (iii) any Specified Derivatives Provider from exercising the rights and remedies that inure to its benefit under any Specified Derivatives Contract, (iv) any Lender from exercising setoff rights in accordance with Section 12.3. (subject to the terms of Section 3.3.), or (v) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (x) the Requisite Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to

Article X. and (y) in addition to the matters set forth in clauses (ii), (iv) and (v) of the preceding proviso and subject to Section 3.3., any Lender may, with the consent of the Requisite Lenders, enforce any rights and remedies available to it and as authorized by the Requisite Lenders.

ARTICLE XI. THE ADMINISTRATIVE AGENT

Section 11.1. Appointment and Authorization.

Each Lender hereby irrevocably appoints and authorizes the Administrative Agent to take such action as contractual representative on such Lender’s behalf and to exercise such powers under this Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation of the foregoing, each Lender authorizes and directs the Administrative Agent to enter into the Loan Documents for the benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall be construed to deem the Administrative Agent a trustee or fiduciary for any Lender or to impose on the Administrative Agent duties or obligations other than those expressly provided for herein. Without limiting the generality of the foregoing, the use of the terms “Agent”, “Administrative Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, use of such terms is merely a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. The Administrative Agent shall deliver or otherwise make available to each Lender, promptly upon receipt thereof by the Administrative Agent, copies of each of the financial statements, certificates, notices and other documents delivered or otherwise made available to the Administrative Agent pursuant to Article VIII. that the Borrower is not otherwise required to deliver directly to the Lenders. The Administrative Agent will furnish to any Lender, upon the request of such Lender, a copy (or, where appropriate, an original) of any document, instrument, agreement, certificate or notice furnished to the Administrative Agent by the Borrower, any other Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan Document not already delivered or otherwise made available to such Lender pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of any of the Obligations), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other provision of this Agreement), and such instructions shall be binding upon all Lenders and all holders of any of the Obligations; provided, however, that, notwithstanding anything in this Agreement to the contrary, the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan Document or Applicable Law. Not in limitation of the foregoing, the Administrative Agent may exercise any right or remedy it or the Lenders may have under any Loan Document upon the occurrence of a Default or an Event of Default unless the Requisite Lenders have directed the Administrative Agent otherwise. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Requisite Lenders, or where applicable, all the Lenders.

Section 11.2. Administrative Agent as Lender.

The Lender acting as Administrative Agent shall have the same rights and powers as a Lender under this Agreement and any other Loan Document as any other Lender and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Wells Fargo in each case in its individual capacity. Wells Fargo and its Affiliates may each accept deposits from, maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures of, serve as financial advisor to, and generally engage in any kind of business with the Parent, the Borrower, any other Loan Party or any other Affiliate thereof as if it were any other bank and without any duty to account therefor to the Issuing Banks or the other Lenders. Further, the Administrative Agent and any Affiliate may accept fees and other consideration from the Borrower for services in connection with this Agreement, or otherwise without having to account for the same to the Issuing Banks or the other Lenders. The Issuing Banks and the Lenders acknowledge that, pursuant to such activities, Wells Fargo or its Affiliates may receive information regarding the Parent, the Borrower, other Loan Parties, other Subsidiaries and other Affiliates (including information that may be subject to confidentiality obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them.

Section 11.3. Approvals of Lenders.

All communications from the Administrative Agent to any Lender requesting such Lender’s determination, consent or approval (a) shall be given in the form of a written notice to such Lender, (b) shall be accompanied by a description of the matter or issue as to which such determination, consent or approval is requested, or shall advise such Lender where information, if any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or issue to be resolved and (c) shall include, if reasonably requested by such Lender and to the extent not previously provided to such Lender, written materials provided to the Administrative Agent by the Borrower in respect of the matter or issue to be resolved. Unless a Lender shall give written notice to the Administrative Agent that it specifically objects to the requested determination, consent or approval (together with a reasonable written explanation of the reasons behind such objection) within ten (10) Business Days (or such lesser or greater period as may be specifically required under the express terms of the Loan Documents) of receipt of such communication, such Lender shall be deemed to have conclusively approved such requested determination, consent or approval. The provisions of this Section shall not apply to any amendment, waiver or consent regarding any of the matters described in Section 12.6.(b).

Section 11.4. Notice of Events of Default.

The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or Event of Default unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing with reasonable specificity such Default or Event of Default and stating that such notice is a “notice of default.” If any Lender (excluding the Lender which is also serving as the Administrative Agent) becomes aware of any Default or Event of Default, it shall promptly send to the Administrative Agent such a “notice of default”; provided, a Lender’s failure to provide such a “notice of default” to the Administrative Agent shall not result in any liability of such Lender to any other party to any of the Loan Documents. Further, if the Administrative Agent receives such a “notice of default,” the Administrative Agent shall give prompt notice thereof to the Lenders.

Section 11.5. Administrative Agent’s Reliance.

Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by

it under or in connection with this Agreement or any other Loan Document, except for its or their own gross negligence or willful misconduct in connection with its duties expressly set forth herein or therein as determined by a court of competent jurisdiction in a final non-appealable judgment. Without limiting the generality of the foregoing, the Administrative Agent may consult with legal counsel (including its own counsel or counsel for the Parent, the Borrower or any other Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. Neither the Administrative Agent nor any of its Related Parties: (a) makes any warranty or representation to any Lender, any Issuing Bank or any other Person, or shall be responsible to any Lender, any Issuing Bank or any other Person for any statement, warranty or representation made or deemed made by the Parent, the Borrower, any other Loan Party or any other Person in or in connection with this Agreement or any other Loan Document; (b) shall have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of the Borrower or other Persons, or to inspect the property, books or records of the Borrower or any other Person; (c) shall be responsible to any Lender or any Issuing Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any other instrument or document furnished pursuant thereto or any collateral covered thereby or the perfection or priority of any Lien in favor of the Administrative Agent on behalf of the Lenders, the Issuing Banks and the Specified Derivatives Providers in any such collateral; (d) shall have any liability in respect of any recitals, statements, certifications, representations or warranties contained in any of the Loan Documents or any other document, instrument, agreement, certificate or statement delivered in connection therewith; and (e) shall incur any liability under or in respect of this Agreement or any other Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telephone, telecopy or electronic mail) believed by it to be genuine and signed, sent or given by the proper party or parties. The Administrative Agent may execute any of its duties under the Loan Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct in the selection of such agent or attorney-in-fact as determined by a court of competent jurisdiction in a final non-appealable judgment.

Section 11.6. Indemnification of Administrative Agent.

Each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with such Lender’s respective Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, reasonable out-of-pocket costs and expenses of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against the Administrative Agent (in its capacity as Administrative Agent but not as a Lender) in any way relating to or arising out of the Loan Documents, any transaction contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under the Loan Documents (collectively, “Indemnifiable Amounts”); provided, however, that no Lender shall be liable for any portion of such Indemnifiable Amounts to the extent resulting from the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment; provided , however , that no action taken in accordance with the directions of the Requisite Lenders (or all of the Lenders, if expressly required hereunder) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section. Without limiting the generality of the foregoing, each Lender agrees to reimburse the Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) promptly upon demand for its Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of any out-of-pocket expenses

(including the reasonable fees and expenses of the counsel to the Administrative Agent) incurred by the Administrative Agent in connection with the preparation, negotiation, execution, administration, or enforcement (whether through negotiations, legal proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of the parties under, the Loan Documents, any suit or action brought by the Administrative Agent to enforce the terms of the Loan Documents and/or collect any Obligations, any “lender liability” suit or claim brought against the Administrative Agent and/or the Lenders, and any claim or suit brought against the Administrative Agent and/or the Lenders arising under any Environmental Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders on the request of the Administrative Agent notwithstanding any claim or assertion that the Administrative Agent is not entitled to indemnification hereunder upon receipt of an undertaking by the Administrative Agent that the Administrative Agent will reimburse the Lenders if it is actually and finally determined by a court of competent jurisdiction that the Administrative Agent is not so entitled to indemnification. The agreements in this Section shall survive the payment of the Obligations and the termination of this Agreement. If the Borrower shall reimburse the Administrative Agent for any Indemnifiable Amount following payment by any Lender to the Administrative Agent in respect of such Indemnifiable Amount pursuant to this Section, the Administrative Agent shall share such reimbursement on a ratable basis with each Lender making any such payment.

Section 11.7. Lender Credit Decision, Etc.

Each of the Lenders and the Issuing Banks expressly acknowledges and agrees that neither the Administrative Agent nor any of its Related Parties has made any representations or warranties to such Issuing Bank or such Lender and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Parent, the Borrower, any other Loan Party or any other Subsidiary or Affiliate, shall be deemed to constitute any such representation or warranty by the Administrative Agent to any Issuing Bank or any Lender. Each of the Lenders and the Issuing Banks acknowledges that it has made its own credit and legal analysis and decision to enter into this Agreement and the transactions contemplated hereby, independently and without reliance upon the Administrative Agent, any other Lender or counsel to the Administrative Agent, or any of their respective Related Parties, and based on the financial statements of the Parent, the Borrower, the other Loan Parties, the other Subsidiaries and other Affiliates, and inquiries of such Persons, its independent due diligence of the business and affairs of the Parent, the Borrower, the other Loan Parties, the other Subsidiaries and other Persons, its review of the Loan Documents, the legal opinions required to be delivered to it hereunder, the advice of its own counsel and such other documents and information as it has deemed appropriate. Each of the Lenders and the Issuing Banks also acknowledges that it will, independently and without reliance upon the Administrative Agent, any other Lender or counsel to the Administrative Agent or any of their respective Related Parties, and based on such review, advice, documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under the Loan Documents. The Administrative Agent shall not be required to keep itself informed as to the performance or observance by the Borrower or any other Loan Party of the Loan Documents or any other document referred to or provided for therein or to inspect the properties or books of, or make any other investigation of, the Parent, the Borrower, any other Loan Party or any other Subsidiary. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative Agent under this Agreement or any of the other Loan Documents or furnished to the Administrative Agent for distribution to the Lenders and/or the Issuing Banks, the Administrative Agent shall have no duty or responsibility to provide any Lender or any Issuing Bank with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Parent, the Borrower, any other Loan Party or any other Affiliate thereof which may come into possession of the Administrative Agent or any of its Related Parties. Each of the Lenders and the Issuing Banks acknowledges that the Administrative Agent’s legal counsel in

connection with the transactions contemplated by this Agreement is only acting as counsel to the Administrative Agent and is not acting as counsel to any Lender or any Issuing Bank.

Section 11.8. Successor Administrative Agent.

The Administrative Agent may (a) resign at any time as Administrative Agent under the Loan Documents by giving written notice thereof to the Lenders and the Borrower or (b) be removed as administrative agent by all of the Lenders (other than the Lender then acting as Administrative Agent) upon 30 days’ prior written notice if the Administrative Agent (i) is found by a court of competent jurisdiction in a final, non-appealable judgment to have committed gross negligence or willful misconduct in the course of performing its duties hereunder or (ii) has become or is insolvent or has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment. Upon any such resignation or removal, the Requisite Lenders shall have the right to appoint a successor Administrative Agent which appointment shall, provided no Event of Default exists, be subject to the Borrower’s approval, which approval shall not be unreasonably withheld or delayed (except that the Borrower shall, in all events, be deemed to have approved each Lender and any of its Affiliates as a successor Administrative Agent). If no successor Administrative Agent shall have been so appointed in accordance with the immediately preceding sentence, and shall have accepted such appointment, within 30 days after (a) the resigning Administrative Agent’s giving of notice of resignation, or (b) the Lenders’ giving of notice of removal, then the resigning or removed Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be an Eligible Assignee; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no Lender or Eligible Assignee has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made to each Lender and each Issuing Bank directly, until such time as a successor Administrative Agent has been appointed as provided for above in this Section; provided, further that such Lenders and such Issuing Banks so acting directly shall be and be deemed to be protected by all indemnities and other provisions herein for the benefit and protection of the Administrative Agent as if each such Lender or Issuing Bank were itself the Administrative Agent. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the current Administrative Agent, and the current Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. Any resignation by an Administrative Agent shall also constitute the resignation as an Issuing Bank and as the Swingline Lender by the Lender then acting as Administrative Agent (the “Resigning Lender”). Upon the acceptance of a successor’s appointment as Administrative Agent hereunder (i) the Resigning Lender shall be discharged from all duties and obligations of an Issuing Bank and the Swingline Lender hereunder and under the other Loan Documents and (ii) the successor Issuing Bank shall issue letters of credit in substitution for all Letters of Credit issued by the Resigning Lender as Issuing Bank outstanding at the time of such succession (which letters of credit issued in substitutions shall be deemed to be Letters of Credit issued hereunder) or make other arrangements satisfactory to the Resigning Lender to effectively assume the obligations of the Resigning Lender with respect to such Letters of Credit. After any Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article XI. shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under the Loan Documents. Notwithstanding anything contained herein to the contrary, the Administrative Agent may assign its rights and duties under the Loan Documents to any of its Affiliates by giving the Borrower and each Lender prior written notice.

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Section 11.9. Titled Agents.

Each of the Lead Arrangers, the Syndication Agents and the Documentation Agent (each a “Titled Agent”) in each such respective capacity, assumes no responsibility or obligation hereunder, including, without limitation, for servicing, enforcement or collection of any of the Loans, nor any duties as an agent hereunder for the Lenders. The titles given to the Titled Agents are solely honorific and imply no fiduciary responsibility on the part of the Titled Agents to the Administrative Agent, any Lender, any Issuing Bank, the Borrower or any other Loan Party and the use of such titles does not impose on the Titled Agents any duties or obligations greater than those of any other Lender or entitle the Titled Agents to any rights other than those to which any other Lender is entitled.

ARTICLE XII. MISCELLANEOUS

Section 12.1. Notices.

Unless otherwise provided herein (including without limitation as provided in Section 8.5.), communications provided for hereunder shall be in writing and shall be mailed, telecopied, or delivered as follows:

If to the Borrower:

EQC Operating Trust

Two North Riverside Plaza, Suite 2100

Chicago, Illinois 60606

Attention: Chief Financial Officer

Telecopier: (312) 646-2899

Telephone: (312) 646-2839

with a copy to:

EQC Operating Trust

Two North Riverside Plaza, Suite 2100

Chicago, Illinois 60606

Attention: General Counsel

Telecopier: (312) 646-2899

Telephone: (312) 646-2850

and a copy to:

Kirkland & Ellis LLP

300 North LaSalle Street

Chicago, Illinois 60654

Attention: Daniel J. Perlman

Telecopier: (312) 862-2200

Telephone: (312) 862-6090

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If to the Administrative Agent:

Wells Fargo Bank, National Association

10 South Wacker Drive, 32 nd floor

Chicago, Illinois 60606

Attention: Winita Lau

Telecopier: (312) 269-4848

Telephone: (312) 269-4818

If to Wells Fargo, as an Issuing Bank:

Wells Fargo Bank, National Association

10 South Wacker Drive, 32 nd Floor

Chicago, Illinois 60606

Attention: Winita Lau

Telecopier: (312) 269-4848

Telephone: (312) 269-4818

If to JPMorgan Chase Bank, N.A., as an Issuing Bank:

JPMorgan Chase Bank, N.A.

10420 Highland Manor Drive, Fl 4

Tampa, FL 33610

Attn: James Alonzo

Telecopier: 856-294-5267

Telephone: 813-432-6339

If to Bank of America, N.A., as an Issuing Bank:

Bank of America, N.A.

Global Trade Operations

One Fleet Way, 2nd Floor

Mail Code PA6-580-02-30

Scranton, PA 18507

Telecopier: 1. 800.755.8743

Telephone: 1.800.370.7519 and choose Trade product opt. #1

If to any other Lender:

To such Lender’s address or telecopy number as set forth in the applicable Administrative Questionnaire

or, as to each party at such other address as shall be designated by such party in a written notice to the other parties delivered in compliance with this Section; provided, a Lender or an Issuing Bank shall only be required to give notice of any such other address to the Administrative Agent and the Borrower. All such notices and other communications shall be effective (i) if mailed, upon the first to occur of receipt or the expiration of three (3) days after the deposit in the United States Postal Service mail, postage prepaid and addressed to the address of the Borrower or the Administrative Agent, the Issuing Banks and Lenders at the addresses specified; (ii) if telecopied, when transmitted; (iii) if hand delivered or sent by overnight courier, when delivered; or (iv) if delivered in accordance with Section 8.5. to the extent applicable; provided, however, that, in the case of the immediately preceding clauses (i), (ii) and (iii), non-receipt of

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any communication as of the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication. Notwithstanding the immediately preceding sentence, all notices or communications to the Administrative Agent, any Issuing Bank or any Lender under Article II. shall be effective only when actually received. None of the Administrative Agent, any Issuing Bank or any Lender shall incur any liability to any Loan Party (nor shall the Administrative Agent incur any liability to the Issuing Banks or the Lenders) for acting upon any telephonic notice referred to in this Agreement which the Administrative Agent, such Issuing Bank or such Lender, as the case may be, believes in good faith to have been given by a Person authorized to deliver such notice or for otherwise acting in good faith hereunder. Failure of a Person designated to get a copy of a notice to receive such copy shall not affect the validity of notice properly given to another Person.

Section 12.2. Expenses.

The Borrower agrees within thirty (30) days following written demand (a) to pay or reimburse the Administrative Agent for all of its reasonable and documented out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of, and any amendment, supplement or modification to, any of the Loan Documents (including due diligence expense and reasonable travel expenses related to closing), and the consummation of the transactions contemplated hereby and thereby, including the reasonable fees and disbursements of counsel to the Administrative Agent and all costs and expenses of the Administrative Agent in connection with the use of IntraLinks, SyndTrak or other similar information transmission systems in connection with the Loan Documents and the reasonable and documented fees and disbursements of counsel to the Administrative Agent relating to all such activities, (b) to pay or reimburse the Administrative Agent, the Issuing Banks and the Lenders for all their reasonable and documented costs and expenses incurred in connection with the enforcement or preservation of any rights under the Loan Documents and the Fee Letters, including the reasonable and documented fees and disbursements of their respective counsel (in any case, limited to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to the Administrative Agent, the Issuing Banks and the Lenders (the “Lender Parties”) and, if reasonably necessary, a single local counsel for the Lender Parties in each relevant jurisdiction and with respect to each relevant specialty, and in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Lender Parties similarly situated) and any payments in indemnification or otherwise payable by the Lenders to the Administrative Agent pursuant to the Loan Documents, (c) to pay, and indemnify and hold harmless the Administrative Agent, the Issuing Banks and the Lenders from, any and all recording and filing fees, if any, which may be payable or determined to be payable in connection with the execution and delivery of any of the Loan Documents, or consummation of any amendment, supplement or modification of, or any waiver or consent under or in respect of, any Loan Document and (d) to the extent not already covered by any of the preceding subsections, to pay or reimburse the fees and disbursements of counsel to the Administrative Agent, any Issuing Bank and any Lender incurred in connection with the representation of the Administrative Agent, such Issuing Bank or such Lender in any matter relating to or arising out of any bankruptcy or other proceeding of the type described in Sections 10.1.(e) or 10.1.(f), including, without limitation (i) any motion for relief from any stay or similar order, (ii) the negotiation, preparation, execution and delivery of any document relating to the Obligations and (iii) the negotiation and preparation of any debtor-in-possession financing or any plan of reorganization of the Borrower or any other Loan Party, whether proposed by the Borrower, such Loan Party, the Lenders or any other Person, and whether such fees and expenses are incurred prior to, during or after the commencement of such proceeding or the confirmation or conclusion of any such proceeding. If the Borrower shall fail to pay any amounts required to be paid by it pursuant to this Section, the Administrative Agent and/or the Lenders may pay such amounts on behalf of the Borrower and such amounts shall be deemed to be Obligations owing hereunder.

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Section 12.3. Setoff.

Subject to Section 3.3. and in addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, the Borrower hereby authorizes the Administrative Agent, each Issuing Bank, each Lender, each Affiliate of the Administrative Agent, any Issuing Bank or any Lender, and each Participant, at any time or from time to time while an Event of Default exists, without notice to the Borrower or to any other Person, any such notice being hereby expressly waived, but in the case of an Issuing Bank, a Lender, an Affiliate of an Issuing Bank or a Lender, or a Participant, subject to receipt of the prior written consent of the Requisite Lenders exercised in their sole discretion, to set off and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by the Administrative Agent, such Issuing Bank, such Lender, any Affiliate of the Administrative Agent, such Issuing Bank or such Lender, or such Participant, to or for the credit or the account of the Borrower against and on account of any of the Obligations, irrespective of whether or not any or all of the Loans and all other Obligations have been declared to be, or have otherwise become, due and payable as permitted by Section 10.2., and although such Obligations shall be contingent or unmatured. Notwithstanding anything to the contrary in this Section, if any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 3.9. and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks and the Lenders and (y) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Promptly following any such set-off the Administrative Agent shall notify the Borrower thereof and of the application of such set-off, provided that the failure to give such notice shall not invalidate such set-off.

Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.

(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT, ANY OF THE ISSUING BANKS OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY FEE LETTER OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT, ANY OF THE ISSUING BANKS OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.

(b) THE BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, ANY ISSUING BANK, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW

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YORK SITTING IN NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.

(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.

Section 12.5. Successors and Assigns.

(a) Successors and Assigns Generally . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby; provided that (x) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of the Administrative Agent, each Issuing Bank and each Lender, and (y) no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of the immediately following subsection (b), (ii) by way of participation in accordance with the provisions of the immediately following subsection (d) or (iii) by way of pledge or assignment of a security interest subject to the restrictions of the immediately following subsection (e) (and, subject to the last sentence of the immediately following subsection (b), any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in the immediately following subsection (d) and, to the extent expressly contemplated hereby, the Related Parties of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders . Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of

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its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) Minimum Amounts .

(A) in the case of an assignment of the entire remaining amount of an assigning Revolving Lender’s Revolving Commitment and/or the Loans at the time owing to it, contemporaneous assignments to related Approved Funds that equal at least the amount specified in the immediately following clause (B) in the aggregate, an assignment of the entire remaining amount of an assigning Term Loan Lender’s Term Loans at the time owing to it, or an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in the immediately preceding subsection (A), the aggregate amount of a Class of Commitments (which for this purpose includes Loans outstanding thereunder) or, if the applicable Class of Commitments is not then in effect, the principal outstanding balance of the applicable Class of Loans of the assigning Lender subject to each such assignment, (in each case, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000 in the case of any assignment of a Commitment or a Loan, unless each of the Administrative Agent and, so long as no Default or Event of Default shall exist, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that if, after giving effect to such assignment, the amount of the Commitment of the applicable Class held by such assigning Lender or the outstanding principal balance of the Loans of the applicable Class of such assigning Lender, as applicable, would be less than $5,000,000, then such assigning Lender shall assign the entire amount of such Commitment and such Loans at the time owing to it; provided, further, that, notwithstanding the foregoing, a Term Loan Lender holding a particular Class of Term Loans may assign the entire remaining amount of such Class of Term Loans and shall not as a consequence of such assignment be required to assign any other Loan or Commitment.

(ii) Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations with respect to separate Classes of Loans and Commitments on a non-rata basis.

(iii) Required Consents . No consent shall be required for any assignment except to the extent required by clause (i)(B) of this subsection (b) and, in addition:

(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default shall exist at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof;

(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (x) a

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Revolving Commitment if such assignment is to a Person that is not already a Lender with a Revolving Commitment, an Affiliate of such a Lender or an Approved Fund with respect to such a Lender or (y) a Term Loan to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund; and

(C) the consent of the Swingline Lender and the Issuing Banks (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of a Revolving Commitment.

(iv) Assignment and Assumption; Notes . The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $4,500 for each assignment (which fee the Administrative Agent may, in its sole discretion, elect to waive), and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. If requested by the transferor Lender or the assignee, upon the consummation of any assignment, the transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so that new Notes are issued to the assignee and such transferor Lender, as appropriate.

(v) No Assignment to Certain Persons . No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or to any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).

(vi) No Assignment to Natural Persons . No such assignment shall be made to a natural person.

(vii) Certain Additional Payments . In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Revolving Loans and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to the immediately following subsection (c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment

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and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.10., 4.1., 4.4., 12.2. and 12.9. and the other provisions of this Agreement and the other Loan Documents as provided in Section 12.10. with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with the immediately following subsection (d).

(c) Register . The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Principal Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, any Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice. It is the intent of the parties to this Agreement that the Loans and Commitments be in registered form within the meanings of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (and any successor provisions).

(d) Participations . Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, any Lender or the Issuing Banks, sell participations to any Person (other than a natural Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to (w) increase any Commitment of such Lender, (x) extend the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the rate at which interest is payable thereon or (z) release any Guarantor from its Obligations under the Guaranty except as contemplated by Section 7.13.(b), in each case, as applicable to that portion of such Lender’s rights and/or obligations that are subject to the participation. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.10., 4.1., 4.4. (subject to the requirements and limitations therein, including the requirements under Section 3.10.(g) (it being understood that the documentation required under Section 3.10.(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 4.6. as if it were an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 4.1. or 3.10., with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Regulatory Change that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and

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expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 4.6. with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.3. as though it were a Lender; provided that such Participant agrees to be subject to Section 3.3. as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(f) No Registration . Each Lender agrees that, without the prior written consent of the Borrower and the Administrative Agent, it will not make any assignment hereunder in any manner or under any circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of the United States of America or of any other jurisdiction.

(g) Designated Lenders . Any Revolving Lender (each, a “Designating Lender”) may at any time while the Borrower has been assigned an Investment Grade Rating from at least one Rating Agency designate one Designated Lender to fund Bid Rate Loans on behalf of such Designating Lender subject to the terms of this subsection, and the provisions in the immediately preceding subsections (b) and (d) shall not apply to such designation. No Lender may designate more than one Designated Lender. The parties to each such designation shall execute and deliver to the Administrative Agent for its acceptance a Designation Agreement. Upon such receipt of an appropriately completed Designation Agreement executed by a Designating Lender and a designee representing that it is a Designated Lender, the Administrative Agent will accept such Designation Agreement and give prompt notice thereof to the Borrower, whereupon (i) the Borrower shall execute and deliver to the Designating Lender a Bid Rate Note payable to the order of the Designated Lender, (ii) from and after the effective date specified in the Designation Agreement, the Designated Lender shall become a party to this Agreement with a right to make Bid Rate Loans on behalf of its Designating Lender pursuant to Section 2.3. after the Borrower has accepted a Bid Rate Loan (or portion thereof) of the Designating Lender, and (iii) the Designated Lender shall not be required to make payments with respect to any obligations in this Agreement except to the extent of excess cash flow of such Designated Lender which is not otherwise required to repay obligations of such Designated Lender which are then due and payable; provided, however, that regardless of such designation and assumption by the Designated Lender, the Designating Lender shall be and remain obligated to the Borrower, the Administrative Agent and the Lenders for each and every of the obligations of the Designating Lender and its related Designated Lender with respect to this Agreement, including, without limitation, any indemnification obligations under Section 11.6. and any sums otherwise payable

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to the Borrower by the Designated Lender. Each Designating Lender shall serve as the agent of the Designated Lender and shall on behalf of, and to the exclusion of, the Designated Lender: (i) receive any and all payments made for the benefit of the Designated Lender and (ii) give and receive all communications and notices and take all actions hereunder, including, without limitation, votes, approvals, waivers, consents and amendments under or relating to this Agreement and the other Loan Documents. Any such notice, communication, vote, approval, waiver, consent or amendment shall be signed by the Designating Lender as agent for the Designated Lender and shall not be signed by the Designated Lender on its own behalf and shall be binding on the Designated Lender to the same extent as if signed by the Designated Lender on its own behalf. The Borrower, the Administrative Agent and the Lenders may rely thereon without any requirement that the Designated Lender sign or acknowledge the same. No Designated Lender may assign or transfer all or any portion of its interest hereunder or under any other Loan Document, other than assignments to the Designating Lender which originally designated such Designated Lender. The Borrower, the Lenders and the Administrative Agent each hereby agrees that it will not institute against any Designated Lender or join any other Person in instituting against any Designated Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any federal or state bankruptcy or similar law, until the later to occur of (x) one year and one day after the payment in full of the latest maturing commercial paper note issued by such Designated Lender and (y) the Revolving Termination Date. In connection with any such designation, the Designating Lender shall pay to the Administrative Agent an administrative fee for processing such designation in the amount of $3,000.

(h) USA Patriot Act Notice; Compliance . In order for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, prior to any Lender that is organized under the laws of a jurisdiction outside of the United States of America becoming a party hereto, the Administrative Agent may request, and such Lender shall provide to the Administrative Agent, its name, address, tax identification number and/or such other identification information as shall be necessary for the Administrative Agent to comply with federal law.

Section 12.6. Amendments and Waivers.

(a) Generally . Except as otherwise expressly provided in this Agreement, (i) any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given, (ii) any term of this Agreement or of any other Loan Document may be amended, (iii) the performance or observance by the Borrower, any other Loan Party or any other Subsidiary of any terms of this Agreement or such other Loan Document may be waived, and (iv) the continuance of any Default or Event of Default may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Requisite Lenders (or the Administrative Agent at the written direction of the Requisite Lenders), and, in the case of an amendment to any Loan Document, the written consent of each Loan Party which is party thereto. Subject to the immediately following subsection (b), any term of this Agreement or of any other Loan Document relating to the rights or obligations of the Lenders of a particular Class, and not Lenders of any other Class, may be amended, and the performance or observance by the Borrower or any other Loan Party or any Subsidiary of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the written consent of the Requisite Class Lenders for such Class of Lenders (and, in the case of an amendment to any Loan Document, the written consent of each Loan Party which is a party thereto). Notwithstanding anything to the contrary contained in this Section, a Fee Letter may only be amended, and the performance or observance by any Loan Party thereunder may only be waived, in a writing executed by the parties thereto.

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(b) Additional Lender Consents . In addition to the foregoing requirements, no amendment, waiver or consent shall:

(i) increase (or reinstate) a Commitment of a Lender or subject a Lender to any additional obligations without the written consent of such Lender;

(ii) reduce the principal of, or interest that has accrued or the rates of interest that will be charged on the outstanding principal amount of, any Loans or other Obligations without the written consent of each Lender directly affected thereby; provided, however, only the written consent of the Requisite Lenders shall be required for the waiver of interest payable at the Post-Default Rate, retraction of the imposition of interest at the Post-Default Rate and amendment of the definition of “Post-Default Rate”;

(iii) reduce the amount of any Fees payable to a Lender without the written consent of such Lender;

(iv) modify the definitions of “Revolving Termination Date” or clause (a) of the definition of “Termination Date” (except, in each case, in accordance with Section 2.14.), or extend the expiration date of any Letter of Credit beyond the Revolving Termination Date, in each case, without the written consent of each Revolving Lender directly and adversely affected thereby;

(v) modify the definition of “Termination Date” (except as set forth in clause (iv) above), otherwise postpone any date fixed for, or forgive, any payment of principal of, or interest on, any Loans or for the payment of Fees or any other Obligations owing to the Lenders, in each case, without the written consent of each Lender directly and adversely affected thereby;

(vi) while any Term Loans remain outstanding, amend, modify or waive (A) Section 5.2. or any other provision of this Agreement if the effect of such amendment, modification or waiver is to require the Revolving Lenders to make Revolving Loans or acquire participations in Letters of Credit or Swingline Loans when such Lenders would not otherwise be required to do so, (B) the amount of the Swingline Commitment or (C) the L/C Commitment Amount, in each case, without the prior written consent of the Requisite Class Lenders of the Revolving Lenders;

(vii) modify the definition of “Revolving Commitment Percentage” without the written consent of each Revolving Lender;

(viii) modify the definition of “Pro Rata Share” or amend or otherwise modify the provisions of Section 3.2. without the written consent of each Lender;

(ix) amend this Section, amend the definitions of the terms used in this Agreement or the other Loan Documents insofar as such definitions affect the substance of this Section, modify the definition of the term “Requisite Lenders” or (except as otherwise provided in the immediately following clause (x)), modify in any other manner the number or percentage of the Lenders required to make any determinations or waive any rights hereunder or to modify any provision hereof without the written consent of each Lender;

(x) modify the definition of the term “Requisite Class Lenders” as it relates to a Class of Lenders, or modify in any other manner the number or percentage of a Class of Lenders required to make any determinations or waive any rights hereunder or to modify any provision

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hereof, in each case, solely with respect to such Class of Lenders, without the written consent of each Lender in such Class;

(xi) release any Guarantor from its obligations under the Guaranty (except as contemplated by Section 7.13.(b)) without the written consent of each Lender; or

(xii) amend, or waive the Borrower’s compliance with, Section 2.16. without the written consent of each Revolving Lender.

(c) Amendment of Administrative Agent’s Duties, Etc . No amendment, waiver or consent unless in writing and signed by the Administrative Agent, in addition to the Lenders required hereinabove to take such action, shall affect the rights or duties of the Administrative Agent under this Agreement or any of the other Loan Documents. Any amendment, waiver or consent relating to Section 2.5. or the obligations of the Swingline Lender under this Agreement or any other Loan Document shall, in addition to the Lenders required hereinabove to take such action, require the written consent of the Swingline Lender. Any amendment, waiver or consent relating to Section 2.4. or the obligations of an Issuing Bank under this Agreement or any other Loan Document shall, in addition to the Lenders required hereinabove to take such action, require the written consent of such Issuing Bank. Any amendment, waiver or consent with respect to any Loan Document that (i) diminishes the rights of a Specified Derivatives Provider in a manner or to an extent dissimilar to that affecting the Lenders or (ii) increases the liabilities or obligations of a Specified Derivatives Provider shall, in addition to the Lenders required hereinabove to take such action, require the consent of the Lender that is (or having an Affiliate that is) such Specified Derivatives Provider. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitments of any Defaulting Lender may not be increased, reinstated or extended without the written consent of such Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the written consent of such Defaulting Lender. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon and any amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose set forth therein. No course of dealing or delay or omission on the part of the Administrative Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Any Event of Default occurring hereunder shall continue to exist until such time as such Event of Default is waived in writing in accordance with the terms of this Section, notwithstanding any attempted cure or other action by the Borrower, any other Loan Party or any other Person subsequent to the occurrence of such Event of Default. Except as otherwise explicitly provided for herein or in any other Loan Document, no notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances.

(d) Technical Amendments . Notwithstanding anything to the contrary in this Section 12.6., if the Administrative Agent and the Borrower have jointly identified an ambiguity, omission, mistake or defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the Administrative Agent and the Borrower shall be permitted to amend such provision or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interests of the Lenders and the Issuing Banks. Any such amendment shall become effective without any further action or consent of any of other party to this Agreement.

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Section 12.7. Nonliability of Administrative Agent and Lenders.

The relationship between the Borrower, on the one hand, and the Lenders, the Issuing Banks and the Administrative Agent, on the other hand, shall be solely that of borrower and lender. None of the Administrative Agent, any Issuing Bank or any Lender shall have any fiduciary responsibilities to the Borrower and no provision in this Agreement or in any of the other Loan Documents, and no course of dealing between or among any of the parties hereto, shall be deemed to create any fiduciary duty owing by the Administrative Agent, any Issuing Bank or any Lender to any Lender, the Borrower, any Subsidiary or any other Loan Party. None of the Administrative Agent, any Issuing Bank or any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower’s business or operations.

Section 12.8. Confidentiality.

The Administrative Agent, each Issuing Bank and each Lender shall maintain the confidentiality of all Information (as defined below) but in any event may make disclosure: (a) to its Affiliates and to its and its Affiliates’ other respective Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any actual or proposed assignee, Participant or other transferee in connection with a potential transfer of any Commitment or Loan or participation therein as permitted hereunder, or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations; (c) as required or requested by any Governmental Authority or representative thereof or pursuant to legal process or in connection with any legal proceedings, or as otherwise required by Applicable Law; (d) to the Administrative Agent’s, such Issuing Bank’s or such Lender’s independent auditors and other professional advisors (provided they shall be notified of the confidential nature of the information); (e) in connection with the exercise of any remedies under any Loan Document (or any Specified Derivatives Contract) or any action or proceeding relating to any Loan Document (or any Specified Derivatives Contract) or the enforcement of rights hereunder or thereunder; (f) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section actually known by the Administrative Agent, such Issuing Bank or such Lender to be a breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank, any Lender or any Affiliate of the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower or any Affiliate of the Borrower; (g) to the extent requested by, or required to be disclosed to, any nationally recognized rating agency or regulatory or similar authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners) having or purporting to have jurisdiction over it; (h) to bank trade publications, such information to consist of deal terms and other information customarily found in such publications; (i) to any other party hereto; and (j) with the consent of the Borrower. Notwithstanding the foregoing, the Administrative Agent, each Issuing Bank and each Lender may disclose any such confidential information, without notice to the Borrower or any other Loan Party, to Governmental Authorities in connection with any regulatory examination of the Administrative Agent, such Issuing Bank or such Lender or in accordance with the regulatory compliance policy of the Administrative Agent, such Issuing Bank or such Lender. As used in this Section, the term “Information” means all information received from the Parent, the Borrower, any other Loan Party, any other Subsidiary or Affiliate relating to the Parent, any Loan Party or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by the Parent, the Borrower, any other Loan Party, any other Subsidiary or any Affiliate, provided that, in the case of any such information received from the Parent, the Borrower, any other Loan Party, any other Subsidiary or any Affiliate after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as

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provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Section 12.9. Indemnification.

(a) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Issuing Bank, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnified Party”) against, and hold each Indemnified Party harmless from, and shall pay or reimburse any such Indemnified Party for, any and all losses, claims (including without limitation, Environmental Claims), damages, liabilities and related expenses (including without limitation, the fees, charges and disbursements of any counsel for any Indemnified Party (limited, however, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnified Parties (taken as a whole) and, if reasonably necessary, a single local counsel for all Indemnified Parties (taken as a whole) in each relevant jurisdiction and with respect to each relevant specialty, and in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Parties similarly situated and taken as a whole)), incurred by any Indemnified Party or asserted against any Indemnified Party by any Person (including the Parent, the Borrower, any other Loan Party or any other Subsidiary) other than such Indemnified Party and its Related Parties, arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit issued by such Issuing Bank if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Parent, the Borrower, any other Loan Party or any other Subsidiary, or any Environmental Claim related in any way to the Parent, the Borrower, any other Loan Party or any other Subsidiary, (iv) any actual or prospective claim, litigation, investigation or proceeding (an “Indemnity Proceeding”) relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, any other Loan Party or any other Subsidiary, and regardless of whether any Indemnified Party is a party thereto, or (v) any claim (including without limitation, any Environmental Claims), investigation, litigation or other proceeding (whether or not the Administrative Agent, any Issuing Bank or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby, including without limitation, reasonable attorneys and consultant’s fees; provided, however, that such indemnity shall not, as to any Indemnified Party, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnified Party or a material breach in bad faith of this Agreement by such Indemnified Party or (y) arise out of, or in connection with, any proceeding that does not involve an act or omission by the Parent, the Borrower, any Loan Party or any of their respective Affiliates and that is brought by an Indemnified Party against another Indemnified Party (other than claims, litigation, investigations or proceedings brought against Wells Fargo in its capacity as Administrative Agent or against any of the financial institutions referred to in the first paragraph of this Agreement in their respective capacities as bookrunners, syndication agents, arrangers, documentation agents or any other similar roles or capacities in respect of this Agreement).

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(b) If and to the extent that the obligations of the Borrower under this Section are unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under Applicable Law.

(c) The Borrower’s obligations under this Section shall survive any termination of this Agreement and the other Loan Documents and the payment in full in cash of the Obligations, and are in addition to, and not in substitution of, any of the other obligations set forth in this Agreement or any other Loan Document to which it is a party.

References in this Section 12.9. to “Lender” or “Lenders” shall be deemed to include such Persons (and their Affiliates) in their capacity as Specified Derivatives Providers.

Section 12.10. Termination; Survival.

This Agreement shall terminate at such time as (a) all of the Commitments have been terminated, (b) all Letters of Credit have terminated or expired or been canceled (other than Extended Letters of Credit in respect of which the Borrower has satisfied the requirements to provide Cash Collateral as required in Section 2.4.(b)), (c) none of the Lenders is obligated any longer under this Agreement to make any Loans and none of the Issuing Banks is obligated any longer under this Agreement to issue Letters of Credit and (d) all Obligations (other than obligations which survive as provided in the following sentence) have been paid and satisfied in full. The indemnities to which the Administrative Agent, the Issuing Banks and the Lenders are entitled under the provisions of Sections 3.10., 4.1., 4.4., 11.6., 12.2. and 12.9. and any other provision of this Agreement and the other Loan Documents, and the provisions of Section 12.4., shall continue in full force and effect and shall protect the Administrative Agent, the Issuing Banks and the Lenders (i) notwithstanding any termination of this Agreement, or of the other Loan Documents, against events arising after such termination as well as before and (ii) at all times after any such party ceases to be a party to this Agreement with respect to all matters and events existing on or prior to the date such party ceased to be a party to this Agreement.

Section 12.11. Severability of Provisions.

If any provision of this Agreement or the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be deemed severed from the Loan Documents, and the validity, legality and enforceability of the remaining provisions shall remain in full force as though the invalid, illegal, or unenforceable provision had never been part of the Loan Documents.

Section 12.12. GOVERNING LAW.

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.

Section 12.13. Counterparts.

To facilitate execution, this Agreement and any amendments, waivers, consents or supplements may be executed in any number of counterparts as may be convenient or required (which may be effectively delivered by facsimile, in portable document format (“PDF”) or other similar electronic means). It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or

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account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.

Section 12.14. Obligations with Respect to Parent, Loan Parties and Subsidiaries.

The obligations of the Borrower to direct or prohibit the taking of certain actions by the Parent, the other Loan Parties and Subsidiaries as specified herein shall be absolute and not subject to any defense the Borrower may have that the Borrower does not control the Parent, such Loan Parties or Subsidiaries.

Section 12.15. Independence of Covenants.

All covenants hereunder shall be given in any jurisdiction independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.

Section 12.16. Limitation of Liability.

None of the Administrative Agent, any Issuing Bank, any Lender, or any of their respective Related Parties shall have any liability with respect to, and the Borrower hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, consequential or punitive damages suffered or incurred by the Borrower in connection with, arising out of, or in any way related to, this Agreement, any of the other Loan Documents or any of the transactions contemplated by this Agreement or any of the other Loan Documents.

Section 12.17. Entire Agreement.

This Agreement, the Notes, the other Loan Documents and the Fee Letters embody the final, entire agreement among the parties hereto and supersede any and all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof and thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto. To the extent any term of this Agreement is inconsistent with a term of any other Loan Document to which the parties of this Agreement are party, the term of this Agreement shall control to the extent of such inconsistency. There are no oral agreements among the parties hereto.

Section 12.18. Construction.

The Administrative Agent, each Issuing Bank, the Borrower and each Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other Loan Documents shall be construed as if jointly drafted by the Administrative Agent, each Issuing Bank, the Borrower and each Lender.

Section 12.19. Headings.

The paragraph and section headings in this Agreement are provided for convenience of reference only and shall not affect its construction or interpretation.

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Section 12.20. LIABILITY OF TRUSTEES, ETC.

THE PARTIES HERETO ACKNOWLEDGE AND AGREE AS FOLLOWS:

THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING COMMONWEALTH REIT, DATED JULY 1, 1994, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF COMMONWEALTH REIT SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, COMMONWEALTH REIT. ALL PERSONS DEALING WITH COMMONWEALTH REIT IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF COMMONWEALTH REIT FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.

Section 12.21. Down REIT Formation.

The Borrower may designate one or more of its Subsidiaries as a “Down REIT” so long as (a) the applicable Subsidiary meets the requirements of clauses (a) and (b) of the definition of the term “Down REIT”, (b) the Borrower shall have notified the Administrative Agent in writing of such designation at least 10 Business Days prior to the effectiveness of such designation and (c) no later than the proposed effective date of such designation, the Borrower shall have delivered to the Administrative Agent (i) an Accession Agreement (or if the Guaranty is not then in effect, the Guaranty) executed by such Subsidiary and (ii) the items that would have been delivered under (iii) through (vii), and (xiii) of Section 5.1.(a) and Section 5.1.(b) if such Subsidiary had been a Loan Party on the Agreement Date. The Borrower shall notify the Administrative Agent in writing promptly, but in any event within one (1) Business Day, if a Subsidiary designated as a “Down REIT” ceases to meet all the requirements of the definition of the term “Down REIT”.

Section 12.22. Effect on Existing Credit Agreement.

(a) Existing Credit Agreement . Upon satisfaction of the conditions precedent set forth in Section 5.1., this Agreement shall exclusively control and govern the mutual rights and obligations of the parties hereto with respect to the Existing Credit Agreement, and the Existing Credit Agreement shall be superseded by this Agreement in all respects, on a prospective basis only.

(b) NO NOVATION . THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS OWING UNDER AND IN CONNECTION WITH, THE EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT INTEND THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER UNDER OR IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT AGREEMENT).

Section 12.23. Assumption by Borrower; Release of Parent.

Upon and subject to satisfaction of the conditions set forth in Section 5.1., (a) the Parent shall be deemed to have assigned to the Borrower in full all of the Parent’s rights and benefits under the Existing Credit Agreement and the other Loan Documents (as defined in the Existing Credit Agreement) to which the Parent is a party, (b) the Borrower shall be deemed to have unconditionally, absolutely and

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irrevocably assumed in full all of the Parent’s obligations and liabilities (including without limitation, all Obligations (as defined in the Existing Credit Agreement) of the Parent), and agrees to perform and observe all of the payment and other obligations, covenants, agreements, duties and liabilities of the Parent, under the Existing Credit Agreement, as amended and restated by this Agreement, the other Loan Documents (as defined in the Existing Credit Agreement) to which the Parent is a party and the Fee Letters, (c) the Parent shall be released and discharged from all of the Parent’s obligations and liabilities (including without limitation, all Obligations (as defined in the Existing Credit Agreement) of the Parent) under the Existing Credit Agreement, the other Loan Documents (as defined in the Existing Credit Agreement) to which the Parent is a party and the Fee Letters and (d) the Administrative Agent, the Issuing Banks and the Lenders shall be deemed to have consented to the Assumption and the release of the Parent described in the immediately preceding clause (c).

Section 12.24. Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b) the effects of any Bail-in Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

[Signatures on Following Pages]

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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Credit Agreement to be executed by their authorized officers all as of the day and year first above written.

	EQC OPERATING TRUST


	By:	/s/ Adam Markman
		Name: Adam Markman
		Title: Executive Vice President, Treasurer and Chief Financial Officer